On this page we will post short answers to some frequently asked questions that have emerged from our two webinars on remote meetings and The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 on 8 April 2020 and 20 April 2020
Please note that none of the below constitutes legal advice and should not be relied upon as such. Note also that the position for each local authority will differ according to its constitution.
1. Can chief officers use emergency delegated authority to amend standing orders?
This will depend on the terms of your scheme of delegation and your constitution.
Reg. 5(6) enables local authorities to adopt new "standing orders and any other rules ... governing the meeting about remote attendance at meetings". Meanwhile, Reg. 5(5) deems all existing standing orders incompatible with remote attendance to have been suspended.
In many local authorities, very flexible emergency powers have been delegated to the Chief Executive which, in principle, could be used to adopt a new remote meetings protocol to allow remote meetings to take place.
2. Is it necessary to have a live stream to enable public and press participation – or would it be sufficient to record the meeting and upload it subsequently (e.g. onto YouTube)?
Yes, a "live stream" is necessary. Members of the public and the press must be able to "attend" the meeting as it is happening.
The starting point is that meetings of local authorities must be open to the public (including members of the press): s.100A LGA 1972. The public can only be excluded from meetings in limited, specified circumstances: under s.100A(2), by resolution under s.100A(4) (exempt information) or under common law powers in cases of disorderly conduct.
That basic rule is reinforced by the Regulations:
- Reg. 5(3)(c) provides that members shall only be in attendance at the meeting if the member is able, at that time, "to be heard and, if practicable, be seen by other members of the public attending the meeting." It is implicit that the members of the public are in "attendance" while the meeting is ongoing.
- Reg. 5(4) provides that attendance by a member or a member of the public includes attendance "by remote access". By Reg. 3, "remote access" is to be construed in accordance with Reg.5(6)(c), which provides examples of how remote access can be done. The list includes telephone and video conference, live webcasts and live streaming. All of those forms of remote access imply that members of the public must be able to attend while the meeting is actually taking place.
So recorded footage, subsequently uploaded to the internet, would not constitute attendance by members of the public. It would therefore be unlawful to rely on that provision.
3. Are special arrangements required to ensure that councillors who attend meetings (but are not members of the relevant committee) to speak?
Most likely. Members who wish to attend a meeting in a speaking (rather than voting) capacity will need to comply with the conditions for remote attendance in Reg. 5(3).
Therefore, in order to exercise any rights under standing orders or otherwise to speak at the meeting, these members need to hear and be heard and, where practicable, see and be seen, by other members and members of the public who are attending the meeting.
It follows that arrangements need to be in place to ensure that the member can comply with Reg.5(3) if they have the right to speak at committee meetings of which committee they are not members.
4. Is it necessary to facilitate questions or comments from the public at meetings?
It may be. Bear in mind, however, that the meeting is "in public" and is not a "public meeting". Therefore authorities may still control who is able to speak, on what topics and for how long.
The basic statutory right exercisable by members of the public (including the press) is to attend the meeting and report on it: s.100A LGA 1972. That does not necessarily extend to a right to speak or comment at the meeting.
However, standing orders typically allow members of the public to ask questions and make statements at meetings in specified circumstances. There are obvious democratic reasons why this is important.
The Regulations clearly envisage that at least some members of the public should be able to participate in the meeting, by asking questions and making comments:
- One of the conditions for "remote attendance" in Reg. 5(3)(c) is that councillors must be able to be heard/seen by "by any members of the public entitled to attend the meeting in order to exercise a right to speak at the meeting."
- Similarly, Reg. 5(6)(c) refers to members of the public or the press being enabled "to attend or participate in [the] meeting by electronic means."
Therefore members of the public and press may need to be able to participate in the meeting – but, as with existing standard orders, that right needs to be carefully managed to avoid the meeting descending into chaos.
5. How do you deal with publicising and providing updates to committee reports after they have been published?
Publish them online.
Section 100B of the LGA 1972 recognises that changes will sometimes need to be made to committee reports. So, whilst reports for meetings of principal councils, including meetings of committees and sub-committees of principal councils, should usually be open to inspection five clear days before the meeting, if an item is added to the agenda fewer than five days beforehand, any report relating to that item need only be open to inspection from the time the item is added to the agenda.
Reg. 15 of the Regulations provides that a document will be "open to inspection" for this purpose if it is published on the Council's website. Therefore the answer is to publish updates on your website.
Other, more minor, updates might fall outside the scope of the five-day requirement in s. 100B.
Note also that officers are entitled to give "further input... orally on the day, or... in writing a little time in advance", provided this does not prevent members of the public from making informed representations, or else prevent members of the committee from making an informed decision: see R v Mendip DC, ex parte Fabre  J.P.L. 810, -.
There may also be restrictions on the late production and publication of updates to committee reports in the authority's constitution.
6. What do we need to do about recording and storing the recording of meetings?
The law does not require local authorities to (video) record their meetings; this is in contrast to the established obligations to record decisions at meetings.
Some local authorities already webcast certain types of meetings, recordings of which are available on the authority's website for a defined period of time. Given the shift to virtual meetings, it is likely that more authorities will consider recording meetings.
It will be up to each individual authority to decide how long such recordings should be stored; whether they should be made publicly available on their website and; if so, for how long. Authorities will want to consider its data protection obligations when devising policies for the recording of meetings and retention periods.
7. How do we enable legal advisers and officers to give confidential advice to committees?
This will depend on the technology that is being used to host and/or webcast the meeting.
Some platforms have built in features to support private conversations among smaller sub-groups, akin to a virtual break-out room. Where this is not the case, the authority can simply end the 'open' meeting and begin a new virtual meeting with only the relevant members and legal advisor in attendance, in order for confidential advice to be given. The 'open' meeting can be resumed thereafter.
The same practical considerations will apply if part of a meeting needs to exclude the public.
8. What obligations are there on a Council to support/enable the public to participate if they do not have the necessary equipment or knowledge?
Virtual meetings need to be "open to the public". By Reg. 13(b) of the Regulations, this requirement will be satisfied if the meeting is "accessible" through such means as "video conferencing, live webcast, and live interactive streaming".
This is a permissive provision: it suggests that the use of online technology will be acceptable even if particular members of the public cannot access them, e.g. for reasons of network coverage, or lack of equipment or knowledge.
Local authorities should try to make their virtual meetings as "user friendly" as possible, bearing in mind their obligations under the Public Sector Equality Duty to protected groups (such as elderly people who tend to have lower levels of online participation). Authorities may wish to publish information on how to access meetings online, publish recordings onto video streaming platforms and perhaps even engage community groups to share knowledge and improve rates of access.
Nonetheless the Regulations do not place a positive obligation on authorities to provide in-depth training to members of the public who are not familiar with video conferencing technology.
9. How do we ensure fairness when making regulatory decisions (especially in licensing and planning)?
The same principles of procedural fairness apply to remote meetings as to in-person meetings. Careful thought will, however, need to be given to ensuring these principles are respected in the context of new and changing circumstances.
One particular issue to look out for is whether the council's existing policies or practices give rise to legitimate expectations – for example that an objector will be notified of a planning committee meeting, or will be able to ask questions or make representations at such a meeting. If a person, or group of people, have a legitimate expectation that a particular process will be followed, then that expectation should be respected, unless the council has good reason to depart from it.
10. Do the Regulations envisage (virtual) business as usual or should we only be dealing with urgent items?
Whilst it is difficult to imagine that there can be "business as usual" in current circumstances, the Regulations do not restrict local authorities to dealing only with urgent business.
The Explanatory Memorandum recognises that authorities will need to undertake "essential and unusual functions in the face of the pandemic", but also that they will "continue the effective delivery of local services, including planning and licensing." It is important that this kind of non-urgent work does not grind to a halt.
11. How do we deal with disruption during the meeting?
Prevention is the best medicine: make sure you have carefully reviewed the meeting controls to limit the possibility of disruption to the meeting. Things to watch out for include: password protection, muting participants by default, limiting or disabling the chat, file transfer and screen share functions and admitting participants from a "waiting room".
If disruption does occur, essentially the same powers are available to the chair to exclude disruptive individuals from the meeting as would be available in an in-person meeting.
In practice, when disruption occurs, the host of the meeting will need to use the meeting controls to manage it. If the person causing the disruption will not desist, or if the disruption causes serious distress, that person will need to be removed from the meeting. Most video-conferencing providers allow meeting hosts to put all participants "on hold" immediately – temporarily disabling both video and audio – until the troublemaker can be identified and then removed from the meeting.
12. Would a Remote Meetings Protocol require an amendment to Standing Orders or does it supplement them?
The answer depends on what one means, or hopes to achieve, by a Remote Meetings Protocol.
If the protocol is simply designed to set out good practice and etiquette for remote meetings, then that will not require a change to the council's rules as such and can be adopted as a standalone document. A good example is this protocol adopted by North Kestevan District Council. This type of protocol can likely be adopted using delegated powers, although it would be advisable to obtain cross-party support in advance.
Separate considerations will apply if the protocol is in fact designed to amend the council's existing rules, for e.g. those dealing with recording votes. This can be in the form of an amendment to an existing standing order or indeed by adopting a new standing order dealing with the practicalities of remote meetings. In either case, the process of amendment will be governed by each council's constitution. Where the constitution is silent, full council approval is likely needed in order to adopt a new, or amend an existing, standing order.
13. What is the best way of excluding members of the public during closed session or members who declare interests in an item?
This will depend on the technology that is being used to host and/or webcast the meeting.
Some platforms have built in features to support private conversations among smaller sub-groups, akin to a virtual break-out room. These features can be used to exclude members of the public during closed session. Where this is not the case, the authority can simply end the 'open' meeting and begin a new virtual meeting with only the relevant members and officers in attendance, in order for confidential business to discussed. The 'open' meeting can be resumed thereafter.
As regards members who declare interests in an item, it is advisable for the members to leave the virtual meeting entirely while the relevant item is being discussed. This is to avoid any danger of even being seen to be involved in a part of the meeting from which they are "excluded". They can request to rejoin or be re-added to the meeting once the discussion has concluded and a vote has been taken.
Cornerstone Barristers remains open for business during this public health emergency.
Please contact our Clerks for more detailed enquiries and to instruct a member of our Public Law team.