By James Findlay QC, Ruchi Parekh and Isabella Buono
The Secretary of State for Housing, Communities and Local Government yesterday made Regulations to ensure local authorities can conduct business during the current public health emergency. The Regulations make similar provision for Police and Crime Panel meetings.
The headline points for local authorities are as follows:
- You can hold and alter the frequency and occurrence of meetings without requirement for further notice.
- You can determine not to hold your annual meeting.
- Current appointments will continue until the next annual meeting or when the local authority determines.
- Meetings, including any annual meetings, can be held remotely, including by (but not limited to) telephone conferencing, video conferencing, live webcast, and live interactive streaming.
- Requirements for public and press access to meetings and documents can also be complied through similar remote access.
- You can make standing orders in respect of remote meetings, and will not be constrained by any existing restrictions.
These provisions, in Parts 2-3, apply in England only. 'Local authority' is defined widely (reg. 3), and the Regulations apply to all meetings of the authority, whether that of full council, executive, joint committee, committee or sub-committee (see definition of 'local authority meeting' in reg. 3).
The Regulations will apply to local authority meetings held before 7 May 2021 from April 4 2020. We have highlighted three areas for consideration.
One matter authorities will need to give close attention to are the particular provisions for virtual meetings. The regulations are permissive, and use of video conferencing or interactive streaming for example will be considered acceptable even if particular members of the public cannot access them – e.g. for reasons of network coverage. However, authorities should bear in mind that whilst members need to be able to speak and hear, so do those who wish to "attend" any meeting in order to exercise a right to speak at it – see reg. 5(3)(b). Such members of the public may need to have access to a network or have access provided for them. Otherwise members of the public need only be able to hear.
The other matter that will require some thought is the power to make standing orders provided for by reg. 5(6). Glossing over for the moment the difficulties of adopting them without them being in place, they provide an opportunity for councils to set the ground rules for these new virtual meetings and provide appropriate controls to prevent abuse. Protocols for the use by members of the public and members would be invaluable.
A closely related issue will be the need to ensure all members are capable of using the means chosen by which to hold meetings. Opportunities for workshops and 1-2-1 training in person do not exist. Distance training and practice meetings before going live are also likely to be invaluable.
Access to documents
The Regulations make provision for local authority members and officers, and the public, to have access to documents without attending council buildings.
Regulations 15-17 provide that, where the Local Government Act 1972, the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 and the Openness of Local Government Bodies Regulations 2014 require that certain documents be made available for inspection by members of the public, it will be sufficient for local authorities to publish the documents on their website. This includes notices, agendas, reports, background papers and minutes – see Memorandum, para. 7.7.
The obligation under the 2012 Regulations to supply copies of such documents in response to requests made by members of the public and on behalf of newspapers is disapplied by reg. 16(6). Local authorities should nonetheless still be mindful of their obligations under the Freedom of Information Act 2000 and the Environmental Information Regulations 2004 when requests for information are made.
Finally, local authorities will need to ensure that they provide notice of their meetings when, and in the manner, required.
The requirement in England for 5 clear days' notice to be given of principal council meetings, including annual meetings, still applies, albeit that such notice can now be given on the council's website – see reg. 6(e).
More generally, Reg. 4(1) provides that a local authority can hold its meetings at such hour and on such days, and alter the frequency, move or cancel such meetings as they may determine, without requirement for further notice. The full effect of that provision is somewhat unclear.
Our provisional view is that, where notice of a meeting is required and has been given, but the meeting is subsequently cancelled, altered or moved, further notice does not need to be given in respect of that change – see the Memorandum at para. 7.2.
And lastly, note that the Government has made it clear in the Memorandum it does not intend to issue guidance although it holds open engagement with officials for authorities concerned with issues covered by the Regulations.
For further background, see the helpful Explanatory Memorandum.