'Your Council's Cabinet' - filming Cabinet meetings and other diversions

council chamber1Graeme Creer casts a critical eye over the Government's new guide on attending – and filming – council meetings as well as obtaining documents.

The Department for Communities and Local Government issued a new set of Regulations about the conduct of meetings last August, without any warning, much less any consultation [1].

Local government lawyers were banjaxed by new requirements to publish all the executive decisions taken by officers, by mysterious references to “conflicts of interest”, and by time limits which seemed to ignore previous case law. Above all, though, the press release which accompanied the Regulations made claims which the Regulations themselves simply did not bear out.

Now the DCLG has produced a “guide for local people” – as opposed to interlopers from elsewhere, presumably – called Your council’s cabinet – going to its meetings, seeing how it works, which performs the familiar trick of saying what DCLG think the Regulations ought to have said, rather than what they actually say. Sadly, it repeats the canard that these Regulations made a big difference (“ … an executive was only required to hold meetings in public in certain limited circumstances. A cabinet could largely choose which of its meetings should be held in public thus hindering effective local accountability and scrutiny.”) The abolition of the rule which prevented decisions being discussed in private ahead of the meeting, and rubber stamped in public, has however conveniently been overlooked.

The headline grabber is the vexed question of filming meetings. Webcasting cabinet meetings is excellent practice, but anyone who has ever had a camera trained on them by a serial troublemaker in the public gallery, with no control over whatever edited farrago is eventually posted on YouTube, will know how unpleasant this is, and how it affects the debate.

Last August’s DCLG press release quoted a Chris Taggart of OpenlyLocal.com as saying “councils are prohibiting members of the public from videoing, tweeting and live-blogging their meetings”, implying that they were now required to permit filming. But the Regulations say, in so many words “nothing in these Regulations requires a decision-making body to permit the taking of any photographs of any proceedings or the use of any means to enable persons not present to see or hear any proceedings (whether at the time or later), or the making of any oral report on any proceedings as they take place.”

Of course, you cannot prohibit filming for fun, or out of spite. The only sanction, beyond a polite request to stop, is to eject the film maker, and this is only possible if the process is disrupting the meeting in some way. But this is a decision which the person chairing the meeting is lawfully entitled to take.

The new guide says “The rules require councils to provide reasonable facilities for any member of the public to report on meetings. Councils should thus allow the filming of councillors and officers at meetings that are open to the public.” This is wrong. Filming a meeting is different from “making a report” on it. The press release is headed “New rights for journalists and bloggers to film council meetings”. Wrong again.

To be fair, the guide says that filming should not be “disruptive or distracting to the good order and conduct of the meeting”, but this qualification is not to be found in the Regulations and has been overlooked in the press reports.

And the guide dives into the debate about publishing officers’ decisions. On the face of it, the Regulations require every single executive decision made by an officer to be published on the Council website. The definition refers to “a decision made … in connection with the discharge of a function”. As it is futile, and probably unlawful, for local authorities to purport to take decisions that are unconnected with the discharge of any of their functions, this seemed to catch every single decision any officer ever made.

In common sense this cannot have been intended, and ACSeS [2] obtained Counsel’s opinion that the degree of “connection” was important, whatever that might mean, and produced some useful guidelines. The new guide says “Executive decisions can sometimes be defined in your council’s rules. Decisions which are taken by officers under specific delegations from a meeting of their council's executive are clearly executive decisions. However, many administrative and operational decisions officers take on how they go about their day to day work will be delegated within the council’s rules and are not in this “executive decisions” category; as such they do not need to be recorded.”

The legal logic is distinctly dubious, but the sentiments are fine and go further than many had thought safe. The DCLG also offer a curious list of some of the decisions which, in their opinion, do and do not need to be recorded. If you decide to add a few meters to an allotment site, you have to publish the decision. If you decide to grant rate relief to a business, you do not. It is a pity that they didn’t think about all this before changing the law in the first place.

The point about notice of meetings is a bit arcane, but important in practice. The Regulations require notice of a meeting to be given “five clear days” beforehand. In the Local Government Act 1972, which still governs notice of council and committee meetings, “clear days” is taken to exclude not only the day on which the notice is given and the day of the meeting, but also weekends and bank holidays. There is ancient authority and a 1993 case to this effect [3]. The ACSeS opinion said that this precedent should be ignored for longer periods, such as 28 days, which is clearly meant to mean four weeks, but would apply to shorter periods like five or three days.

The DCLG guide refers to “five clear calendar days”, which would include weekends and holidays. As a general rule, it will be safest to stick to the old principle, but local authorities may be tempted – for one of those urgent, controversial decisions that crop up from time to time – to give notice on the Thursday before Easter and take the decision the following Wednesday. A footnote explains that the guide is not intended to contain definitive legal advice, so this would be risky.

The guide summarises members’ rights to inspect council documents, but the summary is a little too succinct. It omits to mention that access rights do not extend to the advice of a political or mayoral assistant, or to material considered “exempt” under most of the relevant categories.

It also describes the Regulations as “new”. Presumably this survived from the first of the many drafts which have been circulating, in secrecy, within the DCLG for the last ten months. The guide has of course been hailed as another triumph in the war on pettifogging town hall secrecy. In truth, it is just an understandably slanted but valiant attempt to précis the unnaturally complicated rules governing Cabinet meetings. Local authority lawyers will know that you always need to look at the Regulations themselves, though, even if others do not.

Graeme Creer is a consultant at Weightmans. He can be contacted on 0151 243 9834 or This email address is being protected from spambots. You need JavaScript enabled to view it..


[1] The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 SI 2012/2089

[2] Association of Council Secretaries and Solicitors, now Lawyers in Local Government (LLG)

[3] R v Herefordshire Justices (1820) and R v Swansea CC ex p Elitestone Ltd (1993)