Government to support High Court claim regarding councils’ ability to hold remote meetings post 6 May 2021

It has been reported by LocalGovernmentLawyer that the government will support legal action over the ability of councils to hold remote meetings that, in the absence of a High Court order otherwise, will come to an end after 6 May 2021. It reports as follows:

The Local Government Secretary, Robert Jenrick, has said the Government will support the High Court claim being brought by Lawyers in Local Government, the Association of Democratic Services Officers and Hertfordshire County Council over the ability of councils in England to hold remote meetings.

The Ministry of Housing, Communities and Local Government confirmed that, in papers provided to the Court to support the claim, the Government recognised that there was “a case to be heard” that the Local Government Act 1972 should be interpreted as allowing for virtual meetings “as the legislation was passed at a time when virtual meetings could not have been envisaged”.

The case will be heard by the High Court on 21 April.

Jenrick said:

“Councils have done a fantastic job over the last year and remote meetings are just one innovation of many. We recognise remote or virtual meetings by councils, have widened access to local democracy and we will be keen to lock in the good work councils have undertaken during the pandemic to embrace technology. However, appropriate safeguards must be in place to ensure transparency, scrutiny and probity are maintained.

In the event the action is not successful, the temporary provisions in the Coronavirus Act regulations will come to an end after May 6, and so councils should continue to prepare for that eventuality. Guidance has been issued to help councils to meet safely and securely. The Ministry of Housing, Communities and Local Government is conducting a call for evidence on the use of remote meetings and we would encourage councillors and members of the public to participate, so that we can better evidence the next steps.”

The MHCLG added that it was essential that councils “can be held to account by their residents, and to ensure that any future arrangements regarding remote meetings continue to strengthen both scrutiny and transparency”.

Last month the Local Government Association described as “extremely disappointing” the Government’s decision not 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, which expire on 7 May 2021.

Ministers have said such an extension would require primary legislation and the impact this would have on the Government’s legislative programme.

The LGA and the National Association of Local Councils are backing the claim brought by LLG, ADSO and Hertfordshire CC.

This announcement follows:

Responding to the announcement that emergency legislation allowing virtual council meetings will not be extended, Cllr James Jamieson, Chairman of the Local Government Association, said:

“This decision is extremely disappointing. The Government’s own roadmap out of lockdown states that indoor gatherings or events – organised by a business, charity, public body or similar organisation – cannot be organised until May 17 at the earliest. Yet councils will be unable to hold remote meetings from May 7. MPs will retain the right to participate remotely until at least June 21 but the powers-that-be in the House of Commons will not make time available to legislate for councillors to do the same.

The case is clear for the ability for councils to continue to be able to hold meetings flexibly. We urge the Government to reverse this decision and not force councils to have to hold COVID-19 secure face-to-face council meetings until all restrictions are lifted.

Holding face to face council meetings, with supporting staff, could easily involve up to 200 people in one room even before adding in members of the public and reporters. This is likely to be a significant challenge with councils, for example, having to source larger venues in order to be able to host meetings with social distancing measures in place, such as full council meetings which will need to be held following the May local elections.

This also risks damaging the gains seen in public participation in remote council meetings during the pandemic and our vital local democratic process.

Left with no choice, Lawyers in Local Government, the Association of Democratic Services and Hertfordshire County Council have made an application to the Courts to declare that councils already have the powers needed to hold online meetings. The LGA will be providing support in these proceedings as the representative body for councils.”

UPDATES:

1. On 28 April 2021, the High Court delivered judgment in the case of (1) Hertfordshire County Council, (2) Lawyers in Local Government and (3) The Association of Democratic Services Officers v Secretary of State for Housing, Communities and Local Government [2021] EWHC 1093 (Admin), dismissing the Plaintiffs’ application for a declaration that remote council meetings (which include meetings of council committees and sub-committees) are legal under the Local Government Act 1972.

The High Court summarised the issue for determination as follows: “the question before us today is whether the 1972 Act will permit remote meetings in England when the Flexibility Regulations [i.e. the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020] cease to have effect”.

The judgment concludes as follows:

Conclusion

… we conclude that the Secretary of State was correct in November 2016 and July 2019 to say that primary legislation would be required to allow local authority “meetings” under the 1972 Act to take place remotely. In our view, 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.

We recognise that there are powerful arguments in favour of permitting remote meetings. But, as the consultation documents show, there are also arguments against doing so. The decision whether to permit some or all local authority meetings to be conducted remotely, and if so, how and subject to what safeguards, involves difficult policy choices on which there is likely to be a range of competing views. These choices have been made legislatively for Scotland by the Scottish Parliament and for Wales by the Senedd. In England, they are for Parliament, not the courts.

Subject to what follows, the claim will be dismissed.

Postscript

After the judgment was circulated in draft, it was pointed out that we have not determined 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. There was brief reference to the meaning of these phrases in submissions, but we were not asked to determine the question now raised. However, we have decided to permit the parties to address us separately on it in the light of our conclusions on the meaning of “meeting”, “place”, “present” and “attend” in the 1972 Act.

Accordingly, we shall give directions for the parties to make submissions on this point before making a final order in this case.

2. Following on from an earlier article for LocalGovernmentLawyer entitled “Remote licensing hearings are lawful”, on 29 April 2021 – one day after delivery of the High Court judgment in the above case – Philip Kolvin QC wrote a further article for the same publication entitled “Can remote licensing hearings continue?” in which he set out his grounds for believing that remote hearings before licensing sub-committees under the Licensing Act 2003 and subordinate regulations are unaffected by that judgment (which was decided in the context of different legislation, i.e. the Local Government Act 1972) and can therefore continue.

Nevertheless, it should be noted that he concluded this latest article with the following words:

This is not to say that Licensing Sub-Committees are compelled to hold remote hearings. It up to them. When deciding whether to do so in some or all cases, they may bear in mind the costs savings to applicants of physical attendance by themselves and their professional representatives, the convenience for local residents, and even councillors, of being able to key in from home or work, and the ability to focus minds by imposing strict time limits on submissions.

They might equally take the view that online attendance disadvantages those without good internet facilities, or unfamiliarity with communication platforms, and that presence facilitates a less formal and more fluid debate. It is all a matter for them. In my experience, however, there is much to be said for virtual meetings and it would be a shame if anyone thought that they were legally precluded.

3. On 29 April 2021, Luke Hall MP, the Minister of State for Regional Growth and Local Government, sent a letter to Council Leaders in England (that you can download below) explaining the above-mentioned judgment of the High Court, in which he stated:

While the court’s judgment was limited to the interpretation of provisions relating to meetings within the scope of the Local Government Act 1972 – and therefore I would encourage all authorities to study the court’s judgment for themselves to understand how it applies to their circumstances – after 6 May this means that councils will need to return to face-to-face meetings and you should continue to prepare accordingly.

4. On 4 May 2021 – pursuant to the invitation extended to the parties in the above-mentioned case 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 High Court made its final order, bearing Neutral Citation Number: [2021] EWHC 1145 (Admin), stating:

6. 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.

7. 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.

8. The terms of s. 1(5) of the Public Bodies (Admission to Meetings) Act 1960 provide 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.

9 None of this, of course, prevents 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”. We say nothing about the numbers of the members of the public who should admitted in person, which will no doubt be subject to current public health or Government guidance. But 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.

10. As we made clear in our main judgment (see esp. at [75]), the conclusions we have reached depend 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.

5. On 25 May 2021, Lawyers in Local Government (LLG) and the Association of Democratic Services Officers (ADSO) – in association with Bevan Brittan LLP – published “Guidance on Remote Meetings: What next for Local Authorities?” (that you can download below). This was described as being “general in nature and must not be regarded as legal advice. Readers should take their own legal advice on the issues arising and any options being considered, taking into account risk and local circumstances”. Nevertheless, it is interesting to note its following comments in relation to ‘the Licensing Regime:

The Licensing Regime has been the focus of separate attention on the basis that hearings are conducted under the Licensing Act 2003 and regulations made thereunder. Commentators in this area have advocated that licensing sub-committees are not precluded from holding remote/virtual hearings as they are unaffected by the requirements relating to the LGA 1972. One of the bases for that argument is that section 101(15) of the LGA 1972 states that nothing within that section applies in relation to any function of a licensing authority under the Licensing Act 2003, and that this therefore means that the LGA 1972 is not relevant.

As with other such matters, there are opposing views. One such view is that section 101 of the LGA 1972 focuses on the delegation of functions only, whereas section 99 of the LGA 1972 deals with meetings and proceedings of local authorities, and states that Schedule 12 of the LGA 1972 has effect in that respect. The provision at section 101(15) of the LGA 1972 is expressly stated to only have effect in relation to that section, so it follows that section 99 and Schedule 12 of the LGA 1972 still apply.

The matter remains untested, and we would advocate a risk-based approach, determined by individual local authorities in light of their own circumstances.

6. Local Government Lawyer has reported in an article entitled “LLG calls for ability of local authorities to hold virtual meetings to be made permanent” that, in its 17 June 2021 submission to the Government’s Call for Evidence (that you can download below), Lawyers in Local Government (“LLG”) has said:

  • The remote meetings arrangements that were put in place in the early stages of the pandemic (and which expired on 7 May 2021) had worked very well. Local authorities adapted “incredibly quickly” to the need to hold virtual meetings. “Due to the steps taken within the sector, the experience of LLG members as reported to us is that the virtual meeting provision was well managed and effectively implemented by local authorities.”
  • The remote meetings arrangements delivered a wide range of benefits including: more accessibility for local authority members; reduction in travel time for councillors; easier access for residents, greater transparency; greater equality in speaking time; increased democratic participation; cost savings (one county council reported in year savings in excess of £61,000); increased variance in councillor demographics.
  • The advantages of having the option to hold remote meetings “far outweighs” any identified disadvantages. Many disadvantages identified early on, such as lack of familiarity with technological platforms, had now been overcome. There was no evidence that democratic decision making had suffered as a result of virtual meetings.
  • It seemed “unlikely that swathes of elected members would live and perform their duties outside of their local area on a permanent basis not least because we do not anticipate local authorities to hold virtual meetings on every occasion, quite the opposite in fact”.
  • If councils were given the ability to determine when and how their meetings are conducted virtually and when they are to be held in person, this would alleviate the majority of disadvantages.
  • Local authorities in England should have the option to hold remote meetings for all meetings, and in any circumstances. “It should be a matter of complete choice for local authorities to determine which meetings will be held virtually without being bound in such a way as to remove the flexibility to switch between in-person and remote meetings for any or all meeting types. Local authorities are best placed to determine what best suits both its own situation together with local needs in how it conducts its meetings.”
  • If anything, the flexibility to hold remote meetings would provide greater access for individuals with protected characteristics given that the need to attend in person would be reduced. “Remote meetings would provide flexibility to balance caring responsibilities. Technology provides solution-based access options and tools for individuals with disabilities who might struggle to physically attend a council building. Local Authorities are bound by both the Equalities Act and the Public Sector Equality Duty and are well placed to safeguard the interests of individuals falling into those categories.”

LLG added: “National democracy is inherently different from local authority. The House of Commons is not a committee room where members of the public in their personal capacity are routinely and frequently called to attend and make representations. There are varied procedural differences across a wide spectrum of areas falling within that which is classified as a local authority meeting. As such, it is not constructive to compare the two as against the other.”

7. On 17 June 2022, almost a year on since the government’s above-mentioned Call for Evidence concluded, the Local Government Association has urged the Government to “act quickly and take the next steps to introduce legislation that would empower local authorities to make the most suitable choice for their organisation.” You can read more in our subsequent website posting entitled ‘LGA calls for flexibility to allow local authorities to offer virtual meeting options‘.