The Openness of Local Government Bodies Regulations 2014 — questions, answers and unanswered questions

What are The Openness of Local Government Bodies Regulations?

In the summer holidays, DCLG evidently has nothing better to do than rewrite the rules for local authority meetings and decisions. August 2012 saw the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 SI 2012/2089, and August 2014 the Openness of Local Government Bodies Regulations 2014 SI 2014/2095. There seem to be two drivers. The first is the Government's commitment to transparency. As decision-making in local authorities is infinitely more transparent than anywhere else in the public sector, this is more of a fetish than a compelling principle. The second is that a handful of people were supposedly prevented from filming, recording, tweeting or blogging during public meetings. You can see the sense in opening this up and modernising the references, although there need to be checks and balances to ensure that meetings are run properly, that reporting is fair, that genuinely confidential information is protected and that members of the public are not unreasonably inhibited from expressing their views on planning applications and the like. But, of course, this is about much more than filming meetings.

These notes cover “principal councils” — district, unitary and county councils — in England. There are different rules for Parish and Town Councils, the Council of the Isles of Scilly and in Wales. Many of the rules also apply to bodies like the GLA, LFEPA, TfL, joint authorities, economic prosperity boards, combined authorities, fire and rescue authorities, National Parks authorities, the Broads Authority, and the Common Council of the City of London, but their advisers will need to check the legislation in some detail to be sure which do and which do not. DCLG guidance recommends other bodies like LEPs and Neighbourhood Forums to follow the rules about filming, recording and reporting on meetings, but they are not obligatory.

Why are there two sets of rules?

The 2012 Regulations apply to meetings and decisions on executive functions. The 2014 Regulations contain some further thoughts on what should have been in the 2012 Regulations and apply very broadly similar rules to meetings and decisions on non-executive functions. Most of the rules for meetings on non-executive functions are to be found in the Local Government Act 1972 and the Public Bodies (Admission to Meetings) Act 1960 for parish councils, both of which are amended by the 2014 Regulations. The 2012 Regulations were made under the Local Government Act 2000, so they could not alter the 1972 and 1960 Acts, even though the DCLG press release at the time pretended that they had. The Local Audit and Accountability Act 2014 made it possible for the 2014 Regulations to amend the earlier Acts.

What are executive and non-executive functions?

Most authorities operate an “executive” form of governance, under which most decisions are taken by a Leader or Elected Mayor and a small Executive or Cabinet of elected members. These members take decisions on executive functions. Other decisions — non-executive decisions — are taken by full Council, committees and sub-committees. In both cases, decisions can be delegated to officers and ward members. The non-executive functions are listed in legislation, principally The Local Government Act 2000 and the Local Authorities (Functions and Responsibilities) (England) Regulations 2000 SI 2000/2853, as amended. Anything not in the list is an executive function, generally decisions by full Council and on planning, licensing, staffing, audit, member conduct and other miscellaneous matters which are thought to be too sensitive to be entrusted to individual executive members or single-party cabinet meetings.

Can you summarise the rules?

That is not easy. The DCLG publication “Open and accountable local government — a guide for the press and public on attending and reporting meetings of local government” is a valiant attempt at a plain English summary, but it is 33 pages long. As a very rough synopsis, the rules cover:

• The meetings that must be held in public, those that may be held in private, and the procedures that must be followed before a meeting is held in private.
• The rights of members of the public to film or record meetings.
• The public notice that must be given in advance of meetings.
• Public access to reports, agendas and other documents before, at and after meetings.
• The public notice that must be given before certain “key decisions” (the executive decisions which are significant in terms of the expenditure or income, significantly affect communities in more than one ward or meet any other locally determined criterion) are taken by an individual member or officer.
• Public access to the minutes of meetings and to a record of certain decisions taken at executive meetings or by individual members or officers, plus other related documents.

Can members of the public film and record meetings?

Yes, they can! Anyone attending a meeting can “report” on it. This means filming, photographing and recording the meeting, using some other means of capturing the proceedings not yet invented, and commenting on it, but authorities need not allow people at the meeting to make an oral commentary, however quietly. They must be given reasonable facilities to enable them to do so. This means somewhere to sit where you can see and hear what is going on, and according to the DCLG guidance “ideally a desk”. There is no obligation to provide Wi-Fi. You can be prevented from leaving a recording device or a bug in the room to record or broadcast events at a private meeting, though.

There is no need to inform the authority in advance, but the Guidance says that it is “advisable” to do so because the duty to provide reasonable facilities will then apply. The authority cannot require you to ask for permission, and it has no editorial control.

Curiously, these rules do not apply to joint committees established by two or more authorities to exercise non-executive functions. Those meetings must offer facilities to the press, but there is no obligation to allow filming or recording.

Many authorities have now adopted protocols to protect children, vulnerable people and those who may object to being filmed, not only from members of the public (so far as this is possible) but also from the authorities' own webcasts. They usually aim to ensure that people are aware that they are being filmed or recorded and that the recording is of the meeting, not of the people in the public gallery. They may seek to prevent people roaming around the room, making too much noise, using special lighting or flash photography or disrupting the meeting in some other way, and members of the public can be excluded if they are disruptive. They can provide a basis for mediation between those members of the public who wish to record and those who do not wish to be recorded, and for politely requesting that recordings are not edited inappropriately. But these are essentially public events, and there should be no expectation of privacy. Some protocols are currently worded more restrictively than the Regulations permit and will need to be reviewed.

If the participants in the meeting spend more time messaging and tweeting than listening to and taking part in the debate, then that is not against the rules and cannot be helped.

How can meetings be held in private?

These rules have been around for a long time. If the meeting is to consider information ruled to be “confidential” by a Government department, by statute or by or a court, it must be held in private. If it is to consider information that falls within one or more of the categories of information that can be “exempt” from public access, then the meeting can decide formally to exclude the public, giving reasons. The categories cover individual privacy, commercial confidentiality, trades union negotiations, legal privilege and enforcement action, but a local authority's decision to grant itself planning permission must be taken in public. The meeting must decide that the balance of the public interest favours holding the meeting in private. The authority's “proper officer”, who arranges the publication of papers before the meeting, can provisionally anticipate this decision and withhold the information in question, marking the papers with the exemption category. After the meeting, the information is regarded as confidential, the minutes and records need not disclose that information and public access to documents is restricted.

The 2012 rules introduced a new requirement for private executive meetings. Twenty-eight clear days advance notice has to be given that the meeting will be held in private, and why, any objections have to be considered and another notice published five clear days before the meeting (which must also say why any objections have been rejected) subject to complicated rules about urgent decisions. But this requirement does not apply to non-executive meetings.

That apart, the person chairing a meeting can expel a member of the public if their disorderly conduct is disrupting the meeting.

Otherwise, meetings must be open to the public.

Can there be private pre-meetings?

The rules only apply to meetings at which decisions are taken. Informal meetings, including briefing meetings and pre-meetings, can take place in private.

Prior to the 2012 Regulations, there was a rule prohibiting informal meetings of executive members to discuss decisions that were to be taken in formal meetings within the next 28 days, if officers (apart from political assistants) were present and the meeting was not just for briefing purposes. The idea was to stop the executive from taking sensitive decisions in private and rubber stamping them in public. That rule has been repealed, but a decision-taking pre-meeting could well be regarded as a “meeting” to which the Regulations apply, or as unlawful predetermination. But an informal call-over meeting, or a member-only meeting, is lawful in principle.

How are these periods calculated?

“Five clear days” is taken to exclude the day on which the notice is given, weekends and bank holidays and the day on which the meeting takes place, although DCLG says that “twenty-eight clear days” is just calendar days and includes weekends and holidays, which makes sense even if there is no real legal basis for it.

What public notice is needed for meetings?

Notice must be given, and the agenda, reports and “background papers” (see below) published, five clear days before the meeting. No one is quite sure whether a meeting may be held on shorter notice, but in cases of special urgency items and reports may be added and published later.

See below for advance notice of meetings taking key decisions.

What public notice is needed for key decisions?

Key decisions are executive decisions are those which are likely to result in spending or savings which are “significant” in relation to the budget for the service or function in question, or in terms of the effect on communities living or working in two or more wards or electoral divisions. The government can give statutory guidance ion what this means. It did so in 2000, but that guidance has disappeared from the gov.uk website and should probably now be regarded as obsolete. The authority can set thresholds, and most have done so in their constitution.

If an executive meeting, or an individual member or officer, is to take a key decision, then an additional and different notice must be published, 28 clear days before the meeting or decision if practicable. There is an urgency procedure for giving shorter notice if 28 days is not practicable. This is in addition to the notice of meeting. The notice must give details of the decision, who will take it, and when it will be taken.

What are these urgency procedures?

It may not be practicable to give 28 days' notice of key decisions, or 28 and then five days' notice of private executive meetings. In those cases, there are urgency procedures.

In the case of key decisions, the first fall-back (the “general exception”) is, at least five clear days before the decision, to inform the chairman of the relevant overview and scrutiny committee (or every member of the committee if there is no chairman), and publish first that notification and then secondly (as soon as reasonably practicable, but not necessarily within the five days) a notice explaining why it was impractical to give 28 days' notice.

If that is not practicable, there is a second fallback (“cases of special urgency”). A key decision can be taken if the chairman of the relevant overview and scrutiny committee agrees that the decision is urgent and cannot be reasonably deferred. If there is no such chairman, or he or she is unable to act, approval can be given by the chairman or ceremonial mayor of the authority, and in the unlikely event that there is no committee chairman, or authority chairman or mayor, approval can be given by the authority's vice-chairman or deputy mayor. A notice of that approval, giving the reason, must be published as soon as reasonably practicable.

In the case of private executive meetings, if it is impractical to give 28 days' notice or five days' notice, the decision can still be taken in private if approval is obtained from the chairman of the overview and scrutiny committee, or in default the chairman/mayor or vice-chairman/deputy mayor, and public notice is given, in the same way.

The Leader or elected mayor must report to the full Council at least annually giving details of the key decisions taken under the urgency procedure since the last report.

What papers can the public access before, at and after meetings?

Subject to the rules about confidential and exempt information, the public must be able to access agendas and reports when they are published and at the meeting.

Reports must be accompanied by a list of “background papers” — papers containing facts or matters on which the proper officer thinks the report or an important part of it is based, or which in his or her opinion are relied on to a material extent in preparing the report. This does not include “published works” such as legislation, or confidential or exempt information. The public can access these background papers.

The notice of a key executive decision must also list “the documents submitted to the decision maker for consideration in relation to the matter in respect of which the key decision is to be made” and “that other documents relevant to those matters may be submitted to the decision maker; and … the procedure for requesting details of those documents (if any) as they become available”. If the decision is likely to be taken in private, or the papers contain information that is confidential or likely to be exempt, the notice still has to be given, but the documents identified may not contain such information or the advice of officers holding the post of political or mayoral assistant.

The authority must also make a register available giving the names and addresses of its members, their wards or divisions, and details of the members of every committee and subcommittee and of anyone else (other than an officer) who is entitled to speak at their meetings. There must also be a list of the powers delegated to officers which last more than six months, and a summary of the public rights of access. This is now invariably arranged through the authority's website.

What records must be made available?

The minutes of the meeting must be publicly available as soon as they have been approved, usually at the next meeting of the body in question. Even in the case of a confidential or exempt item a “written summary” must be provided.

In addition, there must be a “record of decisions” taken at executive meetings. The record must detail the decision, the reasons for it, and any alternative options considered but rejected. It must also state any conflict of interest declared and any dispensation granted by the Head of Paid Service (on which more later).

Likewise, a similar record must be prepared for executive decisions taken by individual members or officers. This applies to all executive decisions made by members, including decisions made by ward members under delegated powers.

Under the 2014 Regulations, a similar “written record” must be produced of any non-executive decision taken by an officer under delegated powers, provided that the decision is taken:

• Under a specific delegation contained in a council or committee resolution; or
• Under a general delegation (usually the Scheme of Delegation in the Constitution) where the effect of the decision is to grant a permission or licence, affects the rights of an individual or award a contract or incur expenditure which materially affects the authority's financial position.

There is no need to produce a record of this kind if a record containing all this information is already required under different legislation. That is a nice idea, but planning and licensing decisions, for example, do not usually capture the “alternative options rejected” or the mysterious stuff about conflicts of interest.

In both cases, the record must be made public. In the case of executive decisions, so must the report considered by the meeting or the decision-maker, a list of “background papers” (see above) and the background papers themselves. In the case of officers' non-executive decisions, there need not be a report, but any background papers disclosing “facts or matter on which the decision or an important part of the decision [was] based; and [which] were relied on to a material extent in making the decision” must be made public.

If an individual ward member takes a non-executive decision, he or she must inform the authority of the decision within one month, and the authority must publish a record of that information.

None of this requires “confidential” or “exempt” information, the advice of a political adviser or assistant on an executive decision or draft reports (which are not classed as background papers), to be made available. There is a carve-out to prevent the infringement of copyright (unless the authority owns the copyright) in papers that relate to executive decisions, but its scope is not entirely clear.

What is meant by a “conflict of interest”?

No one is quite sure. Under the Localism Act 2011, members have to register “disclosable pecuniary interests”, and cannot take part in decisions that relate to them, and the authority's Code of Conduct may require other personal interests to be registered or declared and that members should refrain from participating in related decisions. Under section 33 of the 2011 Act and the Code of Conduct, the authority can authorise a body or an officer to grant dispensations allowing them to participate if certain criteria are met. The dispensation may be granted by the Head of Paid Service (usually the Chief Executive), or by some other person or body. This is different from the phrase “conflict of interest”, which appears in the Regulations but not in any other relevant legislation. The Regulations say:

• The record of decisions taken at an executive meeting must include any conflict of interest declared by any member of the decision-making body, and any dispensation from the HOPS;
• The record of executive decisions taken by individual members and officers must include any conflict of interest declared by any executive member consulted by the decision-maker, rather than by the decision-maker, and any dispensation from the HOPS.
• The record of non-executive decisions must include any conflict of interest declared by any member of the full Council or the relevant committee when it resolved to confer the delegated power that is being exercised.

This is well-intentioned gobbledegook. Although one school of thought is that “conflict of interest” has a wider meaning than under the Localism Act or the Code of Conduct, and that there is, therefore, an implicit obligation to set up a system to allow the HPS to grant a dispensation for these, whatever they are, most authorities will just record any declarations and dispensations under the Localism Act or their Code of Conduct and hope that that will be sufficient.

What decisions do officers have to record?

Before 2012, the rules about executive decisions only applied to decisions taken by officers if they were key decisions. Under the 2012 Regulations, they apply to all executive decisions, even those which, by definition, are not significant in financial or geographical terms. ACSeS (one of the predecessors of Lawyers in Local Government) sought Counsel's opinion on the scope of this and were advised that minor decisions can be weeded out by ignoring decisions that are not “closely connected” with the discharge of the function, but this is difficult to apply in practice. The DCLG Guidance differentiates between executive decisions and “administrative and operational decisions officers take about how they go about their day to day work”, which is sensible, although the examples that they give are egregious and not very helpful.

The 2014 Regulations cover officers' non-executive decisions which fall within the categories set out above. Again, the DCLG Guidance says that administrative and operational decisions need not be recorded, and gives some peculiar examples. Potentially, though, all sorts of decisions will affect people's rights and should be recorded. A tiny footnote adds “these decisions do not include decisions taken pursuant to an existing framework of rights”. No one knows what this means. In relation to contracts and expenditure, another footnote says that it is for the authority to decide what the threshold is for decisions that “materially affect” its financial position.

We recommend a common-sense approach. Decisions that are purely administrative or operational can be ignored. So should spending, contracting and purchasing decisions (including executive decisions) below the “materiality” threshold, on which the Chief Finance Officer can advise and which should ideally be determined by a formal decision. Decisions over the threshold should be recorded. Decisions under powers delegated by a specific resolution should be recorded. So should decisions under specifically delegated powers set out in the Scheme of Delegation. There will be grey area in between, which will need some thought, but there should not be a problem if this exercise is conducted carefully.

It is arguable that the Regulations require the production of a record of decisions even if the subject matter is exempt from public access. For example, because it is about an individual — such as a service user or a member of staff — or is commercially confidential. The two requirements are set out separately, and commercial confidentiality can evaporate over time. On the other hand, there is no point in developing a vast bureaucracy around social care decisions, for example, if the reports are never going to be published. Authorities will have to make up their own minds on this.

How long do the records have to be kept?

Agendas, minutes, written summaries of confidential and exempt items, reports that relate to items discussed in public, records of executive decisions and the record of a ward member non-executive decision have to be kept for six years.

Background papers must be kept for four years.

How are documents to be made available?

Notice of a meeting must be posted at the authority's office, and in the case of non-executive meetings at the venue if it is not an authority office.

Agendas, reports, records of decisions and background papers must be available for inspection at an authority office. They must be available “at all reasonable hours”. A “reasonable fee” can be charged for access to background papers, but otherwise, access must be free of charge. Members of the public must be allowed to make copies of any of these documents, but may be charged a reasonable fee for copying facilities.

The notices of executive meetings, private meetings and key decisions, agendas and reports for executive meetings and decisions and background papers to executive reports must all be posted on the authority's website, if it has one. So must the record of a non-executive decision taken by an officer, and the background papers.

Newspapers and the media can require copies of agendas and the like, the records of executive decisions, reports and any other documents available to members that the proper officer thinks fit, to be sent to them, but they have to pay for postage.

What sanctions are there for breaking the rules?

It is a criminal offence if anyone holding a document that is publicly accessible under these rules intentionally obstructs its inspection or copying, or refuses to provide a copy, without a reasonable excuse. This is a “level 1” offence and the maximum penalty is currently a £200 fine.

Failure to give the requisite notice of a meeting and so on may mean that the decisions taken at the meeting are unlawful and ineffective, although the courts generally adopt a pragmatic case-by-case approach to technical breaches. The process may be challenged through legal proceedings by a person affected by the decision, usually judicial review proceedings, or by intervention by the external auditor

Breach of the rules is likely to amount to maladministration.