The High Court in the case of Hertfordshire County Council and others v Secretary of State for Housing, Communities and Local Government [2021] EWHC 1093 (Admin) has held that the provisions relating to Local Authority meetings in Schedule 12 to the Local Government Act 1972 (LGA 1972) does not allow Local Authority meetings to be held remotely and that primary legislation will be required by Parliament.
Background
Schedule 12 LGA 1972 deals with meetings of statutory authorities in England and Wales and covers matters such as how notice of meetings is to be given, who can attend and how often such meetings must take place. There are several references in Schedule 12, which refer to the “place” of such meetings, to individuals being “present” at meetings and to the persons who may “attend”. The long-standing practice has been for such meetings to be conducted in person, with the participants meeting at a particular location.
On 25 March 2020, due the coronavirus pandemic, Parliament passed the Coronavirus Act 2020 (CVA 2020). Section 78 of the CVA 2020 allowed the making of regulations to provide for (among others) “the manner in which persons may attend, speak at, vote in, or otherwise participate in, local authority meetings”. The CVA 2020 expressly included “provision for persons to attend, speak at, vote in, or otherwise participate in, Local Authority meetings without all of the persons, or without any of the persons, being together in the same place”. However, the provisions were limited in application to Local Authority meetings required to be held, or held, before 7 May 2021.
On 1 April 2020, 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 made and came into force on 4 April 2020. The Regulations amended the LGA 1972 to permit Local Authorities to hold meetings remotely.
The purpose of the Regulations was to:
- Enable local authorities to hold meetings remotely including by (but not limited to) telephone conferencing, video conferencing, live webcast and live interactive streaming.
- Further modify existing legislative provisions to remove the requirement for Local Authorities to hold annual meetings, and to enable requirements for public and press access to Local Authority meetings and associated documents to be complied with through remote means and website access.
On 23 February 2021, Hertfordshire County Council, Lawyers in Local Government and the Association of Democratic Services Officers (claimants) wrote to the SoS in their pre-action letter indicating their intention to issue Part 8 proceedings seeking declarations that Local Authorities have the power other than under the Regulations to hold member meetings (wholly or in part) remotely. The claimants considered that the declaration would be a way of addressing the issue without the need for legislative change. Having considered the claimants’ arguments, the SoS agreed it was possible to interpret Schedule 12 to the LGA 1972 “in a way that enables remote or hybrid meetings to take place” and was therefore supportive in principle of the proposed claim, although he considered the Claimants’ objectives could be achieved if the Court were to give its opinion on the meaning of the words “meeting”, “place” and “present” in the LGA 1972, without making a declaration.
On 25 March 2021, the Ministry of Housing, Communities and Local Government (MHCLG) announced that it did not intend to extend the provisions in the Regulations immediately to allow participation in Local Authority meetings by remote access beyond 6 May 2021, and that extending the date on which the Regulations cease to have effect would require an amendment to the CVA 2020, which would impact on the government’s wider legislative programme. At a direction hearing on 23 March 2021, Judge Swift ordered that the claim be transferred to the Administrative Court to proceed as a judicial review claim under Part 54.
Judgement
The issue for the High Court to decide was whether, when the Regulations cease to have effect, the LGA 1972 will permit remote meetings in England to take place. In reaching its decision, the High Court discussed the following points:
- The meaning of “meeting” in the statutory context of Schedule 12 to the LGA 1972, rather than considering what it meant in the abstract as the claimants submitted.
- Schedule 12, as a whole, 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” (paragraphs 4(1A), 4(2), 10(2), 26(2)).
- In the Court’s 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 in the homes of all participants.
- Attending a meeting at a single specified geographical location in the Court’s view ordinarily means physically going to that location and being “present” at such a meeting involves physical presence at the specified location.
- The claimants submitted various legal authorities in support of the “updating approach” to statutory construction. The claimants asserted in their submission that the question was not whether, in enacting the LGA 1972, parliament had in mind that meetings might be conducted remotely, but whether a remote meeting is one that satisfies the purposes for which parliament legislated for Local Authority meetings (that is to enable members to consider and debate local authority business together and to make decisions). The claimants’ submission was that remote meetings are entirely consistent with these purposes.
- Given the statutory context of the legislation and the fact that the meetings (and the decisions taken at the meetings) provided for by Schedule 12 to the LGA 1972 are an important part of the mechanism of the country’s government, the High Court considered it was unlikely that parliament intended an updating construction to apply. It was important for there to be certainty about what constitutes attendance or presence at a meeting since otherwise it may be unclear whether a particular decision was validly taken (for example, it may be necessary to decide whether a meeting is quorate or a majority of those present had voted in favour of a particular resolution).
- The High Court read “meeting” as referring to an in-person meeting taking place at a particular geographical location and “attend” and “present” as implying physical attendance or presence at that location and that if the LGA 1972 already permitted remote meetings, section 78(1) of the CVA 2020 would have been otiose. The fact that it was included by the parliamentary legislators indicated that the LGA 1972 did not permit such meetings.
For the above reasons, the High Court concluded that the SoS had been correct to say that primary legislation would be required to allow Local Authority “meetings” under the LGA 1972 to be held remotely. The High Court held that when the regulations cease to apply on 7 May 2021, Local Authority 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.
Comment
The findings of the Local Government Association’s remote council meetings temperature check 2021, was that there is a level of support among Local Authorities for the option of remote meetings. Further, given the changes in working practice since the pandemic and that we are emerging from the pandemic restrictions, organisations and Local Authorities will be looking to continue with and incorporate remote working as part of their policies going forward. Therefore, there is an argument to be made that local authorities meetings should be allowed to be held remotely or as a hybrid. However, it remains to be seen whether the government will follow the lead of the Welsh Government and bring forward legislation which allows Local Authorities to hold meetings remotely.
