Social distancing and the temporary closure of some Council buildings to the public during the Covid-19 pandemic has resulted in a "dramatic shift in [the] day-to-day operations" of Local Authorities. This includes how Local Authorities organise and hold their meetings, shifting them from predominantly in-person gatherings to mainly virtual spaces.
Prior to the pandemic, Local Authorities already faced a number of procedural hurdles when holding meetings including a requirement to make those meetings open to the public and the media . Indeed one of the seven principles of public life specifically includes a duty to be "as open as possible about all the decisions and actions [public bodies] take…and restrict information only when the wider public interest clearly demands."
Since 4 April 2020, Regulation 5 of 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 Interim Measures") has expressly permitted the holding of remote Local Authority meetings. The Interim Measures have also allowed Local Authorities to treat members of the public attending a meeting by remote access as if they were attending a physical meeting. Since the introduction of these measures, the Centre for Governance and Scrutiny has reported, "Councils have returned to a full cycle of meetings having ramped up this activity over the course of spring 2020." Arguably, the Interim Measures (by virtue of permitting remote meetings) have brought greater openness, transparency and accountability to the decision-making processes in local government "not only in the way councillors behave, but in how Councils conduct their meetings and make them more accessible to the public."
Whilst the Interim Measures have allowed Local Authority meetings to continue to take place safely, they will expire on 7 May 2021.
Hertfordshire County Council, Lawyers in Local Government and the Association of Democratic Services Officers ("the Claimants") issued a Part 8 claim in the High Court on 11 March 2021. The Claimants sought a declaration from the court that Local Authorities are permitted to hold remote meetings under existing powers within the Local Government Act 1972 ("the LGA 1972") and could therefore continue to do so beyond 7 May 2021. In addition they sought a declaration on the meaning of various LGA 1972 terms:
- a "meeting" was "not limited to a meeting of persons….in the same physical space";
- a "place" included "electronic, digital or virtual locations"; and
- "present" (at a Local Authority meeting) included "attending and/or participating in that meeting by electronic means".
Judgment was handed down on 28 April 2021 in which Dame Sharp and Justice Chamberlain rejected the Claimants' submissions. The Court held that the meaning of the word "meeting" required analysis of Schedule 12 of the LGA 1972 as a whole and this included an obligation to hold meetings "at such place, either within or without their [a Local Authority's] area". The Court interpreted this as being strictly in "reference to a particular geographical location" not including online or virtual settings. The Court also held that "meeting at a single specified geographical location would…ordinarily mean physically going to that location" so that being "present" at a meeting required "physical presence at the specified location". The Court therefore concluded that further primary legislation would be required to permit Local Authorities to hold remote meetings beyond 7 May 2021.
Remote Meetings in the Future
The Ministry for Housing, Communities and Local Government has launched a call for evidence seeking Local Authorities' and other public bodies' views on the current arrangements for holding remote and hybrid meetings. However, the UK Government has also confirmed it does not intend to enact further legislation to permit remote meetings once the Interim Measures cease to have effect. For the time being at least, Local Authorities are set to lose the flexibility to hold meetings online.
The High Court's decision has provided clarity on how Local Authorities must hold their meetings from 8 May 2021. As the UK progresses along the roadmap out of lockdown, the easing of lockdown restrictions may give Local Authorities more confidence in holding in-person meetings, however, they should also consider any prevailing lockdown restrictions in force at the time and current and future guidance on the safe use of Local Authority buildings.
If you are a public body considering how the issues in this article may affect you, please contact a member of our UK public sector team to discuss how we might assist you.