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Remote meetings partnership: compendium of information on remote meetings

In England, a partnership of national organisations came together in March 2020 to support councils to put remote meetings arrangements in place. In recent months, the partnership has been co-ordinating discussion on the planned end of remote meeting powers on 6 May 2021, and exploring alternative options and actions to mitigate. This document is intended to provide a comprehensive picture of the current state of play. It has been prepared by CfGS on behalf of the partnership and will be updated regularly to reflect the evolving situation.

Version 1: 6/4/21

  • Current provisions in the Coronavirus Act, which permit meetings of local authorities to occur remotely, will cease to have effect on 7 May 2021;
  • Government has confirmed it will not take action to extend or replace these powers before May – but this is not the end of the story;
  • The effects of the pandemic – including the need for social distancing – are certain to continue into the summer, and certainly beyond the sunset clause date of 7 May. This demands immediate action;
  • Notwithstanding the need for short term action there is overwhelming evidence in support of permanent freedoms in this area, with significant logistical and democratic benefits for councils and the communities they serve in being able to convene meetings this way. Councils, and local communities, will benefit from the flexibility that remote meetings can provide;
  • Permanent arrangements could be given effect through primary legislation – or through changes to existing Regulations;
  • Notwithstanding all of the above, it is strongly arguable that local authorities have a pre-existing power to convene meetings of the council, and of the executive, remotely. This position is being tested by legal action being undertaken by Hertfordshire County Council, LLG and ADSO;
  • As this continues, Government has issued a “call for evidence” on the subject with a view to changing the rules at some point in the future;
  • Government needs to engage with the issues set out in this paper and work with partners to develop a sustainable way forward. Time is running out.

We anticipate that this material can be used by councils to provide comprehensive updates to their councillors – and officers – as the sunset date of 6 May approaches. The material is presented as a web product because we plan to make changes to the contents as the situation changes through April.

While this material engages substantively with the matters highlighted in the “call for evidence” issued by the Minister in late March 2021, it should not be seen as providing a formal response to that call for evidence.

This material relates only to the ongoing provision of powers for remote meeting in England. Permanent provisions exist in law for such meetings in Wales through the Local Government and Elections (Wales) Act 2021.

This material has been drafted by the Centre for Governance and Scrutiny on behalf of a group of partners providing support to councils on remote council meetings. These partners are:

  • The Local Government Association (LGA);
  • The Association of Democratic Services Officers (ADSO);
  • Lawyers in Local Government (LLG);
  • The National Association of Local Councils (NALC);
  • The Centre for Governance and Scrutiny (CfGS);
  • The Society for Innovation, Technology and Modernisation (Socitm).

These partners have collectively assisted councils to put in place effective remote working arrangements, in particular in March and April 2020. ADSO and LLG produced technical guidance in April 2020 setting out model rules of procedure for remote meetings.

The introduction of the first national lockdown in March 2020 meant that councils were unable to transact formal business in an ordinary way. Schedule 12 of the Local Government Act, which governs most formal meetings in local government, makes no explicit provision for remote meetings.

As such, provision was made in s78 of the Coronavirus Act (CV Act) to allow for remote meetings to be held. These powers were supplemented by Regulations, which were laid and came into force in April 2020.

Councils put in place remote working solutions at short notice, and with limited capacity. Like others in the public sector significant time and effort was expended to ensure that, rather than being a second-best stopgap, meetings conducted remotely would be carried out so as to reflect high standards of governance and administration. Councils have returned to a full cycle of meetings having ramped up this activity over the course of spring 2020, and these arrangements continue to work well overall.

Since summer 2020, councils have increasingly discussed the prospect of convening “hybrid meetings”, with some councillors attending physically and some remotely. Tentative steps to explore this option were made in the autumn but were extinguished by the November lockdown, and subsequent lockdown in early 2021.

Should councils be able to continue to convene meetings remotely we consider that “hybrid meetings” will form an important part of any “return to normality”, as well as affording the flexibility that councils need in the aftermath of the pandemic. We expect to produce more material on this subject when the position on remote meetings becomes clearer over the course of April.

The sunset clause and Government’s view

s78 of the CV Act is subject to a sunset clause meaning that, without action being taken, the convening of meetings remotely will not be possible beyond 7 May 2021. The Local Government Association and other partners have already brought this to the attention of Government, by way of a joint letter sent to MHCLG in December 2020. Responding to this letter, Luke Hall MP, Minister of State for Local Government, said,

To extend the facility for councils to continue to meet remotely, or in hybrid form, would require primary legislation. There is no option to extend the current regulations under the Coronavirus Act 2020 as section 78 (3) contains the sunset date of 7 May 2021. There is considerable pressure on the Government’s legislative programme. However, I appreciate the arguments you have put forward and I will consider the case for this with colleagues in the Government. 

Responding since organisations in the sector began arguing for action to be taken, MHCLG said that council’s views have been heard “loud and clear”. However, in late March the Minister of State issued a further letter to Leaders of principal councils in England, confirming that Government proposed to take no action to remedy the situation before the expiry of the powers in May 2021, again citing pressure on the Government’s legislative programme. The Minister in this letter suggests some possible actions to mitigate negative consequences (which we deal with below) and announces a “call for evidence” on the reprovision of remote meeting powers at some future date.

The partnership’s view is that:

There is widespread, strong support for action to support councils to deliver meetings remotely temporarily, and for permanent powers to be made available for councils to deliver meetings remotely in future. In CfGS’s Annual Survey of overview and scrutiny in local government (carried out in early 2021), 70% of over 260 respondents from around 100 English councils expressed a preference for making these arrangements permanent.

Why a solution is necessary

In the short term, the Government’s coronavirus roadmap sets out four steps to a gradual easing of restrictions, hopefully culminating on or after 21 June. This is predicated on an expectation that the coronavirus will continue to be in community circulation indefinitely, but that the effects of this can be managed proportionately. Importantly, the dates attached to the remaining “steps” are the earliest possible dates at which point a loosening of restrictions will take effect. 

No date has yet been set for an end to “social distancing”, mask wearing or the advice to work from home where possible. Colleagues in public health have suggested that even in a best-case scenario some social distancing arrangements, including mask wearing, may need to be in place for a considerable length of time, especially in confined spaces. At the time of writing Government continues to recommend that people work from home where possible. 

Expecting meetings to be convened entirely physically during this period is unreasonable.

In the longer term, the benefits of giving councils the flexibility to convene some meetings remotely is significant.

Benefits have included – and will continue to include:

  • Making local authority meetings available to a wider audience via the web in a way that has long been challenging for remote meetings. Evidence gathered by ADSO demonstrates that public attendance at, and input to, formal meetings has increased substantially since last year now that remote attendance is possible;
  • Logistical benefits, in removing attendance challenges in rural areas and/or areas where joint meetings need to be convened. There is the risk that joint, formal bodies have hitherto met infrequently, and could be less responsive in carrying out their work – challenges that effectively disappear where remote working is an option. In combined authorities, meeting challenging quoracy requirements (for example, for scrutiny meetings) was often a difficulty. Again, that barrier has effectively been removed;
  • Benefits to pluralism. This centres on the engagement of those with caring, professional or other responsibilities. The LGA Councillor Census 2018 highlights that 16% of councillors had a long term health problem or disability limiting their daily activities; 36% had caring responsibilities. A large proportion of councillors are retired, with proportionately fewer of working age than in the general population. Providing councils with additional flexibility on how meetings are convened will allow them to think of more inclusive ways to involve councillors who might otherwise face barriers to in-person involvement – in due course, this might serve to encourage people to stand for election whose personal circumstances might otherwise have made it difficult for them to engage.

(This reflects information gathered by the partnership across the past year). 

It is worth noting that the benefits of convening local government meetings remotely have been explicitly accepted by Government. In 2017, Government consulted on providing for remote meetings for meetings of combined authorities and joint committees. Providing its response to those who answered this consultation Government resolved to take action in legislation to place remote meetings on a permanent footing not only for these limited purposes, but also more generally for authorities (including rural authorities) where bringing councillors together regularly can prove especially challenging.

Safeguards for permanent use

Any powers to convene meetings remotely on a permanent basis will be used proportionately and appropriately, and in a way that councils as democratic institutions consider is necessary for transparency and accountability. Once the threat of the virus has receded we anticipate that in-person meetings will once again be considered the norm. We anticipate that councils will lay out in their constitutions transparent criteria by which decisions will be made as to where and when convening meetings remotely, or in hybrid form, will be most appropriate.

By and large physical meetings will remain the default option, with use of hybrid arrangements providing an inclusive option for councillors less able to participate in this way. We have already noted that councils have carried out significant work investigating the possibilities and shortcomings of such hybrid meetings.

Councils are already putting in place plans to manage this eventuality.

Mitigation may include (but will not be limited to):

  • Seeking to transact certain urgent business before the expiry of the powers;
  • Attempting to find venues which can provide for in-person meetings in a way that complies with social distancing requirements. This is under active consideration by a large number of councils needing to convene Council AGMs during May. This involves time and effort in the identification of appropriate facilities and the design of meeting arrangements for those meetings, as well as hire costs. Conservatively we estimate that the costs, for Council AGMs alone, is likely to run into hundreds of thousands of pounds across the sector in England;
  • Mandating a maximum number of attendees for certain meetings. Full Council meetings present a particular challenge. If elections go ahead as planned, Council AGMs will be held in May 2021, and will need to be held physically. Councils will need to ensure that such meetings are quorate but may require that only a small proportion of councillors attend in order to maintain the needs of social distancing, and reduce the risk of infection. This would directly disenfranchise large numbers of councillors, particularly in bigger authorities;
  • Limiting public attendance. Public attendance at meetings will bring with it additional risks. Councils may have to investigate legal mechanisms by which only a very limited number of people may be admitted to observe meetings. This will mean that councils may have to incur a capital outlay in putting in place high quality broadcast systems to ensure standards of transparency can be maintained, even on a temporary basis. There is a question as to whether, if the “rule of six” continues in place beyond May, whether councils can legally convene meetings in public even if the councillors present are deemed to be attending for work purposes;
  • Devising ways to carry out quasi-judicial and regulatory functions. Applicants, appellants and others with a formal role to play in council proceedings may reasonably consider that they are at serious risk if asked to attend an in-person meeting. The legality of permitting those individuals to join a meeting remotely will need to be investigated;
  • Identifying alternative venues for some meetings. Many venues traditionally used for council meetings (committee rooms, for example) may be small, have fixed desks and seating and poor ventilation, as well as insufficient internal and external circulation space. It may be difficult to find appropriate, larger external venues if national restrictions are such that they (community centres, leisure centres) remain closed;
  • Operation of unsatisfactory workarounds. For some meetings, councils may be tempted to convene “meetings” of members remotely, to discuss matters and to inform decisions which may then be made in another place under delegated, urgency or emergency powers. Most council constitutions contain provisions on emergency powers which were used fairly extensively in the early stages of the pandemic and councils also have access to general emergency decision-making powers under s138 of the Local Government Act 1972. These could be used as a way for a council Chief Executive, for example, to make decisions “on behalf of” a member meeting where it is considered impossible for that meeting to convene physically, but where remote proceedings are possible. Such mechanisms have been suggested, in general terms, by the Minister. We do not wish to see the situation arise where this kind of workaround becomes common practice but many authorities may consider it an inevitable necessity.

A lack of a permanent change, notwithstanding any temporary solution, would have less high profile implications, but still ones that are serious. The logistical benefits, and benefits around plurality and in respect of local authority responsiveness that we mentioned in the section above, would not be available. The opportunity to adopt 21st-century models of working – taking advantage of the shifts in behaviours that are expected post-pandemic – will have been lost.

Three principal routes exist, presented below in order of preference:

In the longer term, notwithstanding whether the outcome of any of the above, Government may consider it prudent to place an explicit power to convene meetings remotely on a formal footing through primary legislation.

First preference: a declaratory judgment from the High Court to the effect that councils can continue to convene meetings remotely

Section 78 of the Coronavirus Act purports to provide local authorities with the power to convene council meetings, and meetings of the executive, remotely. However, it is arguable that councils already held that power and that, while s78 and Regulations issued pursuant to that section provide clarity, they do not replace or remove an existing power, which will persist beyond 6 May 2021.

This is the main thrust of the arguments put forward in legal action initiated by Hertfordshire County Council, Lawyers in Local Government (LLG) and the Association of Democratic Services Officers (ADSO) in February.

These parties served a pre-action letter to the Secretary of State in respect of submissions to be made to the High Court for a declaratory judgment on the ongoing legality of remote meetings. In March, the High Court considered the matter at a directions hearing, and passed substantive consideration of the matter to the Administrative Court, which is expected to hear arguments in late April.  

This action is not “against” the Government, but seeks clarity from the court on the law as it stands, to ensure that Monitoring Officers are able to act with confidence in continuing with meeting remotely. The Secretary of State, and others with standing, may choose to intervene in the case to make their own submissions.

The substantive position on the meaning of “meetings” and “place”

The argument, in brief is that there is precedent on “meetings” being convened for a legal purpose. Relevant caselaw includes a creditors’ meeting under the Companies Act 2006 being able to meet remotely notwithstanding explicit reference to that effect in legislation (Re Castle Trust Direct plc [2020] EWHC 969 at 38).

This question has also been explored (again in relation to formal meetings for the purposes of the Companies Act 2006 and its predecessor legislation) in other cases (Re Altitude Scaffolding [2007] 1 BCLC 199, Byng v London Life Association Ltd [1990] Ch 170).

The word “place” is not defined in the 1972 Act or elsewhere as referring to a physical place. It is a natural reading of this word in a contemporary context that “place” might include an online space, or platform, such as Zoom, MS Teams, YouTube or a council’s own website.

The words “place” and “present” are incidental to the term “meeting”, and should a “meeting” include a meeting convened remotely it follows that a person attending such a meeting is “present” at it. 

For meetings of executives

Council executives are not committees covered by the Local Government Act 1972. Instead they are creations of s9C of the Local Government Act 2000.

Provisions around access to these meetings are set out in the Local Authorities (Executive Arrangements) (Access to Meetings) (England) Regulations 2012. Part 2 of these Regulations specifies that meetings must be held in public but no further requirements are specified. Given this situation it is reasonable that meetings of an executive could be legally held remotely notwithstanding the way that s78 of the 2020 Act is drafted.

Combined authority boards’ meeting arrangements are set out in each CA’s bespoke Order. The terms of these Orders are by and large similar, and closely reflect the wording of the 2012 Regulations.

For meetings of other committees

Section 4(1) of Schedule 12 of the Local Government Act 1972 sets out that “Meetings of a principal council shall be held at such place, either within or without their area, as they may direct.” Section 10(1) of that Schedule contains a similar provision for community and parish councils. Section 100A of Part VA of that Act provides more detail on admission to meetings, which includes notice requirements on the “time and place” of meetings. .

Committees of combined authorities are convened by virtue of the bespoke Orders establishing those combined authorities. Such committees are “1972 Act” committees, by virtue of s2(4) of Schedule 5A of the Local Democracy, Economic Development and Construction Act 2009, which states that s100A of the 1972 Act applies to their operation.

The extent to which this position can be argued hinges on the meanings of how “meetings” are held as a “place” at which members are “present”. The meaning and scope of these three words is particularly important.

Second preference: a permanent solution from Government

We consider that a permanent solution is possible without the need for primary legislation, and may therefore be preferable. There are a number of routes which we urge Government to explore. We consider that any changes through secondary legislation would seek by and large to transpose the wording of the existing Regulations, given that councils will already have drafted rules of procedure which relate to the wording in those Regulations. Of course, Government could also choose to use primary legislation, which could be designed to apply to all affected authorities, including local councils as well as principal authorities. 

We consider that the most credible options include:

  1. s3(1) of the Local Government Act 1999, and the use of the Order-making power under s16 of that Act.

It should be noted that this option applies only to Best Value authorities – that is, principal councils. An alternative approach would need to be taken to provide for the needs of local / community councils.

The 1999 Act imposes a duty on Best Value authorities, in s3(1), to:

“make arrangements to secure continuous improvement in the way in which its functions are exercised, having regard to a combination of economy, efficiency and effectiveness”

In s16, the Secretary of State is given the power to determine whether an enactment prevents or obstructs compliance by Best Value authorities with the Best Value duty. If the SoS so determines he may make an order modiying or excluding the application of the enactment.

Caselaw has engaged with the question of the meaning of the phrase “make arrangements to secure continuous improvement” (R (Nash) v Barnet London Borough Council  [2013] EWHC 1067 (Admin), R (Williams) v Caerphilly Borough Council [2019] EWHC 1618 (Admin)). The general principle is that “arrangements” here must be high level, and engage closely with local authorities’ BV duties.

Above we set out reasons why remote meetings confer substantial benefits to the operation of the authority and to democracy in the wider area; authorities making arrangements for such meetings are doing so in order to bring about continuous improvement.

The Secretary of State can thus by empowered by virtue of s16 to make an Order providing for the amendment needed to the 1972 Act to ensure that authorities can in fact make these arrangements.

  1. s15, Cities and Local Government Devolution Act 2016

The section makes provision for the Secretary of State to make Regulations relating to the governance arrangements of a local authority. This provision would only apply to principal authorities – county councils (including unitary counties), district councils (including unitary districts) and London boroughs. It would not apply to community or parish councils or to combined authorities.

“Governance arrangements” here means the operation of executive arrangements, of a committee system, or of prescribed arrangements, as set out in the Local Government Act 2000 (as amended). The manner in which formal meetings may be convened – and the ability to do so remotely – must under any normal reading of these words go to the heart of what is meant by “governance arrangements”.

Regulations under this section can only be made subject to the consent of the authorities to which they apply. A process would have to be undertaken, supported by partners in the sector, to secure that consent. Given the urgency and nature of the issues involved we do not anticipate this presenting a problem. 

Under s15(9)(d), Regulations made under this section “may, in particular, be exercised by amending, repealing, revoking or otherwise modifying any provision made by or under an Act passed before this Act or in the same Session”. This can provide for a situation where Government might consider it necessary to make specific amendment to the Local Government Act 1972 – to effect a permanent solution on this issue. This would not permit a change to be made to the Coronavirus Act 2020, given that it is a more recent piece of legislation; hence not citing this approach as conferring powers to effect a temporary solution.

Regulations under this section are subject to additional scrutiny requirements in Parliament.

Third preference: temporary extension of the right to convene remote meetings as the pandemic continues

Provision has since March 2020 been made under s78(3) of the Coronavirus Act, which has a sunset clause of 7 May 2021. Regulations were laid under this section and came into force in April. Changing the application of these Regulations would require an amendment to the Coronavirus Act either to:

  • remove the sunset clause entirely (which would mean that the provisions would expire two years after the Act was passed, in line with s89 on “expiry”);
  • substitute a different date – for example, some time in autumn 2021.

Options to take this action would include:

  • The introduction of primary legislation specifically for this purpose;
  • The amendment of an existing Bill or a forthcoming Bill to include clauses giving this effect.

 

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