On 25 March, the Coronavirus Act 2020 (the ‘Act’) received Royal Assent. The Act's measures are far-reaching and introduce unprecedented measures for unprecedented times. The range of powers in the Act apply to various public bodies but for the purposes of this article we are focusing on the powers given to local authorities in the conducting of public meetings.
With the current COVID-19 restrictions, planning committees have had to be cancelled. Existing legislation requires meetings to occur at a ‘place’ by a ‘majority of members present and voting’. On the basis the current lockdown measures are likely to persist for some time, not determining applications until the pandemic is over is not a viable option.
Section 78 of the Act introduces the power to make regulations with regard to the meeting and proceedings of local authorities, and the secondary legislation came into force on 4 April 2020 in the form of the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panels) (England and Wales) Regulations 2020 ('the Regulations'). The Regulations give the power to amend existing legislation governing the holding of meetings and decision making.
The Regulations apply to meetings held, or required to be held, before 7 May 2021, with the flexibility to reduce or extend this period as necessary.
Section 78 (1) of the Act sets out the matters to be governed by the Regulations including where meetings are held, flexibility to call them at any time and on any day, the ability to alter the frequency of meetings and to move all meetings ‘without requirement for further notice’.
Regulation 5 makes provision for the members of the public body concerned and members of the public to attend virtual meetings remotely and allows for meetings to be conducted in more than one ‘place’. Meetings are ‘not limited to a meeting of persons all of whom, or any of whom, are present in the same place’. For the purposes of the Regulations a ‘place’ includes ‘electronic, digital or virtual locations such as internet locations, web addresses or conference call telephone numbers’.
A person, being a councillor or member of the public, can attend by ‘remote access’. The meeting can be visual and audio, or simply audio. The former would be preferable, but either is possible for the purposes of the Regulations and attendance must be in real time i.e. a recording will not be sufficient for a person to say they were present.
A member is considered to have attended a meeting if all of the conditions set out in Regulation 5(3) are met so that the member in remote attendance is at all times able:
(a) to hear, and where practicable see, and be so heard and, where practicable, be seen by, the other members in attendance,
(b) to hear, and where practicable see, and be so heard and, where practicable, be seen by, any members of the public entitled to attend the meeting in order to exercise a right to speak at the meeting, and
(c) to be so heard and, where practicable, be seen by any other members of the public attending the meeting.
The administration of this will be vital to ensure that the decision making process is fair and, so far as possible, not subject to challenge. It will be particularly important to ensure that remote access is available to those required to take part in the meeting so that a member can engage fully.
Regulation 5(5) provides that the provisions relating to remote attendance apply regardless of any prohibitions or restrictions set out in standing orders or a local authority’s constitution. Advice issued by the Planning Advisory Service, which can be found here, suggests that it will be for a local authority to determine whether or not amendments to existing documents are required or whether the provisions of Regulation 5(5) are sufficient. If a local authority considers an amendment is required this could be in the form of an appendix which sets out a “catch-all amendment” which makes it clear that the Regulations apply and this could be time-limited to correspond with the time limit set out in the Regulations.
Regulation 5(5) is not to be considered a ‘get out of jail free card’ and the advice would be to check existing documents to determine whether or not amendments are required. In addition the procedures for making amendments to constitutional documents should also be checked and amended as necessary.
Local authorities should spend some time reviewing their current scheme of delegation to determine whether there is an opportunity for some applications to be dealt with under delegated powers as opposed to committee. Again, this may require amendments to existing schemes of delegations and considerations of the procedure for putting this in place.
Regulation 5 (6) give local authorities the powers to make standing orders and other rules may be created to make provision for voting, member and public access to documents; and remote access of public and press to meetings by electronic means.
The virtual meeting provisions assume that the public will continue to have a role in public meetings as normal and where possible local authorities should continue to allow this. To do so, authorities should consider the practicality and administrative measures that they may need to put in place. If they can introduce procedures to identify public speakers in advance of the meeting, as would be the case in normal circumstances, they could provide participants with the details of how to access the meeting remotely.
Where concerns over accessibility and fairness are raised a question might arise as to whether items should be deferred until normal meetings can resume.
Access to the papers relating to the meeting is vital to the success of virtual meetings. In practice, local authorities already publish the agenda and accompanying reports on their websites in advance of meetings and therefore such requirement should not be problematic.
Existing legislation already requires local authorities to make ‘copies of any report for the meeting… open to inspection by members of the public at the offices of the council’ and to make background papers available. These are:
“those documents relating to the subject matter of the report which:
(a) disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and have, in his opinion, been relied on to a material extent in preparing the report, but do not include any published works.”
A large number of local authority offices are closed and on the basis that the social distancing guidelines would not allow for a visit to a local authority office to inspect papers in advance of a meeting the Regulations provide that:
“a document being “open to inspection” includes being published on the website of the council; the publication, posting or making available of a document at offices of the council include publication on the website of the council.”
Section 100A(1) of the Local Government Act 1972 begins ‘A meeting of a principal council shall be open to the public …’ and that right is retained by Regulation 13 by expanding the meaning of ‘open to the public’ to include purely remote access as follows:
“a meeting being “open to the public” include access through remote means including (but not limited to) video conferencing, live webcast, and live interactive streaming and where a meeting is accessible to the public through such remote means the meeting is open to the public whether or not members of the public are able to attend the meeting in person.”
The most obvious means of allowing remote access is to webcast the meeting and many local authorities may have procedures in place to allow for meetings to be webcast to the public already so there will need to be adaptations to those arrangements to allow for the greater flexibility that the Regulations provide.
Regulation 6 relates to frequency of meetings and amends the Local Government Act (LGA) 1972 by removing paragraphs 1-7 of Schedule 12 which has the effect of removing the requirement for an AGM.
As a result current appointments continue until the next AGM or when the public body so determines.
The arrangements laid out within the Regulations have been drafted to give maximum flexibility and to allow, so far as is possible, decisions to be made.
The widening of the interpretation of ‘place’ and the greater flexibility offered in Regulations may cause some administrative concerns however, in order for the planning system to continue to operate during these unprecedented times such flexibility is fundamental.
The question might be, once this is all over, will this herald a new era for remote decision making?
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