Back to the Future for English Councils?

By Pearce Branigan

Occasions of warfare, strife and catastrophe have been reliable catalysts for societal, political and technological advancement since the dawn of humanity.

The horror of the Black Death led to the beauty of the Renaissance. The domestic experiences of the First World War propelled Universal Suffrage movements across the globe. The restrictions on interaction necessitated by the COVID-19 pandemic have brought many forms of engagement, that were as identical to practices in the 1950s or 1999, into the digital age, with remote videoconferencing enabling individuals to continue to work, socialise and govern.

These technologies are one aspect of twentieth century science fiction lore we have managed to achieve by the 2000s, in contrast to the limited progress made towards hoverboards and time-travelling/flying DeLorean’s (though credit to Nike for inventing the self-lacing sneaker, four years ahead of fiction.)

Arguably, it shouldn’t have taken the COVID-19 pandemic to lead to the now widely accepted position that talking to someone face-to-face on a screen, is no less effective than talking to them in person. Alas, necessity is the mother of invention.

The live transmission of government activities is nothing new, having been in operation in UK Parliament from 1985 in the House of Lords and 1989 in the House of Commons. Similarly, (most) local authorities across the UK have been live streaming their committee meetings for over a decade, with an intrepid few over the past few years even recording them and archiving them on a council website, or their council Youtube account.

Local authorities were permitted to hold virtual meetings from 4 April 2020, when regulations came into force under the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 (SI 2020/392), made under section 78 of the Coronavirus Act 2020.

These regulations specify that a ‘meeting’ of a local authority can lawfully take place online, with members ‘in remote attendance’ who can hear and be heard by, and if possible see and be seen by, other members.

As section 78 of the Coronavirus Act 2020 only permits regulations to apply to council meetings that take place before 7 May 2021, primary legislation would be needed to extend this.

The Government has previously faced demands from across local government to legislate to permit councils to meet virtually after that date. If a virtual meeting took place after that date but its legal status was uncertain, any decisions that it took could potentially be open to legal challenge.

On 25 March 2021, the Government wrote to all local authorities saying it was “not possible to bring forward emergency legislation on this issue at this time”. The Government’s letter suggested delegating powers to an authorities chief executive, and directed councils to the update of its guidance for the safe use of council buildings. The letter further stated that the COVID-19 roadmap allowed for indoor meetings from 17 May, suggesting that meetings could be held after this date. This coincided with the  Government launching a call for evidence on local authority remote meetings at the same time, with the consultation running until mid-June 2021.

On 7 April the Secretary of State for Housing, Communities and Local Government, the Rt Hon Robert Jenrick MP, announced that the Government supported the claim being brought, leaving the path open for virtual meetings to continue.

On Wednesday 21 April, the High Court was asked to declare that schedule 12 of the Local Government Act 1972 empowers local authorities to hold meetings remotely, regardless of the coronavirus regulations.

In papers provided to the court to support the claim, the government recognised that there was a case to be heard that the Local Government Act 1972 should be interpreted as allowing for virtual meetings, as the legislation was passed at a time when virtual meetings could not have been envisaged.

However, yesterday (Wednesday 28 April 2021) Dame Victoria Sharp and Mr Justice Chamberlain dismissed the claim, concluding that primary legislation would be needed to extend the use of online meetings.

The UK Government has indicated that there is simply no time in the legislative agenda to bring forward primary legislation to achieve this, even at a breakneck 88mph, leaving local authorities in England technologically out of step with those in Wales and Scotland.

With the State Opening of Parliament less than a fortnight away, the local government sector now waits with anticipation to see whether the Government will introduce primary legislation to bring English councils Back to the Future on 11 May. If this is absent from the legislative programme, expect them to be left screaming ‘What the flux capacitor?!’