The Openness of Local Government Bodies Regulations 2014 have now been approved by Parliament and are set to come into force at the end of this month. Local authorities now have just 28 days in which to prepare for their meetings being filmed, tweeted or blogged.
The regulations allow any person attending a public local government meeting to take photographs, film and audio-record the proceedings, and report on the meeting. They apply to all English two-tier and unitary authorities, fire authorities, national park authorities, joint committees (such as Police and Crime Panels) and also parish councils. The key change is that the regulations allow for reporting of meetings via social media of any kind, such as tweeting, blogging or via Facebook; however, oral reporting or commentary is prohibited.
We summarised the draft regulations in our previous alert Local government meetings: now the movie – or the crime scene?. DCLG has now issued a draft Plain English guide to the regulations that explains what these new rules mean for the public attending meetings of local government bodies, including meetings of a body’s committees, sub-committees and any joint committees involving two or more bodies. The guide also covers meetings of any council’s executive, including any committees and sub-committees of the executive.
The guide covers all aspects of access to information and meetings, but we focus here on the new reporting rights.
The non-statutory guidance makes clear that local authorities are required to provide “reasonable facilities” to facilitate reporting. They should "use their common sense" to determine the range of reasonable facilities they can actively provide to support the free press but facilities should include space to view and hear the meeting, seats, and "ideally" a desk.
It also stresses that local authorities should conduct their meetings in English.
The new rules do not apply to groups such as neighbourhood forums and Local Enterprise Partnerships. However, such groups, particularly those in receipt of public funds, are encouraged, when having public meetings, to embrace the use of modern technology and should allow the same filming, audio-recording, taking of photographs, tweeting and blogging as apply to local government bodies.
Part 3 of the regulations requires local government officers to make a written record of certain decisions and to make the record available for inspection by members of the public on request. An officer who without reasonable excuse either intentionally obstructs a person exercising the right to inspect, or refuses a request to provide a written record or background papers, is guilty of a criminal offence and is liable on summary conviction to a fine not exceeding level 1 on the standard scale - this is currently £200 but is due to increase to £800.
As drafted, the regulations come into force the day after they are made. The Joint Committee on Statutory Instruments raised concerns about this and asked DCLG to justify this, given that the draft regulations appeared to impose significant new obligations on local government bodies, and create new criminal offences.
It considered that it was "fundamentally objectionable, in the absence of a compelling reason, for a new law which requires persons affected to adopt different patterns of behaviour to be brought into force before they have sufficient time to familiarise themselves with its provisions, and to make any necessary changes to their practices and procedures".
The Committee was not convinced by DCLG's argument that its intentions were widely known in the local government sector nor by its assurances that it would disseminate information about the changes promptly. It concluded that the changes made by the regulations were not so urgent that they had to be brought into force immediately, denying those affected any time to prepare for their implementation.
The regulations are still set to come into force on the day after that they are made. However, CLG Under Secretary of State Brandon Lewis has now given a commitment that the Government will not make the statutory instrument until at least 28 days after the day on which Parliament approves it. That approval was given on 2 July, so the earliest date that the regulations could come into force, in line with this promise, is 31 July 2014 – four weeks from now.
Local authorities now need to ensure that they have arrangements in place to implement the new provisions. The Joint Committee was sceptical of DCLG's view that the regulations require no new significant administrative or organisational burdens, and it pointed out that the Explanatory Memorandum refers to concerns that provisions such as filming or recording a meeting, and recording and publishing decisions taken by officers, would have significant detrimental, costly and disproportionate effects on local councils.
In particular, authorities need to check that their Standing Orders are up to date. DCLG's guide states that if existing Standing Orders are not fully in line with the new legislation, it recommends that in the short-term, the authority should simply waive the relevant provisions of those old Standing Orders which could be taken to inhibit the new reporting rules, and then take steps to update formally its Standing Orders. This will involve changes to the Constitution and authorities will therefore need to do that in accordance with their own procedures for constitutional amendments.
Authorities should also have procedures in place enabling any person wishing to film or audio-record a public meeting to notify the relevant local government staff beforehand, so that all necessary arrangements can be made and the required "reasonable facilities" be provided.
Authorities should also consider adopting a policy on how to deal with those persons whose tweeting or filming causes disruption, and what they do to warn members of the public that if they are attending a council meeting they may be filmed and that it is not within the council's control.
Finally, officers should alert their members, especially their Mayor or Chairman and committee chairs, about the regulations and the impact that there may be, and draw their attention to the guidance.
Many councils now routinely webcast many of their meetings and so may see little real change. And of course, whilst the majority of meetings have been open to the public to attend for a very long time now, many meetings take place without any members of the public being present. This is likely to remain. However, especially when there are controversial matters being dealt with, it is possible to foresee far more coverage of what is going on, and potential disruption, so it is important that you ensure you have clear policies and guidelines in order to deal most appropriately with any situations that may arise.