Regulations have been laid aimed at introducing greater openness in executive council meetings, but concerns have emerged over the speed of implementation and the challenge of complying with one of the main requirements.
The changes, which will apply from 10 September, include a presumption that all executive meetings will be held in public “unless a narrowly defined legal exception applies”.
There are also provisions covering new legal rights for ‘citizen bloggers’ as well as enhanced rights for individual councillors and scrutiny members.
Communities Secretary Eric Pickles said: "Every decision a council takes has a major impact on the lives of local people so it is crucial that whenever it takes a significant decision about local budgets that affect local communities whether it is in a full council meeting or in an unheard of sub-committee it has got to be taken in the full glare of all the press and any of the public.”
The major changes brought in under The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 are:
- A presumption that all meetings of the executive, its committees and subcommittees are to be held in public (regulation 3) unless a narrowly defined legal exception applies. Councils will no longer be able to cite ‘political advice’ as a justification for closing a meeting to the public or press, or state that decisions being made were not ‘key decisions’. Any intentional obstruction or refusal to supply certain documents could result in a fine for the individual concerned.
- A meeting will only be held in private if confidential information would be disclosed, or a resolution has been passed to exclude the public because exempt information is likely is be disclosed, or a lawful power is used to exclude the public in order to maintain orderly conduct at the meeting (regulation 4). Confidential information is “information provided to the council by a Government department upon terms which forbid disclosure to the public or information which statute or a court order prohibits from being disclosed to the public”. Exempt information is set out in Schedule 12A to the Local Government Act 1972 “and it includes information about a person, or information that would reveal their identity, consultations or negotiations relating of labour relations, or information in connection with preventing and detecting crime”.
- An obligation to provide reasonable facilities for members of the public to report the proceedings as well as accredited newspapers (regulation 4). “This will make it easier for new 'social media' reporting of council executive meetings thereby opening proceedings up to internet bloggers, tweeting and hyperlocal news forums,” the DCLG said.
- Where a meeting is to be held in private, the executive or committee must provide 28 days’ notice during which the public may make representations about why the meeting should be held in public. Where the notice requirements for a private meeting and an agreement of the chairman of the relevant overview and scrutiny committee or chairman of the relevant local authority has been obtained, the decision-making body must publish a notice as soon as reasonably practicable explaining why the meeting is urgent and cannot be deferred (regulation 5).
- There is no longer any statutory reference to “forward plans”. Instead a document explaining the key decision to be made, the matter in respect of which a decision would be made, the documents to be considered before the decision is made, and the procedures for requesting details of those documents, will have to be published (regulation 9).
- For special urgent decisions: where it is impossible to meet the publication requirements before a key decision is made and an agreement has been obtained from the chairman of the relevant overview and scrutiny committee or the relevant local authority to make the key decision, the decision maker must publish a notice to explain the reasons why the making of the decision is urgent (regulation 11). Previously no notice was required, the DCLG said.
- Where an executive has in its the possession a document that contains materials relating to a business to be discussed at a public meeting, members of the local authority have additional rights to inspect such a document at least five days before the meeting (regulation 16). Previously no timescale existed.
- Where the executive decides not to release the whole or part of a document to a member of an overview and scrutiny committee as requested by a councillor, it must provide a written statement to explain the reasons for not releasing such document (regulation 17).
- Publication of any notice by a decision-making body or a proper officer; or any document in relation to a key decision or public meeting and background papers must be on the relevant local authority's website (regulations 5, 6, 7, 9, 10, 14, 15, and 21).
In relation to the recording of executive decisions, the existing regime means that only "key decisions" made by officers require a written statements setting out reasons with such decisions to be available for insection.
However, the new regulations require an officer making a decision "which is an executive decision" to produce a written statement and make it available for inspection, including on the authority's website. This has been interpreted as meaning that councils will need to identify all decisions being made under their delegated authority as executive decisions so that these provisions can be met.
Allan Wells, legal services lead manager at Surrey County Council, said the change to recording officer decision-making “clearly presents a logistical challenge”.
He added: “The reality for us at Surrey is that officers don't make key decisions so the requirement for a written statement from them does not arise at present. However, to have to include details of all executive decisions made by officers is a major shift requiring new processes to be set up, and there has been no lead in time for this at all.”
Nicholas Dobson, a consultant at Pannone, said there were fears that some authorities "might spend a disproportionate effort in publicising a multitude of minor administrative decisions". He added that clarity from the DCLG on the issue would be welcome.
The Regulations can be found here.