Dismay among councils as Government confirms there will be no extension to emergency legislation regarding virtual council meetings

Emergency legislation regarding virtual council meetings in England will not be extended, the Ministry of Housing, Communities and Local Government (MHCLG) has confirmed.

The decision in relation to 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 are set to expire on 7 May 2021, has been described as “extremely disappointing” by the Local Government Association.

The LGA said it would provide support in the legal proceedings being brought by Lawyers in Local Government, the Association of Democratic Services Officers and Hertfordshire County Council, who are seeking declarations from the High Court that pre-existing legislation allows councils to continue to hold virtual meetings. LLG and ADSO have said today (26 March) that they remain "fully committed" to presenting their case at the hearing next month.

After confirming its decision to let the emergency legislation expire, the Government has published updated guidance on the safe use of offices. The Ministry has also issued a call for evidence which “seeks to understand the experience of local authorities in the whole of the UK regarding remote meetings”. It will run until 17 June 2021.

In a letter to principal councils in England explaining the decision, Local Government Minister Luke Hall said: “Extending the regulations to meetings beyond May 7 would require primary legislation. The Government has considered the case for legislation very carefully, including the significant impact it would have on the Government’s legislative programme which is already under severe pressure in these unprecedented times.

“We are also mindful of the excellent progress that has been made on our vaccination programme and the announcement of the Government’s roadmap for lifting Covid-19 restrictions. Given this context, the Government has concluded that it is not possible to bring forward emergency legislation on this issue at this time.”

He continued: “While local authorities have been able to hold meetings in person at any time during the pandemic with appropriate measures in place, the successful rollout of the vaccine and the reduction in cases of Covid-19 should result in a significant reduction in risk for local authority members meeting in person from May 7, as reflected in the Government’s plan to ease Covid-19 restrictions over the coming months.”

The Minister said he recognised there might be concerns about holding face-to-face meetings. “Ultimately it is for local authorities to apply the Covid-19 guidance to ensure meetings take place safely, but we have updated our guidance on the safe use of council buildings to highlight ways in which you can, if necessary, minimise the risk of face-to-face meetings, and we will work with sector representative bodies to ensure that local authorities understand the guidance and are aware of the full range of options available to them.”

In the letter he suggested that these options might include:

• Using existing powers to delegate decision making to key individuals such as the Head of Paid Service, “as these could be used these to minimise the number of meetings you need to hold if deemed necessary”.
• Some councils will be able to rely on single member decision making without the need for cabinet meetings if their constitution allows.
• While the Minister appreciated that a greater number of authorities would be subject to elections this year due to the postponement of the 2020 elections, those councils who are not subject to elections could also consider conducting their annual meetings prior to 7 May, and therefore do so remotely while the express provision in current regulations apply.
• The Government’s roadmap proposes that organised indoor meetings (e.g. performances, conferences) are permitted from 17 May, subject to Covid secure guidelines and capacity rules. “On this basis, councils should consider the extent to which their annual meetings (and any other meetings) can operate on the same basis as other local institutions in their area, taking into account their individual circumstances and requirements.”

Hall said that if councils are concerned about holding physical meetings they may want to consider resuming these after 17 May, “at which point it is anticipated that a much greater range of indoor activity can resume in line with the Roadmap, such as allowing up to 1,000 people to attend performances or sporting events in indoor venues, or up to half-capacity (whichever is lower)”.

He added: “Finally, while you do have a legal obligation to ensure that the members of the public can access most of your meetings, I would encourage you to continue to provide remote access to minimise the need for the public to attend meetings physically until at least 21 June, at which point it is anticipated that all restrictions on indoor gatherings will have been lifted in line with the Roadmap. However, it is for individual local authorities to satisfy themselves that they have met the requirements for public access.”

On the call for evidence, the Minister said this would “establish a clearer evidence base of opinion and enable all the areas to be considered before further decisions are made”.

Responding to the announcement, 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.”

Cllr Jamieson said 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.”

LLG, ADSO and Hertfordshire are seeking declarations from the High Court that 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.

The High Court has issued directions which will mean the issue is resolved before the end of April.

In a statement on the Government’s announcement, ADSO chair John Austin and LLG President Quentin Baker said: “The letter to Council Leaders from Luke Hall MP received yesterday (25 March) does not change the need for our court hearing, in fact if anything, it makes the need for it more pressing.

“Councils are already actively considering the options the minister has suggested, including looking at alternative larger meeting venues at significant extra cost. The proposal to delegate significant decisions to officers is likely to be viewed as undermining democratic accountability due to the fact that such decisions are not subject to direct member involvement. Given the circumstances authorities find themselves in due to the imminent loss of virtual meeting provision, they now face unpalatable decisions, which include restricting member attendance and a reduction in members roles in decision making, whilst attempting to keep the machinery of local government moving.

“We remain fully committed to presenting our case at the High Court Hearing timetabled to be heard before the end of April 2021.”