This includes how local authorities continue to operate and take important decisions in circumstances where elected members are not able to be physically present.
Section 78 of the Coronavirus Act 2020 (the 2020 Act) provided that regulations could be made relating to the meetings of public bodies, such as local authorities. The list of public bodies to whom the Regulations apply is set out in Regulation 3 and as well as local authorities, also includes fire and rescue authorities and combined authorities. We have used the term 'public bodies' to encompass all these bodies to whom the Regulations apply.
Section 78 said that the Regulations could address the timing and frequency of meetings, the place at which meetings must be held and the way in which people could attend, speak and vote. The Regulations could also make provision relating to public admission and access to meetings and the availability of meeting documents.
The government has now laid the Regulations which are due to come into force on 4 April: The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panels)(England and Wales) Regulations 2020 ('the Regulations').
This note sets out some of the key points arising from the Regulations, but also considers some of the questions that have already been asked and are likely to arise in terms of their implementation.
Put at their most simple level, the effect of the Regulations is to provide the maximum degree of flexibility to public bodies as to how they organise their meetings going forwards. In particular, such bodies are now able to determine whether to not hold their AGMs, where meetings are held, flexibility to call them at any time and on any day, to alter the frequency of meetings and to move all meetings without requiring further notice. This allows a public body finding itself desperately short of staff at short notice and needing to redeploy those they do have to cancel meetings at no notice. The Government recognises that the reallocation of scarce resources at this time might need to be taken with no notice, and in saving life and limb, the priority will be given to that, rather than a meeting.
The Regulations are divided into four parts.
The Regulations apply to meetings that are required to be held, or that are held, before 7 May 2021. The date could be brought forward if the government rules are relaxed, but equally could be extended by further regulations should that be necessary.
In terms of the AGM, public bodies are no longer required to hold them. Therefore current appointments continue until the next AGM or when the public body so determines. Note that as public bodies can now hold all meetings flexibly, if it chooses to hold a meeting and change appointments, it can then do so virtually.
All meetings may be held flexibly, including as already mentioned AGMs but also executive meetings and committee meetings.
Members will be considered as attending a meeting if they can hear and where practicable see the meeting (it may be useful to record it where, for example a system is set up to provide audio visual or there are technical issues around the visual element of this and where practical should be seen by other members and the public).
In practice, this allows for meetings to be held by remote means, including via telephone conferencing, video conferencing, live webchat and live streaming.
It should be noted that the ADSO (Association of Democratic Services Officers) has posted guidance from MHCLG's digital team via the London Office of Technology and Innovation on how virtual meetings may be held:
The arrangements laid out within the Regulations have been drafted in such a way as to be future proof and give maximum flexibility. For example, the LGA 1972 has always been interpreted to have required that meetings must be in person and where attendees are in the same physical 'place'.
The Regulations state that such 'place' may now be understood to include 'electronic, digital or virtual locations such as internet locations, web addresses or conference call telephone numbers.
However, the Regulations allow that approach to change/have the maximum flexibility. That is to say that the references to where those taking part in meetings are by way of 'place' is designed to give flexibility to continue to allow physical meetings when we are either out of or partially out of lockdown.
Public bodies have the ability to go into virtual meetings arrangements, come out of those wholly or partially and then go back if they need to. It does not mean that, for example, one member (or one officer) has to be in the Council's normal place of business or equivalent.
The Regulations are rightly drafted, in these circumstances, to provide the breadth of flexibility to enable public bodies to adopt a fully remote meeting arrangement, to vary that, and then vary that again if circumstances demand.
'The place' at which the meeting is held may be a Council building, location of the meeting organiser, an electronic, digital or virtual location, a web address or a conference call telephone number. It is this maximum of flexibility which is the constant thread throughout the Regulations which at first blush can cause concerns. Practitioners will be used to dealing with regulations that tend to be highly prescriptive, but these by their very nature are not and indeed cannot be - and we should welcome that flexibility because at this time, that it is vital.
It should be noted that the Regulations require that documents are open to inspection, and this will not doubt be achieved by using the public body's website to its full. Documents will include agendas, reports, background papers and minutes.
Questions have been asked about how School Appeal Panels will proceed. Many Councils have quite understandably cancelled or temporarily suspended hearings. It is understood that the Department for Education will advise - whether this appears in the form of regulations or otherwise, we do not yet know how education appeals are to be administered in this unprecedented time.
The Regulations also make it clear that they are time limited and apply in relation only to meetings taking place before 7 May 2021. It would be possible with further amending secondary legislation to bring forward this date or defer it, if social distancing rules are relaxed or removed on the basis of medical and scientific advice. For reasons already stated, the drafting of the Regulations is set so that it will enable authorities to make remote meeting arrangements and then vary them depending upon changing circumstances and then change them again if necessary. It therefore remains to be seen how long these provisions will last.
Queries have also been raised about how, given the nature of the arrangements proposed, matters may change politically as time moves on.
Given that under these Regulations, public bodies are no longer required to hold AGMs, current appointments continue until the next AGM or when the public body determines. This provides in the absence of an annual meeting continuity of membership. However, it is clear that councillors can still resign, and indeed under the provisions of the Local Government Act 1972, members who fail to attend meetings for period of six months are disqualified.
The government has previously announced that they will introduce regulations dealing with elections and The Local Government and Police and Crime Commissioner (Coronavirus) (Postponement of Elections and Referendums) (England and Wales) Regulations 2020 were made on 3 April and come into force on 7 April.
These Regulations provide that specified local elections and referendums scheduled to take place after 15 March 2020, or that would otherwise be required before 5 May 2021, are postponed until 6 May 2021. Like the virtual meeting regulations, this date could be brought forward if Government rules are relaxed, but equally could be extended by further regulations should that be necessary
The specified local elections are those to fill casual vacancies in Councils in England, directly elected Mayoral casual vacancies also in England and in England and Wales, PCCs. The referendums are local advisory polls, those relating to local authority governance changes and neighbourhood planning.
We will provide a briefing note shortly analysing their effect as well as dealing with the cross-over between the two sets of regulations.
However, the consequences of them means that it is possible that councillors may resign from, for example, a local authority or be disqualified for non-attendance at meetings during the course of the year, and those seats will remain vacant. It remains to be seen whether Section 15, Local Government and Housing Act 1989 (Duty to Allocate Seats to Political Groups) will come into play at this time, given that the duty to allocate / review arises only in limited circumstances, albeit that one of them is at such other times as prescribed be regulations made by the Secretary of State. This is an issue currently pending with MHCLG having been raised during the drafting of the two sets of regulations.
Issue has also been raised in terms of the 'misuse' of the revised arrangements for political purposes. At the risk of being obvious, the pandemic is the driver of these changes. Events are unprecedented. Any council found using the flexibility for political purposes would rightly be the subject of adverse criticism. Legally, such an action would be a matter for the Monitoring Officer. It is a well-established principle of the law that a public body must act for a proper purpose. Those making public decisions must not have ulterior motives and must apply their minds when making decisions to the correct statutory objective (Padfield v Minister of Agriculture, Fisheries & Food  AC 997 ). A public body must not act in bad faith, which is akin to dishonesty (Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223 (at 229)). Use of these flexibilities put in place to address genuine issues at a time of national crisis for party political advantage would be unlawful - see Magill v Porter  UKHL 67.