Requirement for meetings under Local Government Act 1972 to be “open to the public” means members of public must be admitted in person: High Court rules

A requirement that a meeting under the Local Government Act 1972 is to be "open to the public" or "held in public" means that members of public must be admitted in person to the place where the meeting is being held, the High Court has ruled.

The ruling by Dame Victoria Sharp, President of the Queen’s Bench Division, and Mr Justice Chamberlain in Hertfordshire County Council & Ors v Secretary of State for Housing, Communities And Local Government [2021] EWHC 1145 (Admin) came a week after they concluded in their main judgment that, in this particular statutory context, a "meeting" must take place at a single, specified geographical location; "attending" such a meeting involves physically going to it; and being "present" at such a meeting involves physical presence at the location [see paragraph 89].

The court then invited the parties to make further submissions on the question whether a meeting which is required by the 1972 Act to take place in person is "open to the public" or "held in public" if the only means by which the public are permitted to access it are remote.

The phrase "open to the public" appears in a number of statutory provisions, including the Public Bodies (Access to Meetings) Act 1960, Part VA of the 1972 Act and s. 9G of the Local Government Act 2000. Regulations 3 and 4 of the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 (SI 2012/2089) refer to meetings being "held in public".

In light of the High Court's main ruling Jonathan Moffett QC, for the Government, said the Secretary of State did not advance a free-standing argument to the effect that "open to the public" and "held in public" were to be interpreted as referring to remote access regardless of whether "meeting" included a remote meeting.

He added that the Secretary of State considered that the legislative scheme should be interpreted consistently and as a whole and therefore, if the expressions referred to in paragraph 89 of the Court's judgment are to be interpreted in the manner there set out, references to a meeting being "open to the public" or "held in public" should equally be interpreted as referring to physical attendance by the public.

The claimants [Lawyers in Local Government, the Association of Democratic Services Officers and Hertfordshire County Council] and the Local Government Association filed short submissions indicating their support for this approach.

Dame Victoria Sharp and Mr Justice Chamberlain said: “At [75] of our main judgment, we did not accept that it was correct to construe the 1972 Act by first ascertaining the meaning of "meeting" and then treating the terms "place", "attend" and "present" as "ancillary". The 1972 Act had to be construed as a whole.

“Nonetheless, the phrases "open to the public" and "held in public" are descriptive phrases. Their meaning depends on the meaning of what is being described. Here, it is a "meeting". If, as we have found, a meeting involves participants gathering to meet face-to-face at a designated physical location and "attending" a meeting involves physically going to that location, a requirement that this meeting is to be "open to the public" or "held in public" means that members of public must be admitted in person to the place where the meeting is being held.”

The judges added: “The current requirements to hold meetings are imposed by the 1972 Act, but there were similar requirements in the predecessor legislation. As we have said, requirements that meetings be "open to the public" or "held in public" are imposed by several different statutory provisions, but they all deal with the same subject matter and may therefore be described as in pari materia. They are therefore "to be taken together as forming one system, and as interpreting and enforcing each other": Bennion, Bailey and Norbury on Statutory Interpretation (8th ed., 2020), §21.5.”

The judges said the terms of s. 1(5) of the Public Bodies (Admission to Meetings) Act 1960 provided a further reason to construe the requirement that the meetings be "open to the public" as requiring in-person admission.

“That sub-section provides that the publication of an agenda, or associated statements and particulars, attracts qualified privilege for the purposes of the law of defamation "[w]here a meeting of a body is required by this Act to be open to the public during the proceedings or any part of them" and the agenda, statement or particulars are "supplied to a member of the public attending the meeting". This is a further indication that the mode by which Parliament intended the public to have access was by physical attendance at the meeting.”

The Divisional Court stressed that none of this prevented a local authority from broadcasting or live-streaming some or all of its meetings so as to allow wider public access. “But such broadcasting or live-streaming does not, on its own, satisfy the requirement for the meeting to be "open to the public" or "held in public".”

The judges said nothing about the numbers of the members of the public who should admitted in person, suggesting that this would “no doubt be subject to current public health or Government guidance”.

But, they added, subject to that practical consideration, or any other legislative intervention, where the requirement for the meeting to be "open to the public" or "held in public" applies, members of the public must be admitted in person as well.

The judges noted that the conclusions they had reached depended on the construction of these phrases in the particular statutory context in which they arise. “Nothing we say here should be taken as settling the interpretation of the phrase "open to the public" or other similar phrases in different statutory contexts.”