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Update: The High Court ruled on 28 April 2021 that virtual council meetings could not lawfully take place after 6 May 2021. This means that primary legislation would be required to restore the powers to hold virtual meetings in the future. In the meantime, reports have emerged of councils exploring ‘workarounds’ such as taking shadow decisions in remote meetings, which are then confirmed by senior officials or councillors.
Local authorities, including parish and town councils, have been holding their meetings online during the pandemic. However, the regulations allowing them to do so expire on 6 May 2021.
Many authorities wish to continue virtual meetings while social distancing measures remain in place.
This Insight explains the importance of this issue to local authorities, and describes the efforts underway to address it.
Holding online meetings
Local authorities were permitted to hold virtual meetings from 4 April 2020, when regulations came into force. These are the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 (SI 2020/392), made under section 78 of the Coronavirus Act 2020.
These regulations apply to all local authorities in England and Wales, including parish, town, and community councils. They specify that a ‘meeting’ of a local authority can lawfully take place online, with members ‘in remote attendance’ who can hear and be heard by, and if possible see and be seen by, other members.
As section 78 of the Coronavirus Act 2020 only permits regulations to apply to council meetings that take place before 7 May 2021, primary legislation would be needed to extend this.
Calls for extension ahead of elections
The Government has faced demands from the local government sector to legislate to permit councils to meet virtually after that date. If a virtual meeting took place after that date but its legal status was uncertain, any decisions that it took could potentially be open to legal challenge.
Responses to a number of Parliamentary Questions in early 2021 stated that the Government was “carefully considering next steps” on this matter.
The Local Government Chronicle reported in March 2021 that councils have been concerned that holding meetings in person after 7 May would require them to obtain larger venues, in order to maintain social distancing, generating extra costs or obliging them to limit attendance by councillors. This could be a particular challenge in the parish and town council sector, where meetings take place in small venues in smaller localities. Claims have also been made that public attendance has been higher at virtual meetings, enhancing the democratic process.
On 25 March 2021, the Government wrote to all local authorities saying it was “not possible to bring forward emergency legislation on this issue at this time”. To address difficulties caused where local authorities are unable to hold meetings, the Government’s letter suggests delegating powers to the head of paid service (the chief executive), and directed councils to an update of its guidance for the safe use of council buildings.
The letter also states that the coronavirus ‘roadmap’ permits indoor meetings from 17 May, and suggests that annual meetings could therefore be held after this date. This is of particular pertinence to local authorities holding elections on 7 May, as they must hold an annual meeting within 21 days of the election.
On 25 March, the Government launched a call for evidence on the experiences of remote council meetings. This consultation is due to end in mid-June.
High Court claim
A claim seeking a declaratory judgment from the High Court was lodged on 17 March by ADSO (Association of Democratic Services Officers), LLG (Lawyers in Local Government) and Hertfordshire County Council. The claimants are seeking a declaration from the court that uses of the word ‘meeting’ in local government legislation can be read as referring to virtual meetings as well as in-person meetings.
The critical legislation is schedule 12 of the Local Government Act 1972, which contains the core legal provisions concerning local authority meetings. The Local Government Chronicle reported on 25 March that the court was expected to reach a decision before 6 May.
There is nothing in Schedule 12 that explicitly states that a ‘meeting’ must take place in person. The regulations made under the Coronavirus Act 2020 merely state that a ‘meeting’ may also be virtual. If the court declares in favour of the claimants, it will be possible for council meetings to be held remotely in the future.
The Municipal Journal reported rumours on 1 April that some councils might consider continuing to hold online meetings past 6 May. It said that “senior Ministry of Housing, Communities and Local Government officials – after being warned about a potential rebellion – have privately suggested they will not pursue any council that continued with remote meetings after the 6 May deadline”. On 7 April the Local Government Chronicle reported that Robert Jenrick, the Secretary of State for Housing, Communities and Local Government, had announced that the Government supported the claim being brought.
See an extended discussion of this issue, published by the Centre for Governance and Scrutiny in April 2021.
About the author: Mark Sandford is a researcher at the House of Commons Library, specialising in local government and devolution in England.
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