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Lawyers and democratic services officers serve pre-action letter on Local Government Secretary over continuation of remote meetings under existing legislation

The Association of Democratic Services Officers (ADSO), Lawyers in Local Government (LLG) and Hertfordshire County Council have served a pre-action protocol letter on the Secretary of State for Housing, Communities and Local Government ahead of potential High Court proceedings seeking a declaratory judgment that would enable local authority meetings to take place within existing legislation.

ADSO and LLG have been lobbying the Secretary of State, Robert Jenrick, to change primary legislation to enable such meetings to take place beyond the current statutory deadline of 6 May 2021 contained in the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority Police and Crime Panel Meetings) (England and Wales) Regulations (No.392).

In a joint statement ADSO chair John Austin and LLG President Quentin Baker said that in the event of this lobbying not being successful, “and to support the Secretary of State in his wish to find a solution”, they had with Hertfordshire instructed counsel to issue proceedings.

Austin and Baker said that once the notice period in the letter expires, if there is no material change to the present circumstances, they will submit their claim to the Court.

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“We are not yet in a position to provide a timeline as to when the case might be heard. We will apply to expedite any proceedings, but it is a matter for the court as to when our case will be listed. We will advise all interested parties when we know more,” they said.

In the meantime, ADSO and LLG are asking local authorities (if not submitted already) to provide them with quantifiable evidence to show the benefits of remote meetings and why they should continue.

The two organisations obtained counsel’s opinion from James Strachan QC of 39 Essex Chambers in relation to the expiry of the regulations and the ability to continue to hold council meetings remotely past 6 May 2021.

The two organisations earlier this month summarised Mr Strachan’s advice as follows:

(1) There are forceful arguments that can be made that the pre-existing legislation governing local authority meetings under Schedule 12 of the Local Government 1972 Act, and meetings of an executive or a committee of an executive under the Local Authorities (Executive Arrangements (Meetings and Access to Information) (England) Regulations 2012, enable local authorities to hold meetings remotely.

(2) For the present situation to continue after 7 May 2021 with the use of remote meetings, the optimum position would be for further legislation to be passed to make the position clear.

(3) In the absence of such legislation, one resolution would be to obtain a declaration from the courts to obtain clarity as to the legal position under the pre-existing legislation.

(4) The Secretary of State does have (a) power under section 16 of the 1999 Act to make an Order to modify or disapply those restrictions for best value authorities and (b) power under the 2000 Act to make regulations governing executive decision-making bodies to hold remote meetings.

LLG and ADSO have consistently called for the ability of English councils to hold remote meetings to be made permanent, with the benefits including reduced travel to meetings, cost savings, increased participation in the democratic process and equality of access to meetings.

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