UPDATE:

The Coronavirus Bill has now passed through all stages in the in the House of Commons. While it initially did not make provision for local authorities to hold meetings virtually, amendments were published on Monday 23^rd in the evening to address this.

The amendment (clause 78 of the Bill) that has been published for the House of Lords, allows the ‘relevant national authority’ for England, Wales or Northern Ireland to enact, by secondary legislation, relating to:

• requirements to hold local authority meetings;
• the times and frequency of meetings;
• the places at which meetings are to be held;
• the manner in which persons may attend, speak at, vote in, or otherwise participate in, meetings – including in particular provisions for persons to attend, speak at, vote in, or otherwise participate in, meetings without all of the persons, or without any of the persons, being together in the same place;
• public admission and access to meetings, and
• the places at which, and manner in which, documents relating to meetings are to be open to inspection by, or otherwise available to, members of the public.

The regulations may make provision only in relation to local authority meetings that are intended to be held or required to be held before 7 May 2021. We would note that, by including this date in the primary legislation, flexibility is removed. In our view, it would be better if the cut-off date were in the secondary legislation, so that ministers could decide to continue virtual meetings in the event that it proves a success, or to change the criteria once the pandemic has passed e.g. making it more like Wales where 30% of members have to be present in the room.

 

 

Following the Prime Minister’s announcement on 16 March 2020 that we are to avoid all non-essential contact and work from home where possible, attention is now turning to how best to focus resources and how to get those essential decisions made.

LLG and ADSO have issued a joint press release to address the question of local authority decision making and the democratic process in light of the Coronavirus Pandemic. Some Councils have closed their buildings and are cancelling meetings, and the Government is looking at amending rules that prohibit members taking part in meetings remotely via telephone or video-conferencing in response to the crisis.

We would note that the Coronavirus Bill was introduced in the House of Commons on 19 March 2020 and, while it does provide for the postponement of local elections (section 57), it does not make provision for local authorities to hold meetings virtually.

The Ministry of Housing, Communities & Local Government issued a statement, which includes the following:

In addition to measures previously brought forward by the government, including the relaxation of restrictions on supermarket deliveries and the postponement of local, mayoral and Police and Crime Commissioner elections until May next year, the government has now confirmed: 

• Routine Care Quality Commission inspections will be temporarily suspended for the duration of the COVID-19 outbreak.
• Ofsted will look very favourably on any requests to defer inspections because of coronavirus.
• Councils will be able to use their discretion on deadlines for Freedom of Information requests.
• The deadline for local government financial audits will be extended to 30 September 2020.
• It will consider bringing forward legislation to remove the requirement for annual council meetings to take place in person.
• It will consider bringing forward legislation to allow council committee meetings to be held virtually for a temporary period.

In the meantime, local authorities should consider the options available to them to ensure that decisions do continue to get made, lawfully, safely, and transparently.

Certain decisions will require member approval, whether by the Cabinet, Cabinet members, Committees or the full Council. This could pose difficulties in achieving a quorum. However, the political groups on a council could come together (virtually) to agree a “pairing off” system to distribute any decision-making requirements amongst members (leaving out the most vulnerable elderly with medical conditions), whilst maintaining political balance on Council/Committees and the minimum quorum level. The quorum under the Local Government Act 1972 is 1/4 for council meetings and, depending upon the Council’s constitution, often 1/3 for committees. Those members who do agree to attend could be spread out in the room or chamber to the required social distancing level.

Local authorities should look to utilise the urgency provisions they may already have in their constitution where necessary to take non-executive decisions between meetings to protect the health, safety or welfare of individuals or the interests of the council. Alternatively, members could come together to adopt a new delegated decision-making process that allows officers to take all decisions in consultation with relevant members (no doubt only on a temporary basis during the pandemic).

All executive power vests in the Leader as ‘senior executive member’ under section 9E Local Government Act 1972, and the Leader can authorise any executive member or officer to take decisions at any time. The Leader can therefore delegate to the Chief Executive any decision – in an emergency or that is urgent or that would be necessary or expedient, or which would otherwise protect the council’s interests – that is an executive function. For executive functions, the Leader can also delegate decision making across the Cabinet to spread the workload and avoid the need for meetings of the Cabinet altogether. The Leader and the Chief Executive and/or Portfolio Holder would then be able to exercise such decision-making powers concurrently, providing flexibility of operation, as needs require and minimising the need for face to face contact in meetings.

As the source of the delegation for executive and non-executive functions is different, it would make sense to get revised authorisation from the Leader for executive functions as soon as practically possible.

Whilst certain decisions may only be taken by the full council, these are limited. All local authorities will have now set their budgets and adopted their pay policy statements, meaning some of the most significant decisions have now been taken, for the time being at least.

It is important to remember that, except in the case of executive functions (or local ward functions if delegated), no single member can make a decision. Therefore, decisions of all council side committees will either require a quorum of that committee, or an increased delegation to officers. This could pose particular difficulties for planning and licensing (especially regarding the statutory guidance on licensing decisions under section 182 Licensing Act 2003).

It is intended that there will be no ordinary elections in 2020 and therefore the membership of the council is unlikely to change. If there is no Annual Meeting it is assumed that the current Leader will remain in office. However, it will be necessary to check the constitution as that office will be stated to come to an end at Annual Council in some authorities and in others at the end of 4 (or fewer) years from the appointment as Leader. It should be noted that it is not possible for the Chief Executive to appoint somebody else to be Leader, the Leader must be elected by a meeting of full Council. In the event that something happened to the Council’s Leader and deputy Leader then another member of Cabinet would need to perform the function of Leader, appointed by the remaining Cabinet members, until such time as a new Leader is elected by a meeting of full council.

Companies and Outside Bodies

Councils should also consider decision-making in relation to local authority companies and joint ventures for which it may be easier to introduce greater delegation and/or remote decision-making by amending the Constitution/Articles of Association. More recently drafted versions often contain provisions enabling "remote" signing and approval of written resolutions, as well as telephone conferencing or videoconferencing for board meetings. Older Constitutions/Articles of Associations may not have envisaged the need for remote forms of decision-making but should be checked.

Power to amend the Constitution

The usual position is that the Monitoring Officer has the power to amend the Constitution on an ad hoc basis for relatively minor changes, and substantive amendments to the Constitution will only be approved by the full Council. In view of Covid-19 and, as part of the extended scope of decision-making in the context of an emergency, urgency or otherwise in the Council’s interests, Councils could consider allowing the Chief Executive to make changes to the non-executive delegations in the Constitution, in consultation with the Mayor/Chair of the Council and/or Chair of the relevant committee.

Access to Information Requirements

Despite the alternative arrangements that may be put in place, it is important that reports should still be written with sound and cogent reasons for decisions and published online with the requisite notice. Individual decision-makers will need to have regard to the publication requirements under the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 and have cogent reasons to take decisions on grounds of urgency and in accordance with the general exceptions and special urgency provisions.

Conclusion

Although the MHCLG press release mentioned above refers to the potential for a virtual Annual Council meeting it does not refer to other Council meetings – it may therefore be prudent to draft reports now to cover the delegation of further authority in readiness for a virtual Annual Council meeting and to consult on group attendance protocols where it is absolutely necessary to continue to hold Council and or Committee/Sub-Committee meetings.

 

 

Bevan Brittan Business continuity

Bevan Brittan are moving to work from home with effect from close of business on 17 March following the PM’s announcement. We support fully agile working which means that all of our staff have the potential and ability to work at home and do so regularly. We have over the last few weeks tested our systems (phone and IT) to ensure all colleagues can do so effectively and that they can access the client files and documents they need remotely to ensure we can continue to provide you with a continuous service.

Information and cyber security

When working from home, colleagues follow our Information Security policies to safeguard client and BB confidential information.

Please therefore be reassured of our ability to continue to offer you a seamless service notwithstanding these uncertain times.

 

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For further assistance on coronavirus issues, our COVID-19 Advisory Service is now available.