The imminent High Court hearing over the ability of councils in England to continue to hold remote meetings after 6 May is about ensuring local choice, the leaders of the two organisations behind the legal proceedings tell Local Government Lawyer.
Next week (21 April) Lawyers in Local Government and the Association of Democratic Services Officers will – alongside Hertfordshire County Council – seek declarations from the High Court that the Local Government Act 1972 allows councils to hold meetings remotely.
At the centre of the hearing will be consideration as to whether the crucial words ‘meeting’, ‘present’ and ‘place’ in the 1972 Act can be interpreted so as to include ‘virtual’, not least as the internet and therefore the ability to hold remote and hybrid meetings did not exist when the legislation was drawn up.
LLG, ADSO and Hertfordshire received a significant boost last week when the Secretary of State for Housing, Communities and Local Government, Robert Jenrick, revealed that the Government would support their claim over the interpretation of the 1972 Act.
Only last month the Government had confirmed that the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 – brought in shortly after the beginning of the first lockdown – would expire on 7 May 2021.
Since the beginning of the year ministers have said extending these regulations would require primary legislation and there was insufficient Parliamentary time to pursue this. In a letter to principal councils last month Local Government Minister Luke Hall published updated guidance on the safe use of offices and issued a call for evidence seeking “to understand the experience of local authorities in the whole of the UK regarding remote meetings”.
Ahead of next week’s hearing (and before the Secretary of State’s public backing of the proceedings) Local Government Lawyer spoke to Quentin Baker, President of LLG, and John Austin, chair of ADSO, about the reasons for the legal action.
“There are a number of reasons why we think that the option to attend remote meetings is a good idea,” Baker says. “The first thing to stress is that this isn't about insisting that councillors attend meetings remotely. It is about having the option to attend meetings remotely in addition to in person. We fully expect and support councillors having meetings physically and in the same space, because that is a traditional way that meetings are held and it is a great way for councillors to network and be in touch with each other.”
The case is not a campaign to make meetings remote, he insists, but rather “a campaign to create an option for people to use as and when necessary for them and the requirements of their own life and circumstances”.
Among those who might benefit, he argues, are people with caring responsibilities, who might now be able to become councillors but who would not have been able to do so before, and people with travel issues.
Allowing remote participation therefore helps with accessibility and engagement, Baker says, and would also for example lead to spin-off benefits such as a reduction in carbon footprint.
ADSO’s Austin believes that councils - both councillors and officers - have done “amazingly well” to get remote meetings up and running so successfully, and that this had led to increased access for the public. It has also enabled some current councillors to attend more meetings than they might otherwise have been able to.
It was at the turn of the year, when the first ministerial comments were made about the probable lack of Parliamentary time to introduce primary legislation, that ADSO and LLG started to consider how to do something more positive about securing continuation of the ability to hold remote meetings.
“That was the trigger,” says Austin. “We have always argued that the best option would be for the government to change the law. But when it became clear that that wasn't likely, we decided that we would have to be proactive and look at other ways. It was always about supporting the minister and trying to present options. We were in no way trying to take them on.”
Agreeing, LLG’s Baker adds: “In a sense, this is a way of trying to find an alternative way of achieving of what seems to be a very popular outcome, but not having to be bound to pass the primary legislation to do so.”
Baker (pictured right) says that one imminent, practical issue that will arise if the ability to hold remote meetings is lost stems from the fact that in May the vast majority of councils will be holding full Council meetings (and that these will be the annual general meetings).
“That will be the first time after the elections, after the 6th of May deadline, when a large council meeting will have to be held physically in one location,” he says.
Full council meetings are likely to be the most problematic because of the need to comply with social distancing requirements.
According to Austin, councils are now faced with the option of having to look for larger premises at significant cost, “even if they are available, because not all areas have large sports halls or large conference venues”. Those that do have suitable venues are finding that some are already being used as vaccination centres or are earmarked for the elections.
Another option is for councils to restrict the number of councillors attending the meetings.
“This isn't what anybody wants because you are denying councillors the right to attend meetings - there's a democratic deficit there,” says Austin. A number of councils are reportedly thinking of bringing their AGMs forward but that cannot be done if they are having elections. “So councils are already looking at what we call Plan B in the event of having to go back to physical meetings on the 7th of May.”
There is also concern at the suggestion contained in the letter from Luke Hall that councils contemplate using existing powers to delegate decision making to key individuals such as the Head of Paid Service.
Many officers and not just elected members would be uncomfortable with that, says Baker. “The officers would feel that it's more appropriate for elected members to be taking very significant decisions rather than it falling to them.”
One aspect Baker and Austin emphasise is that their legal bid has received the backing of the Local Government Association and NALC (the National Association of Local Councils), both of whom will be making representations at the hearing.
“They are representative of all tiers of local government,” says Austin, “so this isn't just ADSO and LLG and Hertfordshire, it is the representative bodies of local councils coming out and supporting us. It is also across the political divide as well. It is not a political issue in that sense.”
Jackie Weaver, the clerk who became famous when a Handforth Parish Council sub-committee meeting went viral, has also suggested that it would be “dreadful” if virtual meetings were brought to an end.
ADSO’s Austin (pictured left) notes how that affair highlighted the benefits of remote meetings in terms of accountability. “If that [Handforth PC] meeting had taken place pre lockdown and pre recordings, probably no one would have known about it except for a few people in the area. With it being recorded, there is an increased accountability on members because they can now be seen anywhere, worldwide.”
He adds: “So it [the ability to hold meetings remotely] brings that openness, it brings that transparency, it brings that accountability to the process – not only in the way councillors behave but in the way councils conduct their meetings and make them accessible to the public. It has opened it all up and made it a lot more visible.”
The optimal solution going forward, both Baker and Austin believe, is for there to be the choice to attend in whichever way is the most appropriate.
“We would emphasise that it is down to local choice, it is down to councils to decide when it is appropriate to hold remote or hybrid meetings [in relation to] their own circumstances,” says Austin.
Concerns have been aired that elected members with second homes for instance may spend lots of time in their second home out of their ward or their division and accordingly be ‘remote’ councillors.
That is certainly a concern, says Baker. However, he adds: “Let's face it, councillors can live in the constituency and be completely disengaged. Appropriate guidance could be issued and in a local area you could perhaps build something into your standing orders that required a percentage of attendance in person. I could imagine all sorts of inventive ways of dealing with it if it became a problem, which I think it probably wouldn't.”
ADSO’s Austin acknowledges that there are risks with remote meetings, but suggests these were identified right at the beginning when the 2020 regulations came in. These include issues around the integrity of the vote, declarations of interest, whether members were leaving meetings and so on. There was also the issue of protection of exempt information – were councillors for example discussing exempt information in front of their family and friends in the front room?
Austin maintains that councils “very quickly brought in procedures to ensure that these remote meetings complied to the rules of ordinary meetings”.
While many councils may initially have had to increase the number of staff who supported each meeting, so as the technology has got better and as councils got more used to the process, fewer staff were needed, he adds. Councils have also adopted procedures where for example they monitor members’ internet connections throughout the meetings and they know if the member has lost theirs.
“Councils have put a lot of time and effort into ensuring that these meetings not only work well but they comply with the governance rules,” says Austin.
Perhaps most importantly of all councils “have also had some very positive feedback” from the public.