Radhika Devesher considers the fallout from the High Court's decision that online council meetings cannot continue past 7th May and outlines the practical steps that councils can take to ensure that the decision-making process is not adversely affected.
You may have heard the recent decision that the High Court has refused to declare that councils may continue to hold meetings remotely on or after 7th May. Although the legislative reasoning is clear, many council officers and members will be considering whether the right decision has been made on a practical level.
As a reminder, here’s what has happened so far:
The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 (“Regulations”) were brought in on 4th April 2020 under powers granted by section 78 of the Coronavirus Act 2020 to allow local authorities to deal with the challenges of holding physical meetings during the coronavirus pandemic. The Regulations were stated to apply until 7th May 2021. The Regulations allowed for local authorities to hold meetings remotely, for example through digital conference software (e.g. Zoom) or telephone conference calls.
However, they did not mandate such meetings to be held remotely or in a particular format.
Confirmation was provided by the Government to council leaders that the emergency legislation concerning remote meetings would only be in place until 6th May 2021.
Subsequently, Hertfordshire County Council, the Association of Democratic Service Officers and Lawyers in Local Government brought an action asking the High Court to decide whether Schedule 12, Local Government Act 1972 should be interpreted as allowing for virtual meetings, as the legislation was passed at a time when virtual meetings could not have been envisaged.
High Court Decisions
The High Court on 23rd April 2021 held that meetings cannot be held remotely under the Local Government Act 1972 and extending the Regulations would require further emergency legislation.
The case was heard before Dame Victoria Sharp, president of the Queen’s Bench Division, and Mr Justice Chamberlain. The judgment highlighted the importance of being clear on attendance requirements at council meetings to ensure council decisions are validly taken, i.e. whether a meeting was quorate, or whether the majority vote had been achieved. Overlooking such detail may lead to acrimonious disputes, which is why certainty is required as to what constitutes as “present”.
The Court then went on to state that local authority meetings must take place at a single, specified geographical location and that attending a meeting means ‘physical presence at that location’.
Ultimately, the High Court has passed the baton over to the Government to make the decision on whether long-term change is required. In the immediate term, the Government has concluded that it is not possible to secure primary legislation to extend the Regulations beyond the stated date.
If and when such legislation is put in place, key considerations will include (a) circumstances in which remote meetings will be permitted, and (b) what requirements will be in place to ensure that council decisions are validly taken. In an area which will attract many competing views, will such legislation prescribe in detail how meetings should be conducted, or will councils have autonomy to make such decisions?
Subsequently on 4th May 2021, the High Court clarified the outstanding question of whether a meeting is either “open to the public” or “held in public” if the only form of access to the public is via a remote connection. It was held that given the importance given to “physical attendance” following the initial judgement for this matter, “open to public” or “held in public” means that councils will be required to allow people to attend in person at the meeting venue. However, it was noted that this does not prevent councils from broadcasting a meeting via webcam, and councils would still need to take into account Government guidance on Covid-19 safety measures, which could mean restricting the number of attendees.
Remote meetings during the pandemic have in some ways increased the accessibility of council meetings for members of public, improving transparency and accountability of local authority decisions. At the same time, council members have benefitted in cost savings, as well as convenience, from being able to dial in to meetings from home. In the midst of a pandemic, the availability of remote meetings has also helped ensure that essential council business continued whilst also prioritising the health and safety of attendees.
On the other hand, poor internet connections, unfamiliarity with technology, and unfortunate mishaps (or deliberate misuse) in relation to video conferencing etiquette, might persuade many that face to face meetings make for more efficient proceedings.
Regardless of the differing preferences on remote meetings, it is important to note that the luxury (or burden) of remote meetings has come to an abrupt halt (albeit that the Regulations have always been clear on when the application of remote meetings would end).
On 25th March 2021, the Government issued a call for evidence on current arrangements for remote meetings, which requests views and seeks to understand the experience of local authorities on the use of remote or hybrid meetings during the coronavirus pandemic.
Councils have now had the experience of online meetings, albeit a crash course into making it work last year. This consultation allows an informed judgement to be made as to whether the Government should legislate and make remote meetings a permanent fixture, following the lead of the Welsh Government.
Until then, councils elsewhere will need to prepare for the return to face to face meetings, whilst also remaining compliant with Covid-19 guidance to ensure meetings are conducted safely.
 Hertfordshire County Council and others v Secretary of State for Housing, Communities and Local Government  EWHC 1093 (Admin) (28 April 2021)
 Hertfordshire County Council and others v Secretary of State for Housing, Communities and Local Government  EWHC 1145 (Admin) (4 May 2021)
Radhika Devesher is a Senior Associate at Sharpe Pritchard LLP
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