Meetings held by local authorities in England under the Local Government Act 1972 must take place in person from 7 May when emergency regulations introduced in the early stages of the first lockdown expire, the Divisional Court has ruled.
Lawyers in Local Government (LLG), the Association of Democratic Services Officers (ADSO) and Hertfordshire County Council had asked the court to decide whether, on the expiry of regulations made under the Coronavirus Act 2020 providing for local authority meetings held before 7 May 2021 to take place remotely, it would be lawful for such meetings to continue to be held remotely under pre-existing legislation.
The regulations due to expire - 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: “the Flexibility Regulations”) - came into force on 4 April 2020.
The claimants were backed by the Local Government Association and the National Association of Local Councils in their application for court declarations. They had also received support from the Local Government Secretary, Robert Jenrick.
However in Hertfordshire County Council & Ors v Secretary of State for Housing, Communities And Local Government  EWHC 1093 the President of the Queen’s Bench Division, Dame Victoria Sharp, and Mr Justice Chamberlain ruled that meetings under the 1972 Act must take place with the participants gathering face-to-face at a designated physical location.
All parties represented had invited the Court to declare that: a “meeting” could take place “remotely” – i.e. without all or any of the participants being in the same physical space; that the “place” where such a meeting was held could include reference to more than one place and could include electronic, digital or virtual locations such as internet locations, web addresses, video-conferencing platforms or conference call telephone numbers; and that a person could be “present” at or “attend” such a meeting by electronic means.
However, the Divisional Court noted that legislation of the Scottish Parliament, the National Assembly for Wales and the Senedd provided expressly for remote meetings.
As to England, the Government had issued a consultation document in November 2016 proposing the limited use of remote meetings for one type of authority – joint and combined authorities – subject to safeguards. In a response to consultation in July 2019, the Government emphasised the limits of this proposal and expressed itself satisfied as to the adequacy of the safeguards.
The Government has meanwhile recently launched a call for evidence about further reform in this area. The closing date for responses is in June 2021.
The President of the QBD and Mr Justice Chamberlain observed that a comparison of the Scottish and Welsh legislation, the Government’s 2016 consultation and the 2020 Act and Flexibility Regulations showed that permitting remote meetings could be done in many different ways. It involved legislative choices, they said.
The Divisional Court decided that the proper meaning of the word “meeting” had to be ascertained in the context of the 1972 Act, read as a whole, including the requirement that a meeting be held “at such place, either within or without their area” as a principal council, parish council or community council may direct. This was most naturally interpreted as a reference to a particular geographical location and would not naturally encompass an online location.
The judge said it was also relevant that the meetings provided for by the 1972 Act were an important part of the mechanism of government of the country.
“The decisions taken at these meetings may have significant legal consequences for third parties. It will often be necessary to decide whether a meeting is quorate or whether a majority of those present has voted in favour of a particular resolution. Questions of this kind can give rise to acrimonious disputes,” they said.
“This makes it important to have certainty about what constitutes attendance or presence at a meeting. Without such certainty, it may be unclear whether a particular decision has been validly taken or not. The differences between the conditions for remote attendance in the 2011 Welsh Measure, reg. 5(3) of the 2020 Regulations and the 2021 Welsh Act provide a vivid illustration of the different ways of deciding what counts as remote attendance. These pieces of subsequent legislation were not, of course, available to Parliament in 1972, but the importance of certainty on these matters would have been obvious even then."
The Vice President of the QBD and Mr Justice Chamberlain said it was legitimate to construe the 1972 Act in a way which promoted certainty in its application. "A construction according to which meetings have to take place in person at a physical location better promotes certainty than one in which remote meetings are permissible in some but not other situations and the dividing line is not spelled out.”
The Divisional Court also said it was legitimate to consider whether the 2020 Act signalled Parliament’s view as to the correct construction of the 2020 Act. In the Court’s view, it did. Section 78(2) of the 2020 Act would have been unnecessary if the interpretation favoured by the parties were correct. Parliament had legislated on the basis that the 1972 Act did not permit remote meetings.
The Vice President of the QBD and Mr Justice Chamberlain added that “where there are two possible constructions, it is legitimate to favour the one which accords better with what has been until very recently the consensus view”.
That was particularly so in circumstances where the effect of the other construction would traverse the same ground covered by express legislative provision in Scotland and Wales and would undermine the express basis of a recent consultation on proposed legislative changes in England and the implied basis of a call for evidence currently underway.
The judges concluded that the Secretary of State was correct in November 2016 and July 2019 to say that primary legislation would be required to allow local authority “meetings” under the 1972 Act to take place remotely. “In our view, once the Flexibility Regulations cease to apply, such meetings must take place at a single, specified geographical location; attending a meeting at such a location means physically going to it; and being 'present' at such a meeting involves physical presence at that location.”
They added: “We recognise that there are powerful arguments in favour of permitting remote meetings. But, as the consultation documents show, there are also arguments against doing so. The decision whether to permit some or all local authority meetings to be conducted remotely, and if so, how and subject to what safeguards, involves difficult policy choices on which there is likely to be a range of competing views. These choices have been made legislatively for Scotland by the Scottish Parliament and for Wales by the Senedd. In England, they are for Parliament, not the courts.”
The Court has invited the parties to make further submissions on a separate question on which it has not heard yet argument: whether a meeting which is required by the 1972 Act to take place in person is “open to the public” or “held in public” if the only means by which the public are permitted to access it are remote means.
LLG and ADSO said they were "very disappointed" at the decision of the Court to refuse to support the updated interpretation they had proposed.
The two organisations said they would now direct their energy, and the momentum that had been generated, into lobbying government to quickly bring forward the necessary legislation to overcome the impasse and to ensure that councils have local choice to determine the methodology by which meetings can take place. "Not just during the pandemic, but for the long term, in perpetuity."
John Austin, Chair of ADSO, said: "I am extremely disappointed that we haven’t achieved the positive outcome we wanted for local authorities. The situation councils now find themselves in is untenable and I call on the Secretary of State to back up his support for our claim and legislate quickly, as Governments have in Wales and Scotland. Thank you to all who have supported our claim financially and otherwise. Our work does not stop here. We move on to the next phase."
Quentin Baker, LLG President, added: "Although the court’s decision is disappointing the work done in bringing the case isn’t wasted as it has focussed minds on identifying the key elements of a good meeting and galvanised opinion across the sector in favour of remote attendance as an option. I’m confident that we have paved the way for Government to legislate and LLG will be working closely with ADSO to assist the Secretary of State to deliver that outcome."
Responding to the ruling, Cllr James Jamieson, Chairman of the Local Government Association, said: “It is very disappointing that this last avenue to allow councils to hold online and hybrid meetings whilst COVID-19 restrictions are still in force has not been successful. Councils by law, have to hold annual meetings within 21 days following local elections, so many will now have to use very large external venues to allow all members of the council to meet in person.
“Councils want to continue to have powers to hold online and hybrid meetings even when restrictions have been lifted. A recent LGA survey of its members revealed that 83% of councils said they would be very likely or fairly likely to conduct meetings both online and in a hybrid way once the coronavirus emergency was over if they had the power."
Cllr Jamieson added: “The current flexibility has been paramount in allowing access for both councillors and the public into council meetings. Many councils have, in fact, seen significantly increased participation by the public in meetings where important decisions are made about planning, housing and the provision of local services. Councils want the flexibility to continue to meet in this way and continue their business, especially in times of emergency such as when flooding occurs or if there is significant traffic disruption due to weather conditions.
“The Government gave clear evidence at the hearing in support of allowing the option of online and hybrid meetings. Unfortunately, the judgement is clear that primary legislation is needed to allow councils to use technology to hold meetings.”
This article is based predominantly on the Judiciary's press summary.