Why after Pickle’s #righttotweet law will Wirral councillors soon decide on restricting reporting of 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. As the proposed policy is in my view at odds with what the regulations state, I have attached the regulations to this email. I think it is very important that those making the decision on the Standards and Constitutional Oversight Committee actually read Regulation 4 before making a decision on this matter, which you can read for yourself here http://www.legislation.gov.uk/uksi/2014/2095/regulation/4/made .
I also will quote from the explanatory note to the regulations (which you can read in full at http://www.legislation.gov.uk/uksi/2014/2095/pdfs/uksiem_20142095_en.pdf) as to the status of the Guide
“9. Guidance
9.1 While these Regulations are considered to be self-explanatory, the Government plans to produce a Plain English Guide. The Guide will be designed to provide practical information on the Regulations, analogous to the Guide to the 2012 Regulations.”
Regulation 4 of the Openness of Local Government Bodies Regulation 2014
Amendment of the Local Government Act 1972
4. —(1) Section 100A of the 1972 Act (admission to meetings of principal councils) is amended as follows.
(2) After subsection (5) insert—
“(5A) Where the public are excluded from a meeting of a principal council in England under subsection (2) or (4), the council may also prevent any person from reporting on the meeting using methods—
(a) which can be used without that person’s presence at the meeting, and
(b) which enable persons not present at the meeting to see or hear the proceedings at the meeting as it takes place or later.”
(3) In subsection (6), at the beginning of paragraph (c) insert “subject to subsection (7D),”.
(4) In subsection (7), at the beginning insert “Subject to subsection (7A)”.
(5) After subsection (7) insert—
“(7A) While a meeting of a principal council in England is open to the public, any person attending is to be permitted to report on the meeting.
(7B) Subsection (7A) does not require a principal council in England to permit oral reporting or oral commentary on a meeting as it takes place if the person reporting or providing the commentary is present at the meeting.
(7C) A person attending a meeting of a principal council in England for the purpose of reporting on the meeting must, so far as practicable, be afforded reasonable facilities for doing so.
(7D) Subsection (7C) applies in place of subsection (6)(c) in the case of a principal council in England.
(7E) Any person who attends a meeting of a principal council in England for the purpose of reporting on the meeting may use any communication method, including the internet, to publish, post or otherwise share the results of the person’s reporting activities.
(7F) Publication and dissemination may take place at the time of the meeting or occur after the meeting.”
(6) After subsection (8) insert—
“(9) In this section “reporting” means—
(a) filming, photographing or making an audio recording of proceedings at a meeting,
(b) using any other means for enabling persons not present to see or hear proceedings at a meeting as it takes place or later, or
(c) reporting or providing commentary on proceedings at a meeting, orally or in writing, so that the report or commentary is available as the meeting takes place or later to persons not present.”
(7) In section 100E of that Act (application to committees and sub-committees), after subsection (1) insert—
“(1A) But in section 100A, subsections (5A), (7A) to (7F) and (9) do not apply to a committee which is appointed or established jointly by one or more principal councils in England and one or more principal councils in Wales, or a sub-committee of such a committee.”
(8) In section 100J of that Act (application of Part 5A to new authorities, Common Council etc.)—
(a)in subsection (1), after “Except in this section,” insert “and subject as follows,”, and
(b)after subsection (2A) insert—
“(2B) In section 100A, subsections (5A), (7A) to (7F) and (9) do not apply to—
(a) a joint waste authority;
(b) the Common Council other than in its capacity as a local authority or police authority;
(c) a joint board or a joint committee falling within subsection (2) above;
(d) the Homes and Communities Agency; or
(e) a Mayoral development corporation.”.
My comments below are on the draft “Policy on the Reporting of Council Meetings” which is appendix 1 to agenda item 3’s report.
The first sentence of 1.3 is inaccurate as the regulations don’t form part of the Local Audit and Accountability Act 2014 c.2. Section 40 of the Local Audit and Accountability Act 2014 (which came into force on the 30th March 2014) just gives the power to the Secretary of State to put the regulations before Parliament which happened last year. The Openness of Local Government Bodies Regulations 2014 have been in force since the 6th August 2014.
The draft policy itself refers to “Council” meetings (by which is generally meant meetings of all 66 councillors) rather than all public meetings held by Wirral Council. In the last year there have been nine public meetings of all councillors but hundreds of public meetings when its various committees and subcommittees are included. Regulation 4 of the Openness of Local Government Bodies Regulations 2014 modifies section 100A subsection 7 of the Local Government Act 1972 with extra sections 7A-7F which I have already detailed above.
“S.100E of the Local Government Act 1972 (Application to committees and sub-committees) states:
(1) Sections 100A to 100D above shall apply in relation to a committee or sub-committee of a principal council as they apply in relation to a principal council. ”
It needs to be cleared up whether “Council meetings” refers to public meetings of all Wirral Council’s committees and sub-committees or just a meeting of all 66 councillors.
2.3 states “Any reporting/recording of Council meetings/proceedings must be in accordance with the law and this Policy.”
As I will detail below the draft policy conflicts with what the law currently states on this matter. However it would be ultra vires (unlawful) for Wirral Council to try use a policy as justification which supposedly gives chairs of meetings powers to stop filming of meetings that Wirral Council does not have. Since the new regulations came into force, Wirral Council can only prevent reporting/recording at a public meeting (as detailed in Regulation 4(2)) if the press/public are excluded from a public meeting.
4.1 is the part I have the most objection to. I will start with the third to fifth bullet points:
“not film, photograph or otherwise capture the image or face of a person who has raised concern over their rights being infringed by the reporting (or any associated activity). In such circumstances, those seeking to report the meeting should seek advice from the Chairperson (who shall be advised by the legal (or other relevant) officer in attendance);
not film, photograph or otherwise capture the image, body or face of a minor (who shall for the purposes of this Policy be defined as anyone under the age of 18 years) unless express permission has been obtained from the parent(s) of that child(ren);
not film or photograph a vulnerable person who has objected to being filmed or photographed.”
Firstly, there isn’t a right not to be filmed at a public meeting so this is misleading. Secondly just dealing with practicalities some committees (I’ll give Licensing Act 2003 Sub-Committee meetings as one example) will decide on their chair at the meeting itself.
Other public meetings such as the Wirral Schools Forum or the Youth and Play Advisory Committee aren’t run by democratic services, therefore don’t have a solicitor from Wirral Council’s legal department to offer advice.
I will deal with the three issues in turn:
1) A “person” could mean literally anyone. In theory a councillor about to make a controversial decision (such as closing a school or a controversial planning application) could in theory use this to prevent any photos or video of them actually making such a decision appearing in the press. The same could be said about senior officers at Wirral Council proposing such a course of action.
Preventing filming or photography in such circumstances would both be breaching regulation 4 (which requires “any person attending is to be permitted to report on the meeting”) and such a decision would probably place Wirral Council in breach of s.6(1) of the Human Rights Act 1998 “It is unlawful for a public authority to act in a way which is incompatible with a Convention right”, in reference to article 10 which is included below. There are plenty of examples of cases that came before the courts where previous attempts by public authorities to censor “political speech” had been deemed unlawful:
“Freedom of expression
1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Dealing with the second point about those aged under 18, I presume this is in reference to the annual Youth Parliament meeting of Wirral Council.
Last year the BBC filmed and published a 3 hour 40 minute debate by Youth Parliament members in the House of Commons with young people and MPs. I quote from a UK Youth Parliament member for Liverpool Clara Brodie about this event and the filming by the BBC “Young people often feel excluded from politics, and like their voice are neither acknowledged or represented”.
I certainly feel it is odd that the BBC can film (what could be in some cases the same Youth Parliament representatives) debating with MPs in the House of Commons and publish it on their website and broadcast live, whereas Wirral Council wants a ban on filming of local Youth Parliament members doing exactly the same thing with Wirral Council councillors.
Just commenting on children’s contribution at public meetings more widely, I will make the following brief comments. Last year there was a consultation on a new fire station at Greasby and as part of that I attended and filmed a public meeting about it in Greasby.
The second half of the consultation meeting included questions and contributions from the public. This included a contribution from a child who was reported by the Wirral Globe as stating “There are a lot of kids in Greasby. I cross the road everyday and I’m scared there might be an accident, because somebody could get knocked down by a fire engine. This station is an accident waiting to happen.”
Hundreds of people at the meeting heard her heartfelt views on the plans, which were later abandoned. Is by this draft policy Wirral Council stating the political views of children on matters that will affect them should be censored?
Wirral Council has four constituency committees which each have a standing agenda item of public questions (which are generally asked from the audience). It would be at times impossible to film someone addressing a public meeting without also capturing in the background on film those people sitting near them.
Similar issues to those outlined above apply in relation to “vulnerable persons”.
Section 49A of the Disability Discrimination Act 2005 places two duties on Wirral Council that are relevant to this matter:
“49A General duty
(1) Every public authority shall in carrying out its functions have due regard to—
….
(e) the need to promote positive attitudes towards disabled persons; and
(f) the need to encourage participation by disabled persons in public life.”
I do not understand how preventing filming of disabled persons (to give one example of an adult in a wheelchair asking a question about the lack of wheelchair access at local train stations at a Birkenhead Constituency Committee meeting) is either promoting positive attitudes towards the disabled or encouraging other disabled persons to participate in public life?
Moving onto the part of the policy which states:
“not edit or otherwise interfere with any filming, photography or recording of a meeting in such a way that could lead to misrepresentation, misinterpretation, unjust/unfair reputational harm to another or the infringement of the spirit of the Act, the regulations and/or this Policy;”
Currently I publish the video clips on Youtube under a Creative Commons Attribution Licence. This means other Youtube users can create videos based on those I’ve published.
When planning applications are appealed to the Planning Inspectorate, those involved sometimes contact me requesting video footage of what happened at the Planning Committee meeting that originally made the decision being appealed. It therefore sometimes makes sense to publish an edited clip of a Planning Committee meeting just showing that particular agenda item rather than putting it on a DVD and having to charge them.
Video footage of public meetings of Wirral Council is covered by “qualified privilege” as defined by the Defamation Act 1996. As long as the video footage is “fair and accurate”, can’t be shown to be made with malice and is of a matter of public concern, it attracts qualified privilege.
I can’t think of any public meetings (out of hundreds) I have filmed of Wirral Council where these three conditions doesn’t apply and the result of it means I can’t be sued for libel for publishing video of such public meetings. It could be claimed that anything anybody says during such meetings is subject to misrepresentation or misinterpretation as everyone has a slightly different understanding of what specific language means. Therefore this is far too subjective and arguably heading towards the kind of censorship that Wirral Council can’t do as it’s prevented by article 6(1) of the Human Rights Act 1998/Article 10 (as outlined previously).
Moving to “subject to the above, focus any filming and photography (or any other such recording) on councillors, officers, invitees and members of the public who are directly involved in the conduct of the meeting”. Generally I will do this anyway, however to give the example of a councillor asking a question of a Wirral Council officer during a meeting. The officer may have the back of their head towards me, therefore filming them is less interesting to the viewer than seeing how the politician reacts to their answer.
This is one which is impossible to enforce and often for well attended public meetings where hundreds of people turn up, an illustrative photo appears in the press to illustrate the large numbers of people there (sometimes with placards, T-shirts or banners to illustrate what they’re protesting against). This kind of restriction is arguably again contrary to s.6(1) of the Human Rights Act 1998/Article 10.
“carry out reporting without causing any distraction, interference and/or other adverse or unreasonable impact on the meeting or to anyone else in attendance”
From time to time I have to change batteries, zoom in or out or pan the camera or switch cameras after the batteries have run out. All these could be classed as distracting. Again the way this is written is very subjective. The legislation puts a legal duty on Wirral Council to afford those reporting on a meeting “reasonable facilities”.
Those who know the layout of the Council Chamber will know that in front of where the Mayor usually sits there is a table with four chairs which is for the press. However the press can’t use this table (as they used to) any more as to get into the Council Chamber you have to go through a locked door.
The legroom you get at the front row of the public gallery is either designed for children or midgets and at the last public meeting I saw a local newspaper journalist on the second row of the public gallery uncomfortably trying to type on a laptop further down the bench which meant his back was to the meeting. This is while there was a table assigned for the press downstairs in the Chamber where he could have done this in comfort which he couldn’t get to because the doors to the Council Chambers are now locked!
The public gallery itself is in my view unsuitable for filming both because of the restricted space to put up a tripod and due to extremely restricted views of the Council Chamber because of pillars and a safety rail. Clearly, I think the only way Wirral Council could be classed as complying with their legal obligation providing reasonable facilities for filming of Council meetings is to agree somewhere that is currently vacant in the Council Chamber where filming can be done from. Somewhere that has access to mains power would be ideal, as this would mean I could continuously record the meeting from the same camera.
As to the point made under 5.1 that “the Chairperson of a meeting has in his/her discretion the right to designate a specific area within the meeting room for purposes of filming and photography” I would like to make the following comments on practical grounds.
Firstly ideally, this area would be near an available power source for the reasons I’ve outlined. Secondly it is considered best practice to film with natural light sources (such as strong sunlight coming through a window) behind the camera. Therefore a place that the Chairperson may think is suitable might involve filming directly into direct sunlight. Although most meetings are held during the evening therefore this particular issue doesn’t apply, some meetings are held during the day therefore this needs to be taken into account by the Chairperson.
Bearing in mind that section 13.2 of Wirral Council’s constitution states that “All decisions of the Council shall be made in accordance with the following principles”:
“(a) proportionality (i.e. the action must be proportionate to the desired outcome);
(b) due consultation and the consideration of professional advice from officers;
(c) respect for human rights;
(d) a presumption in favour of openness;
(e) clarity of aims and desired outcomes; and
(f) Wednesbury reasonableness (i.e. the decision must not be so unreasonable that no reasonable Council could have reached it, having taken into account all relevant considerations, and having ignored irrelevant considerations).”
I would suggest (bearing in mind the above) the very detailed concerns I have, that consultation with only the Standards Working Group is insufficient. I draw your attention to the next agenda item which also raises concerns about consultation.
Despite the report stating at 8.1 “The legal implications have been set out in this report”, the many legal issues I have outlined have not been referred to.
Recommendation (b) asks the Standards and Constitutional Oversight Committee to agree the policy on reporting on Council meetings and recommend it to Council, but (c) recommends to Council that the Standards and Constitutional Oversight Committee have delegated authority to revise, amend and/or change the Policy on Reporting on Council Meetings.
Recommendation (c) would imply that the Standards and Constitutional Oversight Committee doesn’t currently have within its terms of reference to agree the policy outlined in recommendation (b).
Therefore for the reasons that there has been no consultation with those affected by this proposed policy (such as myself), it’s not proportional, it doesn’t respect human rights, it doesn’t have a presumption of openness nor are its aims or outcomes clear and for the many detailed reasons outlined above, I am asking members of the Standards and Constitutional Oversight Committee to not agree recommendation (b) that this draft policy is recommended for Council for approval.
I look forward to hearing on Tuesday evening the discussion on this item, if you are sending a deputy in your place to the meeting please feel free to forward this email to them.
Yours sincerely,
John Brace
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