Lawyers and democratic services officers to obtain legal advice on continuing with virtual meetings after 6 May without need for primary legislation

LLG (Lawyers in Local Government) and ADSO (the Association of Democratic Services Officers) have instructed counsel to advise on whether remote meetings can continue to be held, without the need for primary legislation, when the regulations introduced during the Covid-19 pandemic come to an end.

The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority Police and Crime Panel Meetings) (England and Wales) 2020 regulations has a sunset date of 6 May 2021.

On the LLG blog, Head of Public Affairs Helen McGrath wrote that the two organisations, together with numerous stakeholders, wanted to see continuing provision for local authorities to conduct meetings virtually.

She said: “We do not want a situation where meetings from the 7th May 2021 onwards to have to take place in person. We consider and indeed, the government has indicated, that we will not have returned to a pre-pandemic stage and are likely to remain under tiers for some time yet.

“But quite aside from the Covid-compliant difficulties in returning to in person meetings, a real focus here should be on the effective local democratic process, decision making and engagement advantages from the ability to hold virtual meetings.”

McGrath said that statistics bore out that public participation in meetings had increased “remarkably”.

She added: “There is also the long-term effect to consider; the real probability that the flexibilities afforded will attract a more diverse range of public demographic to stand as councillors. Any provision which enables equality of access, increased democratic participation and effective decision making must be retained.”

The Local Government Association is reported to have received a letter before Christmas from the Minister for Regional Growth and Local Government, Luke Hall, stating:

“To extend the facility for councils to continue to meet remotely, or in hybrid form, would require primary legislation. There is no option to extend the current regulations under the Coronavirus Act 2020 as section 78 (3) contains the sunset date of 7 May 2021. There is considerable pressure on the Government’s legislative programme. However, I appreciate the arguments you have put forward and I will consider the case for this with colleagues in the Government.”

More recently, the Secretary of State for Housing, Communities and Local Government, Robert Jenrick reiterated that extending the date the regulations end would require primary legislation and there was no vehicle to do that in time.

LLG’s McGrath said the Secretary of State had said that whilst it was not possible at the moment, if there was an opportunity to make it more permanent, he would take it.

LLG and ADSO have now instructed counsel to examine the issue of whether primary legislation was required.

“We know of at least one local authority which has already received counsel's opinion, and which identifies two regulations which would give the Secretary of State powers to implement virtual meeting provisions,” McGrath said.

These provisions are s16 Local Government Act 1999 and s15 Cities and Local Government Devolution Act 2016. “The advice also included a view that the Executive or Cabinet will still be able to meet remotely (if permitted under their constitution) as Schedule 12 of the Local Government Act 1972 does not apply to the executive and there is no law which requires presence or place.”

Both LLG and ADSO have urged their members to bring the issue to the attention of councillors and ask them to consider lobbying the Secretary of State. McGrath wrote: “The more noise we can make to bring collective pressure the better.”

In a statement on its website ADSO said key arguments for the continuation of remote meetings were:

• Time is running out – there are only five months left before the deadline of 7th May
• Remote meetings support councillors in balancing their meetings, especially in large counties/rural council areas
• They encourage more diverse councillor membership – those with children/caring responsibilities, who are working to stand as councillors
• There is a positive environmental impact of not travelling to meetings by car etc
• Public participation and member attendance at meetings have generally increased
• Provision could be extremely helpful in situations where, for example, a short meeting is convened which brings 20 people in from across the whole authority’s area
• There would remain flexibility to hold in person meetings where appropriate or indeed hybrid/blended meetings if required.

The LGCplus website has meanwhile reported that council leaders from across Essex had written to Mr Jenrick urging him to extend provisions to hold virtual meetings after obtaining legal advice that it would be in his power to do so.

UPDATE: Commenting on the decision to seek a legal opinion, John Austin of ADSO said: “In addition to the very powerful public health argument, there are so many business reasons for allowing remote meetings to continue . Councils have spent considerable resources to make them a success for all involved in the democratic process, including the public. Let's not waste the significant progress that has been made."

Deborah Evans, CEO of LLG, added: “It doesn’t seem sensible to us to have to go back to a world of decision making where remote meetings aren’t allowed.”