The High Court recently delivered its judgment in the case of Hertfordshire County Council v Secretary of State for Housing, Communities and Local Government, finding that remote meetings of local councils could not continue after 7 May 2021. This article looks at the decision and considers its impact for future local democracy.
In England council meetings in person are required under Schedule 12 of the Local Government Act 1972 (LGA 1972) and this interpretation had not previously been challenged, although the Department of Communities and Local government published the results of a consultation in 2019 on whether to allow video conferencing for some meetings. Ultimately, subject to safeguards, it was accepted that there would be benefits from some meetings being held virtually where this would facilitate participation but these were limited to meetings of local authorities’ joint committees and combined authorities. In summary these safeguards included requirements that:
- participants had to be able to see and hear one another, and
- members of the public had to be able to see and hear the proceedings, and
- members could not participate from their own home
(summarised in paras 17 and 20 of the judgment).
To enable this, amendments were deemed necessary to the LGA 1972, but in England no appropriate legislation was introduced before the coronavirus pandemic which precipitated the Coronavirus Act 2020 (CVA 2020). Section 78 of the 2020 Act enabled the Secretary of State to make regulations that allowed Local Authority meetings to be held without all of the persons being together in the same place during any meeting held before 7 May 2021 (the Flexibility Regulations). The Explanatory Notes to the section and Regulations indicate that the legislation was introduced to minimise the work face to face meetings require when those resources could be better deployed elsewhere, to facilitate the planning and the effective delivery of local services, and increase flexibility in resource deployment. Given the speed with which the Bill was debated and enacted, “sunset” clauses were introduced to assuage the concerns of MPs and others that the CVA 2020 was being rushed through parliament and thus bypassing its effective scrutiny, with a requirement for its continuation to be approved by both Houses every six months by affirmative procedure (ss. 89, 90, 98 of the CVA 2020 – see the discussion by Molloy).
Virtual meetings were largely well received and the Lawyers in Local Government (LLG) Group and the Local Authorities Association asked whether they could be extended beyond the 7 May 2021 deadline. In his reply in November 2020 the Secretary of State indicated this would require primary legislation and his Minister of State reiterated this in March 2021, citing pressure on parliamentary time and the success of the vaccination program as reasons for not bringing such legislation forward. But the Minister also announced an initiative to gather evidence and views to inform decisions as to whether some of the arrangements could be introduced in the longer term. The aim would be to ensure effective democracy and scrutiny, and whilst it was considered that this would best be achieved by restricting the use of virtual meetings, in other circumstances, such as meetings of small subcommittees, meetings where attendees came from a large area, and those held at short notice, their use might be justified.
The LLG group and Local Government Association wrote to the Secretary of State indicating their intention to seek declarations that the existing legislation allowed the continued meeting of councils virtually and the Secretary of State supported their action. In order to succeed the claimants needed to persuade the court to change the traditional interpretation of the 1972 Act, i.e., that only face to face meetings of all the participants were allowed, an interpretation that had persisted since its enactment and into the digital age and which it had been thought would require primary legislation to change, despite the previous investigation of the use of virtual meetings and the reservations expressed at that time.
The Divisional Court expressed a concern that the requested declarations essentially amounted to judicial legislation (para 54) which would in turn require the further judicial determination of related issues, e.g., what represents attendance by members and/or access by the public, particularly those who did not possess a computer or had difficulties with accessing meetings on line (at para 55).
In coming to its decision, the court described and applied many of the conventions of statutory interpretation, paying particular attention to the passage of s. 78 of the CVA 2020 as indicating Parliament’s view that the LGA 1972 should not be regarded as allowing virtual meetings. The court discounted a suggestion the section was passed for the avoidance of doubt (i.e. that the 1972 Act could be interpreted as allowing virtual meetings and this section was confirming and reinforcing that) since the CVA 2020 did not mention this supposed pre-existing power (at para 86). Finally, where two plausible interpretations existed the long held one was to be accepted (at para 88).
It also considered a large number of cases where legislation had been reinterpreted following the introduction of new technology stretching back to Acts predating the electric telegraph. In Byng v London Life Association Ltd. and Another  Ch. 170, at 183, Sir Nicholas Browne-Wilkinson, as he then was, held that a company meeting would have been valid provided those attending in breakout rooms could hear and see the proceedings as they were relayed electronically. Although the court accepted that Byng had been followed in later cases (at para 62) they distinguished them from this situation (at para 78) because of the legal consequences for third parties of decisions by public bodies and the disputes that might arise from arguments over the validity of decisions, e.g. over whether conditions for attendance had been met by individual members and as a result whether motions in which they had voted had been passed or not, and, indeed, if any motion had validity if decided at a meeting later deemed not quorate because the member failed to meet those criteria for attendance.
Given that before the pandemic it was believed that face to face meetings open to the public were necessary to secure effective scrutiny and demonstrate transparency, it might be argued that anything that allows the executive to limit this by statutory instrument rather than primary legislation is undesirable – some of our larger councils control land areas and populations comparable to small sovereign states and, through the police and emergency services, can regulate personal freedom and activity – and its early removal should be welcomed. As discussed, sunset clauses were therefore introduced into the CVA 2020 at the insistence of parliamentarians and at the time were seen as inadequate protection against executive excess. Their existence has however removed an element of flexibility that ensured that effective local government continued during the pandemic.
Presumably in a new nation-wide epidemic a new CVA would be promptly introduced, hopefully incorporating lessons learned from the last one. Alternatively if there were sporadic outbreaks necessitating a return to a tier system, s. 45C(4)(b) of the Public Health (Control of Diseases) Act 1984 allows the Secretary of State to impose restrictions to prevent the spread of infection including holding an event or gathering like a council meeting, but without further legislation there is no mechanism for councils and their committees to meet.
In this situation if virtual meetings were not reintroduced there would be a potential democratic and administrative deficit. The prolonged suspension of the Northern Ireland assembly resulted in decisions that should have been made by ministers being made by civil servants, culminating in those actions being ruled ultra vires (Buick’s (Colin) Application (ARC21) and Buick’s (Colin) Application as Chair Person of NOARC 21). This confusion could be replicated if significant numbers of councils and their committees could not meet or if councils did not alter their constitutions to allow individual members or officers to make decisions currently made in a full meeting or in committee (s. 101 of the LGA 1972). That solution, though meeting an immediate need, would compromise open debate and decision making in the democratic forum of a council or committee meeting.
One of the arguments in favour of virtual meetings, in some circumstances, mentioned in the 2019 consultation document was that it would promote greater participation. Admittedly this outcome differs from the stated intent in the explanatory notes that s. 78 would optimize resource usage during the pandemic. Even if there is a complete return to normality there are advantages in such meetings not limited to those associated with member attendance. The Handforth parish council You-Tube video not only addressed the importance of appropriate behaviour at council meetings but advertised their existence potentially widening participation to a “media savvy” generation who may be more comfortable participating remotely than in person.
Both the Scots and Welsh legislatures had enacted laws allowing virtual attendance before the pandemic (s. 4 of the Local Government (Wales) Measure 2011 and s. 43 of the Local Government in Scotland Act 2003), the Welsh measure being more detailed and including many of the criteria listed above. These pieces of legislation were designed to strengthen local democracy and to allow local authority meetings to be conducted in any way in which each member can communicate with each other, providing a degree of flexibility that allowed councils to deal with unexpected events that the government proposals to date for England – regarding committees, subcommittees and joint authorities – are unlikely to afford. Both the Scottish and Welsh legislation is subject to the adoption and approval of the council in question, allowing them to take account of local limitations in on line skills and technological availability in their membership. And although the Divisional Court in Hertfordshire expressed concerns that people would be excluded if they lacked the necessary technology (para 54(c)) neither of the devolved provisions has been challenged in the courts or excited much adverse comment during almost a decade of usage.
The coronavirus pandemic has created phenomenal challenges for all aspects of life and as we, hopefully, emerge from the pandemic we should take the time to reflect on what went well and what did not. The Divisional Court has decided not to introduce “Judicial Legislation” and held that it is for Parliament to decide how local authority meetings are to be conducted (para 90). For its part the UK government has called for evidence from interested parties in all four countries about their experience, during the recent “natural experiment”, with virtual meetings and in the Scots and Welsh cases during more normal times before that. That experience will test the validity of the government’s concerns that on line participation would undermine visible democratic scrutiny and public debate, as stated in the 2019 consultation and discussed by the Divisional Court (at para 18). The window for responding, though extant, is narrow. A wide range of informed opinion and a prompt positive response by government, followed by open debate in Parliament, will be welcome as we seek to develop, enrich and enhance our democracy, while developing its resilience to face future unpredictable challenges.
I am grateful to Professor Michael Gordon and to Professor Alison Young for their helpful comments on earlier versions of this post.
Mark K Heatley, Trainee Solicitor, nplaw, Norfolk
(Suggested citation: M. K. Heatley, ‘The Implications of the Hertfordshire County Council Case for Local Democracy’, U.K. Const. L. Blog (2 June 2021) (available at https://ukconstitutionallaw.org/))