Back to Reality: High Court rules against Virtual Committees
Yesterday, the High Court laid to rest our last hope of virtual committee meetings being able to continue past 7 May 2021, when it handed down its judgment in Hertfordshire County Council & Others v The Secretary of State for Housing, Communities and Local Government*.
The claimants had been seeking a declaration from the High Court that Schedule 12 to the Local Government Act 1972 could be construed so as to permit local authorities to continue to hold remote meetings after 7 May 2021, when the existing temporary powers to do so expire.
The case was supported, albeit belatedly, by the Secretary of State; who viewed the declaration as a pragmatic way to extend the ability to hold remote meetings. Particularly as it would avoid the need to pass the primary legislation to amend or replace the Coronavirus Act 2020, which contains the current 7 May 2021 deadline.
Unfortunately, the High Court held that the Local Government Act 1972 did not permit remote meetings and that primary legislation would be needed to enable them to continue.
The Court found that:
"76. .... the meaning of "meeting" must in our judgment be informed by reading Schedule 12 as a whole. This includes the obligations to hold the meeting "at such place, either within or without their area" as a principal council, parish council or community council may direct (paragraphs 4(1), 10(1) and 26(1)), to publish "notice of the time and place of the intended meeting" and to send out "a summons to attend the meeting" (see e.g. paragraphs 4(1A), 4(2), 10(2), 26(2)). In our view, a "place within or without the area" is most naturally interpreted as a reference to a particular geographical location and would not naturally encompass an online location; and a requirement to send out "notice of the time and place of the intended meeting" is inconsistent with the idea of a meeting taking place at multiple locations (e.g. in the homes of all participants). ..... Attending a meeting at a single specified geographical location would, in our view, ordinarily mean physically going to that location; and being "present" at such a meeting would involve physical presence at the specified location."
"78. There is... another feature of the statutory context which makes it unlikely that Parliament intended an updating construction to apply. The meetings provided for by Schedule 12 to the 1972 Act are 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. 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. .... It is legitimate to construe the 1972 Act in a way which promotes 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."
Whilst it is distinctly possible that remote meetings will make a comeback**, we are now facing a cliff edge. In a mere nine days' time it will no longer be possible to hold planning committees remotely in England.
This cliff edge is likely to be softened by the fact that a great many councils in England are holding local elections on 6 May. This will delay subsequent planning committee meetings a little, whilst newly elected members settle into Council life, but nonetheless, the transition back to in-person meetings is likely to be a bumpy one.
MHCLG has published guidance for councils on how hold in person meetings safely after 7 May. The guidance stresses the need to maintain social distancing during meetings and to take steps to reduce the risk of transmission between members and attendees, which could include:
- considering whether the meeting can be redesigned to maintain a 2m distance or 1m with risk mitigations where 2m is not viable.
- further increasing the frequency of hand washing and surface cleaning
- keeping the meeting time as short as possible
- using screens or barriers to separate people from each other
- using back-to-back or side-to-side working (rather than face-to-face) whenever possible; and
- hiring additional function or event space for essential meetings.
Where this is not possible, Councils are advised to consider the full range of options available to them, including:
- Use of existing powers to delegate decision making to key individuals to minimise the number of meetings held; or
- Relying on single-member decision making where the Council's constitution allows.
Councils are also encouraged to maintain remote access to meetings for members of the public until at least June 21st.
The guidance is not straightforward and navigating it is likely to prove a bit of a minefield, despite the recent progress made with vaccinations and the lifting of lockdown restrictions.
With that in mind, it is distinctly possible that the planning system's return to reality over the next few weeks could be more than a little bit bumpy...
* [2021] EWHC 1093 (Admin)
** MHCLG has issued a call for evidence about the pros and cons of allowing virtual meetings to continue - which runs until mid June 2021.
Conclusion
For these reasons, we conclude 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.
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 cour...”
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