On 25 March 2020, the Coronavirus Bill 122 2019-21 completed its progress through the House of Lords and received Royal Assent. The Coronavirus Act 2020 (CVA) and the snappily titled Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 (Regulations) enable local authorities to hold virtual meetings. The Regulations came into force on 4 April 2020 and apply to all classes of local authorities including parish/town councils (including joint committees and sub committees), the Greater London Assembly, Combined Authorities and National Park authorities.
A letter from the Ministry of Housing, Communities and Local Government (MHCLG) to local authority chief executives dated 6 April 2020 states that the Regulations should allow local authorities to focus resources on responding to the Covid-19 pandemic, while facilitating essential decision-making in view of the public health guidance.
The Association of Democratic Services Officers (ADSO), Lawyers in Local Government (LLG) and the National Association of Local Councils (NALC) have jointly published guidance on the Regulations.
Under s78 CVA, the Secretary of State, Welsh Ministers and Department for Communities in Northern Ireland have powers to make regulations in relation to meetings of specified local authorities.
The Regulations permit remote access for participants in local authority meetings that need to be held, or are held, before 7 May 2021; the Government is able to legislate to bring forward this date if medical and scientific advice leads to the relaxation of social distancing rules.
The key provisions apply to any "reference in any enactment to a meeting of a local authority" and provide that:
- without further notice, a local authority may hold meetings when it decides to, and may alter the frequency of, move or cancel meetings (regulation 4); and
- participants may be in different places, including in "electronic, digital or virtual locations", which allows (internet-based) conference calls and other forms of remote access (regulation 5). Remote access will satisfy statutory attendance requirements, overriding any restrictions in standing orders or rules. Local authorities may make other standing orders and rules about voting, public access to documents and remote access of the press and public.
Under paragraph 6 of the Regulations, local authorities and parish councils are not required to conduct an annual meeting pursuant to Schedule 12 to the Local Government Act 1972 (LGA 1972). Other principal council meetings, including holding an extraordinary meeting, are subject to similar provisions permitting remote access and attendance as under regulation 5.
The Regulations amend various pieces of legislation, particularly the LGA 1972, concerning public and press access. Broadly, a meeting will be "open to the public" or "held in public" if the public can access it remotely. A local authority may publish meeting documents and notices of meetings on its website, instead of at its offices. Members must be able to hear and (where practicable) see and be heard and, where practicable, be seen by other members in attendance at the meeting.
The Regulations make similar provisions concerning meetings of the Greater London Assembly, specified conservation boards and National Parks authorities (regulations 7-12). Their application to Police and Crime Panel meetings extends to England and Wales.
It will be essential to provide comprehensive guidance and support to members on how to attend meetings remotely, including how to operate the software, microphones etc. Expectations should be carefully managed as it is unlikely that the virtual meetings will function seamlessly from the outset. Some teething issues are to be expected as the authority adjusts to the new paradigm, such as the unfortunate interruption experienced by South Somerset Council during their inaugural virtual planning meeting.
It should also be borne in mind that there is a possibility for challenge if technology issues mean members are unable to vote, or if for example an applicant is not able to speak at a planning committee. To minimise the risk of this, participants should be invited through a link; the Chair/democratic services officer/another officer should undertake due diligence and ensure that all participants who were intending to join the meeting have done so, and remain dialled in throughout (subject to ‘leaving’ the meeting if conflicted, as discussed below); and ideally the software should allow the Chair to mute/unmute participants (whether present or in attendance).
As regards pecuniary or other interests, we would suggest that it would be useful to have a rule whereby the Chair/democratic services officer/officer will be able to ‘lock out’ and/or mute the debate from members who have declared an interest, so that – much like the process for physical meetings – the member would be unable to hear, see, or participate in those parts of the meeting in which they have an interest.
As above, the Regulations provide that a meeting will be "open to the public" or "held in public" if the public can access it remotely. However, if the live stream goes down or members of the public do not have access to the internet or relevant software and are unable to access meetings, this could leave Council decisions open to challenge.
It is important to remember that all executive power vests in the Leader as ‘senior executive member’ under section 9E Local Government Act 1972, and the Leader can therefore take any executive decision and/or 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. It would therefore make sense to get revised authorisation from the Leader for executive functions as soon as practically possible, even if such powers do not need to be used. In delegating more executive decision making it would also be sensible to have a nominated deputy in case the delegatee falls ill or otherwise becomes unavailable.
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 the Chair of the relevant committee. Under most Council constitutions further delegation to the Chief Executive with explicit power to further delegate would need to be authorised by full Council since few Councils have authorised the Chief Executive to take all non-executive decisions in an emergency or where a matter is urgent or that would be necessary or expedient, or which would otherwise protect the Council’s interests.
The new ways of working will need to be documented in new protocols and the Council’s Procedure Rules will need to be reviewed and amended to take into account the change to remote meetings. Regulation 5 of the Regulations in effect replaces all legislation and procedure rules / standing orders covering the holding of meetings, and allows individual authorities to create supplementary rules or standing orders to fine tune the procedures for local circumstances and particular technologies. LLG and ADSO have published a remote meetings model Protocol and model Procedure Rules to assist local authorities in making these changes.
Access to Information Requirements
Regulation 16 allows meeting notices, agendas and reports to be available on the authority’s website in addition to being available at the authority’s offices, along with background papers. 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 still need to have regard to the publication requirements under the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 and the Local Government Act 1972 and have cogent reasons to take decisions on grounds of urgency and in accordance with the general exceptions and special urgency provisions.
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For further support and advice relating to the impact of COVID-19, please view our COVID-19 Advisory Service page.