Openness of Local Government Bodies Regulations 2014

Lord McKenzie of Luton Excerpts

Tuesday 1st July 2014 Grand Committee

[Lord McKenzie of Luton (Lab)]

My Lords, I start by thanking the Minister for her explanation of these regulations, and I am delighted to have heard from my noble friend Lord Smith, the experienced voice of local government, who put the Department for Communities and Local Government correct in some of its submissions and reminded us just how precarious the financial position is of local government.

We do not oppose these regulations, although they are not without controversy. Of course, the principle of ensuring that local authority decision-making is accessible to the public so that they can better engage with it and encourage the delivery of value for money is not controversial. We are on the record—or the shadow Secretary of State Hilary Benn certainly is—about supporting the use of modern technology in the course of doing this. There is controversy about bringing the regulations into force the day after they are made. The Minister referred to the Joint Committee on Statutory Instruments, which was clear that it did not find compelling the justification that the department offered for the provision. I was going to ask the Minister to have another go at convincing us, but I understand from what she said in her introduction that the regulations will not be made for 28 days in any event—so in a sense that would give some breathing space.

The Minister could perhaps tell us why the Government eschewed a consultation on these regulations and opted for a short, focused, informal soundings exercise with partners. How transparent is that? We understand that all comments were carefully considered before finalising the regulations but, of course, we are not privy to all these comments. In the interests of transparency, could they be made available? We are told that the LGA did not support the regulations, believing that guidance would have sufficed. The National Association of Local Councils raised concerns over the practical implications of the proposals, and we all had the benefit of the submission of Transport for London, which set out its concerns and those of the GLA.

Will the Minister comment on the points raised on the vague and broadly based category of decisions that will need a written public record? There is a risk that lack of clarity will cause a wider interpretation of what is required with unintended and disproportionate burdens, and the suggestion, for example, that TfL would have to record and publish in the region of several thousands of decisions, including in relation to taxi and private hire licensing. There are concerns, too, over contracts whose terms and conditions include granting a permission or a licence, adding burdens with very little impact on transparency, given DCLG’s local government transparency code of 2014. There are also concerns about provisions on background papers. I do not assert that Transport for London is correct in its concerns, but we are entitled to hear a response from the Minister to what seem to be the very real issues that were raised with us.

On what is perhaps a minor matter, we note that written records must be retained and made available for inspection for six years, but background papers for only four years. Perhaps somebody could explain the difference between those arrangements.

The Minister said in her introduction that it was agreed during the passage of the Local Audit and Accountability Act 2014 that the Government would bring forward new powers to ensure that the public can film, blog or tweet at all meetings of the council, its committees and sub-committees, that they can attend. This is about bringing local democracy up to speed with today’s fast-moving digital age.

These new communication channels enable local authorities to speak quickly and directly to their local communities. As my honourable friend Roberta Blackman-Woods said in another place, the local media industry is sadly in decline. The internet and social media mean that people are accessing news and information online. The circulation of local newspapers has declined and staff and resources have been cut. Today, more and more council meetings are taking place without a reporter in the public gallery.

Over recent years, we have seen local authorities experiment with new ways of broadcasting council meetings such as live streaming video or audio, using Twitter to post updates and uploading transcripts online. Although the number of people watching these webcasts may be small, the online audience is significantly higher than in the meeting room itself, and has the power to grow exponentially. A retweet or a shared Facebook post grows the potential reach of that piece of information by tens or hundreds of people with just one click. We know that many local authorities are struggling to deliver their statutory services so it is right that we give powers to the public to film and record council meetings rather than make it mandatory for councils to do it themselves.

We are used to having our proceedings televised but rules govern how this is done. It seems to me that these rules will not necessarily exist at the town hall, so will the Minister offer her thoughts on circumstances where filming or recording is focused on one member in particular, and done in such a way as to intentionally seek to damage his or her reputation, perhaps by capturing an unguarded and unflattering moment? My honourable friend Roberta Blackman-Woods also referred in another place to the extent to which accommodation must be made for big equipment such as spotlights, but I think the Minister dealt with that in her opening remarks.

We note that there are no formal plans to monitor and review these regulations, which is a pity, but we look forward to the plain-English guide and hope that it will clarify some of the uncertainties around the drafting of these regulations—which, as I said, we nevertheless support.

[Baroness Stowell of Beeston]

My Lords, I am grateful to noble Lords for their contributions. The noble Lord, Lord Smith of Leigh, talked about the need for these regulations and said that there was a reference to him in one of the documents that my department provided to the JCSI.

As I said at the start of the debate, we all believe in openness and transparency. We think that is a good thing and want people to have access to meetings. However, people’s expectations of what that means are changing because of the onset of social media. People no longer want to go to meetings and listen; they want to provide a commentary through tweeting or make a recording so that they can have an element of control in the way that they use the information they have gathered. That is the modern way in which democracy works in terms of public access.

Although the noble Lord is absolutely right to say that there is already widespread use of these forms of access on the part of local authorities, there is, however, evidence of some local authorities not allowing them. I do not think it is right that in this country in 2014 we should be put in a situation where it is possible for some people not to be able to tweet or record a public meeting just because a council thinks that they should not do so.

I can refer to few examples in addition to those to which the noble Lord referred, which I will not repeat. Tower Hamlets, for instance, barred a 71 year-old resident for filming, due to the risk of reputational damage to the authority. In November 2013, it was stated at a meeting of East Riding of Yorkshire Council that it would not allow filming or blogging of any meeting until forced to do so by law. In Middlesbrough, an AGM was suspended because an internet blogger refused to stop filming proceedings; people were told to leave the building after the meeting was suspended while the police were called.

I understand that they may be limited in number, but earlier this year I was in Strasbourg at a Council of Europe meeting, responding to a report of one of the committees there about local democracy in England. There were people in that committee from Turkey and other countries. I wanted to be able to demonstrate that, in our country, we have the kind of freedoms that people believe in and that we will, if those freedoms cannot be accessed, change the law where necessary to make it possible. We have done it in a simple and straightforward way.

The issue of expense has been raised. There is nothing in these regulations that should incur any cost to local authorities, because they are not required to provide any kind of additional facility whatever. I am aware that some local authorities record or even stream their meetings live as they are happening. That is a good thing, but they are not obliged to do so, and we certainly would not make that mandatory. The fact that there is some evidence of restrictions on the public means that we are now making absolutely clear what is possible, which local authorities are in most cases already doing. It should be quite a simple change for people to be able to cope with and implement.

That said—as I said in my opening remarks and as the noble Lord, Lord McKenzie, asked me to confirm—we will not bring the regulations into force until at least 28 days after they have hopefully been approved by Parliament. We have produced a plain-English language guide, a draft of which is available on my department’s website. It addresses the sorts of concerns that are legitimate, such as making sure that this access does not lead to inappropriate disruption. If noble Lords have not yet had a chance to look at it, I encourage them to do so.

I turn to some of the specific points raised by the noble Lords, Lord Smith and Lord McKenzie, which I have not already addressed in my remarks. The noble Lord, Lord Smith, asked about criminal sanctions. It is worth me being clear that the criminal sanction applies only to a situation in which a person without reasonable excuse prevents someone from accessing an existing document. It does not apply to the decision as to whether such a document should be produced; it is a question of there being evidence of somebody obstructing somebody from accessing a document.

On the categories of decisions made by officers on behalf of elected representatives, the regulations do not require the recording of day-to-day administrative decisions taken by officers. Rather, they require the recording of two categories of delegated decisions: those taken by officers under a specific delegation, and certain decisions taken under general delegation, as I mentioned. To the noble Lord’s point that most local authorities are already following good practice in this area, we believe that the work necessary in preparation for these regulations coming into force is quite minimal.

The noble Lord, Lord McKenzie, asked what steps we have taken to consult others about these changes and about our informal soundings. The comments that we received from our soundings are described materially in the Explanatory Memorandum. The plain-English guide will make clear that decisions such as operational ones about, say, tickets, which the noble Lord referred to, do not need to be recorded.

Noble Lords raised the issue of whether access to the chamber for the recording of proceedings might lead to intimidation of councillors. Although it is important to be considerate of members of the public who do not wish to be filmed, we believe that an elected representative should not shy away from being held accountable for their words and actions in council meetings. In cases of actual intimidation, there are of course existing laws that prevent any kind of intimidation that would be threatening in nature.

On the recording of decisions, the noble Lord, Lord McKenzie, asked why background papers need to be kept for four years and decision records for six. This is consistent with existing rules contained in the Local Government Act 1972 for decisions taken by members in council or committees. It is also consistent with the 2012 regulations about the openness of council executives.

The noble Lord, Lord McKenzie, also asked about recording the granting of licences. It is right that, where a licence is granted, there needs to be a written record of the decision taken by the officer concerned. It is right that there should be transparency about the granting of such benefits to private individuals. Indeed, such decisions today will invariably be in writing.

I think I have covered all the points that were raised during the debate. I think that I should thank the noble Lord, Lord McKenzie, for the Official Opposition’s support for the regulations, although I was not entirely sure whether he was supporting them or not. However, there is a certain spirit of support for ensuring that we are as open and transparent as possible.