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High Court to resolve next month issue of ability of councils to hold meetings remotely after 6 May deadline

LLG (Lawyers in Local Government) and ADSO (the Association of Democratic Services Officers) have – along with Hertfordshire County Council – been given permission to expedite their claim for a declaration in the High Court which will provide certainty for local authorities on whether they can continue to hold meetings remotely past the 6 May 2021 deadline.

This is when the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority Police and Crime Panel Meetings) (England and Wales) Regulations (No.392) are due to expire.

On 23 March 2021, a hearing was held at which the court issued directions for the matter to proceed within a timeline which will ensure the case will be decided before the end of April.

In a joint statement ADSO chair John Austin and LLG President Quentin Baker said: “LLG and ADSO have built a strong case and remain optimistic that the outcome of the proceedings will result in a favourable outcome for local authorities to have local choice and flexibility, as to when they want to use remote meetings.

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“We are however, encouraging authorities to make contingency arrangements to ensure they are well placed to continue decision making from 7th May onwards in the event the outcome does not support our objectives.”

The two organisations obtained counsel’s opinion from James Strachan QC of 39 Essex Chambers in relation to the expiry of the regulations and the ability to continue to hold council meetings remotely past 6 May 2021.

In February they summarised Mr Strachan’s advice as follows:

(1) There are forceful arguments that can be made that the pre-existing legislation governing local authority meetings under Schedule 12 of the Local Government 1972 Act, and meetings of an executive or a committee of an executive under the Local Authorities (Executive Arrangements (Meetings and Access to Information) (England) Regulations 2012, enable local authorities to hold meetings remotely.

(2) For the present situation to continue after 7 May 2021 with the use of remote meetings, the optimum position would be for further legislation to be passed to make the position clear.

(3) In the absence of such legislation, one resolution would be to obtain a declaration from the courts to obtain clarity as to the legal position under the pre-existing legislation.

(4) The Secretary of State does have (a) power under section 16 of the 1999 Act to make an Order to modify or disapply those restrictions for best value authorities and (b) power under the 2000 Act to make regulations governing executive decision-making bodies to hold remote meetings.

LLG and ADSO have consistently called for the ability of English councils to hold remote meetings to be made permanent, with the benefits including reduced travel to meetings, cost savings, increased participation in the democratic process and equality of access to meetings.

Before the two organisations obtained counsel's opinion, the Secretary of State for Housing, Communities and Local Government, Robert Jenrick, said that whilst accepting that the provision had been successful, he had no plans to extend the date as it required primary legislation and there was no vehicle to do that in time for May.

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