What does the Divisional Court's ruling mean for local government? David Kitson, Victoria Barman and Mark Robinson look at what happens next.
On 25 March 2021 Local Government Minister Luke Hall wrote to all council leaders confirming that given the significant progress of the vaccination programme and roadmap for lifting COVID-19 restrictions, as well as current pressures on the legislative programme, the Government had decided not to bring forward the primary legislation needed to extend the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 (“the Flexibility Regulations”) beyond 7 May 2021. These regulations were brought in during the COVID-19 pandemic to enable all local authority meetings before 7 May 2021 to be held remotely and require local authorities to allow members of the public remote access to meetings. On the same date, updated COVID-19: Guidance for the safe use of council buildings (the Guidance) was published.
Today (28 April 2021) the High Court dismissed a claim by the Association of Democratic Service Officers (ADSO), Lawyers in Local Government (LLG) and Hertfordshire County Council for a declaration that the current legislative provisions already permitted remote meetings, which would have allowed for the continuation of local authority remote hearings beyond 7 May 2021. The Court concluded that the Secretary of State was correct in the ‘Connecting Town Halls’ consultation in November 2016 and subsequent response in July 2019 to say that primary legislation would be required to allow local authority "meetings" under the Local Government Act 1972 and the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 to take place remotely. The Court stated that once the Flexibility Regulations cease to apply:
- such meetings must take place at a single, specified geographical location;
- attending a meeting at such a location means physically going to it; and
- being "present" at such a meeting involves physical presence at that location.
Local authorities should now prepare for the end of virtual council meetings on 7 May 2021. Key points include:
- Councils should complete an additional COVID-19 risk assessment.
- Core principles for safely reopening council buildings - any opening plans must be consistent with: core public health guidance regarding health, hygiene and social distancing; safe workplace guidelines, to ensure employees are safe to return to work; and any local lockdown areas of restrictions.
- Councils should review the latest guidance for public places on social distancing; face coverings; test and trace; enforcement and waste disposal in non-healthcare settings.
- Councils should carefully review the latest guidance for managing council buildings and working safely, making sure to apply it locally.
There are options available to councils to ensure that business can proceed whilst making sure that physical meetings take place safely. It is for individual councils to consider the democratic implications of such steps and satisfy themselves that they have met the requirements for public access. These options may include:
- For councils operating under executive governance, all executive powers vest in the Leader or elected Mayor who can take all executive decisions, or delegate those decisions to other executive members or officers. In other words, there is no need for meetings of the executive to be held at all and so a virtual pre-meeting would allow all executive members to have their say
- Virtual quasi-meetings with officer decisions following members giving an ‘in principle’ decision – but officers would have to be authorised to take decisions dealing with everything that the relevant committees could decide (which may be a step too far in some authorities)
- Reduced member attendance by reducing the size of committees at Annual Council
- Reduced member attendance by agreement between political groups to “pair-off (or agree-non-attendance more widely than in twos depending on the political complexion of the authority) although it may be necessary for groups to have “reserves” on stand-by in case members did not abide by those agreements
- Hybrid meetings based on selected politically balanced councillors reaching the quorum in the room, with risk assessments and social distancing, and other members attending virtually to provide their views and indicate how they would vote with a view to persuading those in the room to vote in a particular way
- Use of existing powers to delegate decision making to key individuals such as the Head of Paid Service and Chief Officers, to minimise the number of meetings held (noting that certain functions are non-delegable such as approving the budget or plans in the policy framework, approving political balance and sizes of committees or appointing the Head of Paid Service etc.)
- Conducting annual meetings prior to 7 May remotely while the express provisions in the Flexibility Regulations apply (on short notice if necessary)
- Resuming in person meetings (including annual meetings where necessary) after 17 May, at which point it is anticipated that a much greater range of indoor activity can resume in line with the Roadmap, and
- Continuing to provide remote access to the public to minimise the need for the public to attend meetings physically until at least 21 June, at which point it is anticipated that all restrictions on indoor gatherings will have been lifted in line with the Roadmap (N.B. as stated in the judgment the High Court is yet to give its view on whether a meeting is “open to the public” or “held in public” if the only means of access the public have is remote means).
We are aware of some councils considering the possibility that an adjourned meeting is a continuation of the original meeting and therefore holding a virtual meeting ahead of 7 May 2021 for that meeting to proceed virtually after the guillotine comes down.
Whilst there is no reference in Schedule 12 Local Government Act 1972 to adjournment of a meeting, in the absence of any contrary provision in standing orders, there is a common law power to adjourn: see R. v Carmarthen Corporation (1813) 1 M. & S. 697; R. v Grimshaw (1847) 10 Q.B. 747; and Kerr v Wilkie (1860) 24 J.P. 211. The adjourned meeting is a continuation of the earlier meeting and no further notice is required, but no new business may be transacted unless a fresh meeting is convened: Scadding v Lorant (1851) 3 H.L. Cas. 418.
Any decisions made by a local authority before the adjournment are likely to become effective from that date (and not from the subsequent meeting).
The following steps should be taken in respect of council meetings:
- where councils deem that in-person attendance is not required meetings should continue to be held virtually
- ensuring that only those participants whose attendance is absolutely necessary physically attend meetings and ensuring that social distancing is maintained – at least some officers could join remotely
- providing hand sanitiser in building entrances and meeting rooms
- holding meetings in well-ventilated rooms wherever possible, and
- using floor signage in meeting rooms to help people maintain social distancing.
These developments may be seen as evidential of the lasting impact the COVID-19 pandemic is set to have on society as the Government considers whether to make virtual meetings a permanent option. Importantly, councils should be wary to ensure any future essential in-person meetings take place safely, by following the necessary guidance and undertaking risk assessments.
Councils and local residents are being asked to share their experiences of virtual meetings via a call for evidence on remote meetings, which closes on 17th June 2021. This (presumably along with the previous consultation on Connected Town Halls) will inform any potential further legislation regarding their use beyond the pandemic.