Wirral Council recommends councillors agree to advice that those who contact the press about complaints about councillors are “compromising their position”!

Wirral Council recommends councillors agree to advice that those who contact the press about complaints about councillors are “compromising their position”!                                          As some of the below relates to the press in general I am declaring an interest as that’s my paid occupation. On Thursday evening starting at 5.00pm in Committee Room 3 in Wallasey … Continue reading “Wirral Council recommends councillors agree to advice that those who contact the press about complaints about councillors are “compromising their position”!”

Wirral Council recommends councillors agree to advice that those who contact the press about complaints about councillors are “compromising their position”!

                                        

Cllr Denise Roberts (Chair, Standards and Constitutional Oversight Committee)  (27th November 2014)
Cllr Denise Roberts (Chair, Standards and Constitutional Oversight Committee)

As some of the below relates to the press in general I am declaring an interest as that’s my paid occupation.

On Thursday evening starting at 5.00pm in Committee Room 3 in Wallasey Town Hall Wirral Council’s Standards and Constitutional Oversight Committee meets for a special public meeting.

The papers and agenda for the meeting have been published on Wirral Council’s website, including a 44 page supplementary agenda published late.

Often the motivation at the past at Wirral Council with regards to late papers not sent out with the agenda/reports for the meeting are that it is a way for officers to really make sure something is "rubber-stamped" (and if you really want it rubber-stamped just hand out about two dozen pages of information at the meeting itself on the basis that those on the Committee won’t have time to read it before reaching a decision).

I’ve written an email below which explains my position (in the interests of openness and transparency it is below). I look forward to the meeting itself to see what is decided.


Subject Standards and Constitutional Oversight Committee (Special Meeting) 2nd June 2016 item 4 (Appointments of Panels)
From John Brace <john [at] johnbrace.com>
To Cllr Denise Roberts (Chair, Standards and Constitutional Oversight Committee) deniseroberts@wirral.gov.uk
Copy Cllr Moira McLaughlin (Vice-Chair, Standards and Constitutional Oversight Committee) moiramclaughlin@wirral.gov.uk, Cllr Ron Abbey ronabbey@wirral.gov.uk, Cllr Brian Kenny briankenny@wirral.gov.uk, Cllr Chris Blakeley chrisblakeley@wirral.gov.uk, Cllr David Elderton, Cllr David Elderton davidelderton@wirral.gov.uk, Cllr Gerry Ellis gerryellis@wirral.gov.uk, Cllr Phil Gilchrist philgilchrist@wirral.gov.uk, Cllr Jean Stapleton jeanstapleton@wirral.gov.uk, Cllr Eddie Boult eddieboult@wirral.gov.uk, Surjit Tour surjittour@wirral.gov.uk, Shirley Hudspeth shirleyhudspeth@wirral.gov.uk, Press Office (Wirral Council) pressoffice@wirral.gov.uk
Reply-To John Brace <john [at] johnbrace.com>
Date Today (31st May 2016) 8:39 am

To: Cllr Denise Roberts (Chair)
Cllr Moira McLaughlin (Vice-Chair)
Cllr Ron Abbey
Cllr Brian Kenny
Cllr Paul Stuart c/o Shirley Hudspeth
Cllr Chris Blakeley
Cllr David Elderton
Cllr Gerry Ellis
Cllr Phil Gilchrist
Cllr Jean Stapleton
Cllr Eddie Boult
Professor Ronald Samuel Jones c/o Shirley Hudspeth
Brian Cummings c/o Shirley Hudspeth
Chris Jones c/o Shirley Hudspeth
Surjit Tour
Press Office (Wirral Council)

Dear all,

I do not have email contact details for the independent members on the Standards and Constitutional Oversight Committee and Cllr Paul Stuart and hope that Shirley Hudspeth can give them either a copy of this at the meeting itself, or may know their email addresses to forward them a copy of this email.

I know that two councillors (Cllr Brian Kenny and Cllr Gerry Ellis) are sending deputies and am sending a copy of this both to the councillor deputising and the councillor they are deputising for. If any other councillors are planning to send a deputy to the meeting feel free to forward this to the deputy.

This email is in relation to item 4 (Appointments of Panels) on the agenda of the Standards and Constitutional Oversight Committee meeting to be held on the 2nd June 2016.

The papers for this were published late and can be found in the supplementary agenda. Please note that in order for the committee to consider material published after the 5 clear working days before the meeting, it’s a legal requirement that both the Chair (presumably Cllr Denise Roberts) accepted this item of other business and the reasons for accepting it late are recorded in the minutes. I’m sure Mr. Tour will be familiar with this as it formed the basis last year as to my formal objection to the 2014/15 accounts of the Merseyside Pension Fund (administered by Wirral Council) with the result being that the Pensions Committee had to arrange a further meeting to properly approve the accounts.

However, I have some general questions/queries. In the interests of openness/transparency I’m publishing this email, so it’s not confidential.

1) As the people proposed to be on the Standards Panel & Standards Appeal Panel are also members of the Standards and Constitutional Oversight Committee are both panels being categorised by Wirral Council as a sub-committee, similar to how the Licensing Act Sub-Committee members are also drawn from its parent committee?

2) In the proposed protocol it states,

“12.5 Anyone involved with the investigation will be advised that they may be compromising their position if they communicate with the media on matters relevant to the investigation whilst the investigation is ongoing and that any communication that is made should emanate from the Council’s communication team.”

The legal requirement for secrecy of those involved with the investigation of complaints about councillors was repealed some time ago. Because of s.6 of the Human Rights Act 1998 a public authority (such as Wirral Council) can’t make a decision which causes it to act in a way incompatible with a Convention right. This suggestion in the protocol would seem to conflict with both the Article 10 (freedom of expression) Convention right and the whistleblowing provisions in the Public Interest Disclosure Act 1998. I would therefore either like a detailed explanation as why this is proposed (or why I am wrong) or for it to be removed from the proposed policy before it is agreed.

3) Part 21.1 of the proposed policy refers to “7C of the Council Access to Information Procedure Rules”.

This refers to the following reason for excluding the press/public at a meeting:

“7C. Information presented to a standards committee, or to a sub-committee of a standards committee, set up to consider any matter under regulations 13 or 16 to 20 of the Standards Committee (England) Regulations 2008, or referred under section 58(1)(c) of the Local Government Act 2000.”

A local council can only use powers it legally has to do something. Standards complaints about councillors are no longer considered under s.58(1)(c) of the Local Government Act 2000 (which was repealed) or the Standards Committee (England) Regulations 2008.

Therefore the references to a repealed legal power need to be brought up to date to the current position and Wirral Council’s constitution updated to prevent confusion.

I plan to attend the meeting itself and look forward to hearing an answer to this email then.

Yours sincerely,


John Brace
Editor
https://johnbrace.com/
A blog about Wirral Council’s public meetings, Wirral Council’s councillors, Bidston & St. James ward and other public bodies on Merseyside

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Why are Wirral councillors trying to kill off press freedom by a new public meetings filming ban?

Why are Wirral councillors trying to kill off press freedom by a new public meetings filming ban?

Why are Wirral councillors trying to kill off press freedom by a new public meetings filming ban?

                                              

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Video of the Standards and Constitutional Oversight Committee from 3rd March 2015, the item on filming starts 43 seconds into the meeting

Surjit Tour (Monitoring Officer at Wirral Council) gives councillors his opinion at the meeting that he doesn't think the draft policy banning filming breaches the Human Rights Act 1998 3rd March 2015
Surjit Tour (Monitoring Officer at Wirral Council) gives councillors his opinion at the meeting that he doesn’t think the draft policy banning filming breaches the Human Rights Act 1998 3rd March 2015

Last year I wrote a piece on this blog headlined The day democracy and freedom of the press died at Wirral Council: 28th October 2014 and earlier this week published my email to councillors on the Standards and Constitutional Oversight Committee detailing my concerns about a proposed policy banning filming at public meetings of Wirral Council.

Last night councillors (as you can see from the video above) on Wirral Council’s Standards and Constitutional Oversight Committee agreed to bash the final nail in the coffin of press freedom to report on public meetings of Wirral Council and recommended to all councillors at the next Council meeting on the 16th of March that press freedom remain dead and buried (that is they recommended a draft policy on the reporting of all public meetings of Wirral Council).

Around the time a new law (the Openness of Local Government Bodies Regulations 2014) came into force last August, which prevented local councils stopping filming of their meetings, Eric Pickles was quoted as saying "How can we criticise Putin’s Russia for suppressing freedom of the press when, up and down the land, police are threatening to arrest people for reporting a council meeting with digital media?"

Labour councillors on the Standards and Constitutional Oversight Committee last night repeatedly prevented any discussion by opposition councillors on the controversial subjects of the closure of Lyndale School and library opening hours. If councillors from the ruling group can’t respect and listen to viewpoints they may not agree with, how can democracy actually function at all on Wirral Council?

Despite concerns I expressed at the meeting itself about the lack of consultation and concerns over whether the draft policy breached both section 6(1) of the Human Rights Act 1998 (in respect of Article 10 on freedom of expression) and Regulation 4 of the Openness of Local Government Bodies Regulations 2014, councillors agreed to recommend it to the next Council meeting.

The draft policy (if approved by Council) will mean that at the start of the meeting the Chair will ask anyone if they have any objections to the meeting being filmed. If someone does object the Chair will stop the meeting being filmed. However any legal powers Chairs may have had to stop filming of public meetings were repealed by the Openness of Local Government Bodies Regulations 2014 last year.

The policy goes much further and states a ban on editing filming, photography or recording of a meeting that could cause “reputational harm”.

Wirral Council seem to not recognise the importance of the independence of the press and councillors on the Standards and Constitutional Oversight Committee don’t seem to think there is anything wrong with this policy.

If you’re from the Wirral and would like to make your views known to your local councillors ahead of the Council meeting on the 16th March, their contact details are on this page. As emails to councillors are no routinely filtered, I would suggest phoning or writing by mail.

If you’re have a WordPress blog, please feel free to reblog this post. If you’d like to write about the draft policy it is on Wirral Council’s website and the other papers and reports for the meeting can be found on Wirral Council’s website here. The code to embed the Youtube video of the meeting can be found by visiting Youtube and clicking on share then embed.

You can also give your opinion whether you think this policy is a good idea or not in the poll below:

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Why after Pickle's #righttotweet law will Wirral councillors soon decide on restricting reporting of public meetings?

Why after Pickle’s #righttotweet law will Wirral councillors soon decide on restricting reporting of public meetings?

Why after Pickle’s #righttotweet law will Wirral councillors soon decide on restricting reporting of public meetings?

                                                            

A photo of Councillor Phil Davies at the last Council meeting announcing a council tax freeze, an example of the sort of photo covered by a new draft policy on reporting on Wirral Council's public meetings
A photo of Councillor Phil Davies at the last Council meeting announcing a council tax freeze, an example of the sort of photo covered by a new draft policy on reporting on Wirral Council’s public meetings

Below is an email from myself to those on Wirral Council’s Standards and Constitutional Oversight Committee about a proposed policy on the filming of Wirral Council’s public meetings.

To: Councillor Bill Davies
CC: Councillor Moira McLaughlin
CC: Councillor Robert Gregson
CC: Councillor Denise Roberts
CC: Councillor John Salter
CC: Councillor Les Rowlands
CC: Councillor Gerry Ellis
CC: Councillor John Hale
CC: Councillor Pat Williams
CC: Shirley Hudspeth
CC: Tayo Peters

subject: Standards and Constitutional Oversight Committee meeting 3rd March 2015 Agenda item 3 Summary of the Work and Proposals of the Standards and Constitutional Oversight Working Group

Dear councillors (and others) on the Standards and Constitutional Oversight Committee,

Attached to this email should be a copy of the Openness of Local Government Bodies Regulations, the explanatory memorandum to the regulations, the report to Tuesday’s Standards and Constitutional Oversight Committee meeting and the appendix to the report which is a draft policy.

I do not have email addresses for the independent members on the Standards and Constitutional Oversight Committee, so I’m copying this email to Shirley Hudspeth in the hope that they can receive a copy at the meeting itself.

I would also like to speak at Tuesday’s meeting of the Standards and Constitutional Oversight Committee on agenda item 3 as the issues raised here can be rather technical in nature and it is possible that people may wish to ask questions on what I’ve put here.

The report states at 2.10 “The Council’s position with regards to reporting/filming at Council and committee meetings is in essence determined by The Openness of Local Government Bodies Regulations 2014 (“the Regulations”) which came into force in August 2014. A copy is attached to this report.”

Unfortunately a copy of the Openness of Local Government Bodies Regulations 2014 has not been attached to the report as stated in Surjit Tour’s report. Continue reading “Why after Pickle's #righttotweet law will Wirral councillors soon decide on restricting reporting of public meetings?”

4 councillors ban filming at Merseyside Police and Crime Panel public meeting but support police filming the public

4 councillors ban filming at Merseyside Police and Crime Panel public meeting but support police filming the public

4 councillors ban filming at Merseyside Police and Crime Panel public meeting but support police filming the public

                        

Police and Crime Panel meet at Birkenhead Town Hall 24th April 2014

Merseyside Police and Crime Panel (Birkenhead Town Hall) 24th April 2014 taken after the meeting had finished Left to Right Knowsley Metropolitan Borough Council officer, Councillor Frank Prendergast (Vice-Chair) (Labour, Liverpool City Council), Knowsley Metropolitan Borough Council officer, Knowsley Metropolitan Borough Council officer, Joseph Edwards (Independent Co-opted Member) (Mr. Edwards wasn’t present from the start of the meeting but arrived late), Councillor Moira McLaughlin (Labour, Wirral Metropolitan Borough Council), Councillor Doreen Kerrigan (Labour, Sefton Metropolitan Borough Council), Councillor Peter Brennan (Labour, Liverpool City Council)

The meeting started with two announcements the Vice-Chair (Councillor Prendergast) wished to make. The first was he asked for the noisy tea urn at the back of the room to be switched off as he said he had hearing problems. The second announcement Councillor Frank Prendergast (Labour, Liverpool City Council) wanted to make was to say that a request was made to film the public meeting of the Merseyside Police and Crime Panel which he had turned down because “confidential” things may be said during the meeting. However he said the public were welcome to stay for the whole meeting.

At this point as the Chair said it was his decision, I asked if he was making that on behalf of the whole Merseyside Police and Crime Panel as their rules of procedure agreed by the Merseyside Police and Crime Panel last July stated that this decision was of the whole Panel:

“21.1 No audio or visual record of proceedings (or part of the proceedings) of a Panel, Sub-Committee or Working Group meeting may be taken without the express permission of the Panel, Sub-Committee or the Working Group concerned.”

He replied that he was. None of the other three Labour councillors present said anything at this point, nor was a vote taken. I asked the Chair at the close of the meeting to provide a quote as to why he’d been against the public meeting being filmed. He told me he was too busy to provide a quote as he had to leave (the meeting was held in Birkenhead) to go to Clatterbridge via Liverpool.

Although the Openness of Local Government Bodies Regulations 2014 which prevent bodies such as the Police and Crime Panel stopping filming of their public meetings have been laid before the House of Commons on the 3rd April 2014 by the Rt Hon Eric Pickles MP, due to Parliament breaking up for Easter a week later a resolution approving the Openness of Local Government Bodies Regulations 2014 hasn’t yet been passed by the House of Commons and House of Lords. So it doesn’t yet have the force of law.

However this is what Labour’s front bench spokesperson, Hilary Benn MP had to say when the issue was debated last year in the House of Commons:

“We will therefore support that change, and also the proposal that councils in England should allow the recording and videoing of council and committee meetings. In this day and age, big changes in technology make recording and videoing readily possible, and I cannot see the difference between sitting in a meeting, listening and writing down what is being said, or—for those who have shorthand—taking a verbatim record, and making one’s own recording.”

                                         
The Merseyside Police and Crime Panel is a joint committee of the councils on Merseyside. The new Labour chaired Liverpool City Region Authority also declined a request to film their first public meeting. The Liverpool City Region Authority’s constitution delegated such matters to the Chief Executive of Knowsley Metropolitan Borough Council Sheena Ramsey. Knowsley Metropolitan Borough Council is also the host authority for the Merseyside Police and Crime Panel.

Has the message from Labour’s front bench spokesperson Hilary Benn MP to “support the change” to “allow the recording and videoing of council and committee meetings” fallen on deaf ears? Do the four Labour councillors who made the decision to prevent filming yesterday (Councillor Frank Prendergast, Councillor Doreen Kerrigan, Councillor Peter Brennan and Councillor Moira McLaughlin (who is currently Labour’s candidate in Rock Ferry ward)) realise how strange it seems for their party’s national spokesperson to say one thing yet Labour councillors locally on Merseyside to do the complete opposite?

My comments on what happened are that currently the public (and press) already do have the right to film, blog and tweet at public meetings. This is granted to them by article 10 (freedom of expression) of the Human Rights Act 1998 c.42. It is unlawful for any public body to act in a way that is incompatible with article 10 (freedom of expression) due to section 6 of the Human Rights Act 1998. In an ironic twist the Merseyside Police and Crime panel during the meeting discussed the wearing of cameras in public by police officers and were supportive of it.

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Government publishes privacy (8), freedom of expression and assembly (10&11) human rights arguments on filming public meetings law

Government publishes privacy (8), freedom of expression and assembly (10&11) human rights arguments on filming public meetings law

Government publishes privacy (8), freedom of expression and assembly (10&11) human rights arguments on filming public meetings law

                        

I thought it was about time to give a brief update on the filming issue and how the Local Audit and Accountability Bill is progressing through the Houses of Parliament.

On Tuesday it finished its last stages in the House of Commons (third reading and report stage) and is expected to become law around February 2014. Sadly when it becomes law in February 2014 it doesn’t settle the filming issue as section 40 (entitled access to local government meetings and documents) in the Local Audit and Accountability Bill around filming which you can read for yourself on Parliament’s website merely grants the power to the Minister to make further secondary legislation in this area.

Also in its commencement section (49(2)) which you can also also read in the same document on Parliament’s website the section on filming (as well as the more controversial section on local authority publicity) won’t come into effect until two months after the Local Audit and Accountability Bill becomes law (which if it does become law in February 2014 means it’ll be April 2014 at the earliest before there is secondary legislation on the matter).

As nobody really knows what the wording of the secondary legislation will be yet and section forty is open to a number of interpretations there have been some concerns expressed about what form it will take. I think it’s already been mentioned that the Government want to consult with the Local Government Association on this first.

Published this morning were the explanatory notes on the Commons amendments to the Local Audit and Accountability Bill which include at page 13 a statement on “compatibility with the European Convention on Human Rights”.

I will quote from this section here (the quotes are in numbered bold paragraphs with my commentary below them), hopefully it allays some fears people had over what the secondary legislation is about and repeats the article 10 (freedom of expression) arguments I’ve been making to Wirral Council about filming for some time!

60. The amendments to the Bill which would allow residents attending meetings of the full council, its committees and sub-committees to act as citizen journalists potentially engage some rights under the European Convention on Human Rights (“the ECHR”).

This is just a statement of fact, written in the ever careful language of lawyers, in my opinion they don’t “potentially engage”, they do engage.

61. The provisions would enable the Secretary of State to make regulations which are either free-standing or amend the relevant provisions in Part 5A of and Schedule 12 to the Local Government Act 1972, the Public Bodies (Admission to Meetings) Act 1960 and the Greater London Authority Act 1999 and that mirror the following elements of the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 (“the 2012 Regulations”):

  • The use of websites for the publication of information such as agendas, minutes and connected reports;
  • The ability of the public to attend meetings to act as ‘citizen journalists’ (facilitating the reporting of meetings by individuals on social media); and
  • Recording the decisions taken by officers.

Basically parts of the laws mentioned could do with being repealed to make the situation on filming clearer for both local Councils and those doing the filming. Otherwise there’ll be (once the secondary legislation is passed) about six different bits of law stating slightly different things about the filming issue which would be a recipe for confusion and misunderstandings (especially as each bit of law can be interpreted in different ways). Two of the acts were written before the Human Rights Act 1998 c.42 came into effect. Had they been drafted after 1998 the clauses about filming would have had to be drafted in such a way to take into account article 10 rights to freedom of expression.

The first bullet point I think refers to the media and bloggers publishing information such as agendas, minutes and reports on their blogs rather than linking to the official version on the website of the organisation they’re reporting on. This is already covered in respect of Cabinet meetings in the 2012 regulations, which also grants qualified privilege to publishers in respect of publication of these documents.

The second bullet point is about widening the definition of media to include those writing and publishing online. The current definition in the legislation of media (apart from Cabinet meetings n the 2012 regulations which already covers new media) covers newspapers, media agencies (those who supply stories to newspapers) and those recording sound or video for news broadcasts (local radio and TV) as well as those classed as programme services under the Broadcasting Act 1990. Curiously that last definition is so broad it covers publishing video footage of Wirral Council meetings online (or any public meeting of a local Council).

62. These changes follow what is already provided for in the 2012 Regulations.

My reading of this is that the secondary legislation resulting from this section of the Local Audit and Accountability Bill (apart from the potential for amending provisions of earlier legislation) will extend the regulations outlined in the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 (“the 2012 Regulations”) to all public meetings of local councils, as well as the other bodies specified in the Local Audit and Accountability Bill.

Examples of other bodies referred to in the Local Audit and Accountability Bill would be integrated transport authorities. Locally that would be Merseytravel (which may well be have changed completely and be absorbed into the Merseyside Combined Authority by the time the secondary legislation has effect) and the Merseyside Fire and Rescue Authority.

63. The Bill as amended would also provide that the Secretary of State has powers to ensure that the public can film, blog, or tweet at all meetings of a full council, its committees and sub-committees; meetings of an executive, its committees and sub-committees; meetings of parish and town councils and Greater London Assembly meetings. This is a new proposal which reflects the changes in technology enabling broader access to information and new methods of reporting and recording council meeting proceedings.

Personally I don’t have a mobile phone so I can’t blog or tweet live at a public meeting. If I remember correctly the guidance previously issued by the Rt Hon Eric Pickles MP on filming meetings relied on legislation that technically didn’t cover parish and town councils which caused some issues. I don’t know of any parish or town councils in the Wirral and as far as I know Greater London Assembly meetings are already filmed as I’m sure I’ve previously seen Boris Johnson facing questions as the Mayor of London on the BBC Parliament channel.

64. Articles 8 (right to respect for private and family life) and 10 (freedom of expression) of the ECHR may be engaged in relation to the provisions regarding openness of council meetings. Neither of these rights is absolute and they include in their respective second paragraphs details regarding the basis on which the right may be limited.

65. Article 8 has potential to be engaged but it appears unlikely in these circumstances. The meetings being open to public attendance are unlikely to fall within the definition of “private and family life”. Lord Hope and Lord Nicholls in the case of Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22 both made clear in their judgements that the first step to consider if the matter falls within the sphere of private and family life. The latter described the approach to take as follows: “the touchstone of private life is whether in respect of the disclosed facts that the person in question had a reasonable expectation of privacy”. The court in HRH Prince of Wales v Associates Newspapers Ltd [2006] EWCA 1776 highlighted that whilst there was a division over the conclusions in Campbell there was no division regarding the relevant approach in law. Given that the council meetings considered by the Bill would be held in public (unless there was a justifiable reason to exclude the public), it is difficult see a sustainable argument that attendees would have a reasonable expectation of privacy so as to engage Article 8.

Article 8 is a red herring really, as pointed out there can’t be an expectation of privacy at a public meeting open to anyone to attend where there could be over a hundred present (if it’s a particularly controversial planning application) who would hear what was said and see what was going on. From what I remember, even Wirral Council’s councillors have never claimed filming can’t happen on privacy grounds.

66. Whilst it is unlikely that the attendees’ Article 8 rights would be engaged, if a successful argument were to be made, paragraph 2 of Article 8 allows for the limitation of these rights. The Article 8 rights of those who are attending the meetings (cf. to those attending and reporting) can arguably be qualified on the basis that the limitation is:

a. in accordance with the law; as prescribed by the Bill and regulations made using the powers it contains.
b. is necessary in a democratic society. This is on the basis that wide public access to meetings and reporting on meetings increases accountability. The level of scrutiny which the public expect is influenced by the availability and ease of using different reporting methods, and this has increased since the advent of social media including blogging, tweeting etc and is further influenced by the ease of access to this technology. There is an expectation now that the public should have the ability to subject their representatives to closer and more direct scrutiny; an expectation that is shared both by members of the public and their representatives.
c. is for the protection of the rights and freedoms of others; namely the Article 10 rights of those reporting the meeting.

As pointed out above, article 8 is a qualified right and the rights of people to report public meetings has to be protected.

67. The provisions which would allow for regulations to be made on the prevention of the public from filming, reporting etc of council meetings may engage Article 10. However, it should be noted that it is envisaged that prevention of filming, reporting etc will largely be in the same circumstances in which the public would also be excluded from the meeting. As such the new provisions regarding prevention of filming, reporting etc would reflect the existing provisions on exclusion, including the common law right to exclude the public from meetings to suppress disorderly conduct. Insofar as there is a limitation on the Article 10 rights of potential attendees, this restriction can be justified on the basis that the prevention of filming, reporting etc and exclusion from meetings provisions are drafted in a manner to ensure those decisions are not arbitrary. For example the existing provisions on exclusion state the grounds on which a council may decide to hold a closed meeting, which include: where confidential or sensitive information is to be disclosed or discussed; or where the public are excluded under the common law right to suppress disorderly conduct. These reasons fall within the exceptions included within paragraph 2 of Article 10. Such reasons would be necessary in a democratic society if by not having the option to exclude public attendance would prevent the council from effectively carrying out its business. Furthermore, the exclusions would be prescribed by law as the justifications for preventing filming will be set out in the regulations and the justifications for exclusion from meetings are set out in primary legislation.

Firstly the issue of the press and public being excluded from a meeting, the suggestion that if the right to film covered the whole meeting meaning that recording equipment could be left behind and record the private part of the meeting is frankly a little ridiculous! However there are people that can stay and observe the private parts of meetings (such as other councillors and officers) that if the secondary legislation was poorly drafted would have a right to film or record these private sessions when the press and public were excluded.

I have no problem (and I don’t think anybody else would) with filming being prevented during parts of the meeting that the press and public are excluded from, however the phrase “largely be in the same circumstances” hints at other reasons to prevent filming which is worrying.

The common law right to suppress disorderly conduct is referred, yet it states “provisions are drafted in a manner to ensure those decisions are not arbitrary”. Last year at a public meeting of Wirral Council’s Sustainable Communities Overview and Scrutiny Committee, a Wirral councillor (Cllr Jerry Williams, Labour) (you can read the minutes for yourself here) went so far as to suggest that filming itself to him is regarded as disorderly conduct (rather embarrassingly six members of the Sustainable Communities Overview and Scrutiny Committee then went on to use a piece of legislation that only applies to Cabinet meetings as a rationale to prevent filming).

An opinion as to what or what isn’t disorderly conduct is (as shown in the previous paragraph) entirely arbitrary and I hope the secondary legislation states explicitly that silently filming a meeting can’t be seen as grounds for exclusion from the meeting under the disorderly conduct provisions already in the legislation.

So repeating somewhat what I said above, in my view the justification of preventing filming by excluding the press and public from the meeting is fine, the issue of preventing abuse of the disorderly conduct provision in legislation to prevent filming needs to be explicitly stated and I can’t see there being any other justifications for preventing filming.

68. Article 11, freedom of assembly and association, should also be considered. The right to freedom of assembly includes participation in public meetings. However, Article 11 is a qualified right which can be restricted. The basis of the restrictions include that is in the interests of national security or public safety, for the prevention of disorder or crime or for the protection of the rights and freedoms of others. As such the position in relation justifying qualification of Article 11 is much the same as it is for Article 10 freedom of expression.

The right of the public to be at public meetings is already in legislation and the fact that Article 11 specifically states “peaceful assembly” means that article 11 isn’t engaged if people engage in disorderly conduct. I presume this is referring to the public and press being excluded from private sessions of meetings.

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