Local Government Decision-Making During Lockdown

John Hunter reviews the difficulties of local authority decision making during the coronavirus crisis.

John Hunter

This short article is taken from a special bulletin of the Encyclopedia of Local Government Law dealing with the ramifications of CV19 due to be published this month. I am very grateful to Sweet & Maxwell for allowing it to be published here. It is intended here as an update to Jonathan Easton’s helpful 20 March post on the same topic.

The Regulations

The article was originally written immediately following the enactment of the Coronavirus Act 2020 but before any regulations were made pursuant to section 78 of that Act. The Secretary of State has now made the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panels Meetings) (England and Wales) Regulations 2020. The regulations come into force on 4th April. The key provisions (so far as relevant) are that:

 

  • References to “meeting of a local authority” in any enactment are not limited to a meeting of persons who are all present in the same place (r.5(1))
  • References to a “place” where a meeting is held include reference to more than one place including electronic, digital or virtual locations such as internet locations, web addresses or conference call telephone numbers (ibid)
  • For the purposes of any such enactment, a member of a local authority is deemed to attend the meeting if 3 conditions (which are similar to those in the 2011 Wales Measure) are all satisfied, namely:
    • The member can hear, and where practicable see, and be so heard and, where practicable, be seen by, the other members in attendance
    • The member can hear, and where practicable see, and be so heard and, where practicable, be seen by, any members of the public entitled to attend the meeting in order to exercise a right to speak at the meeting, and
    • The member is able to be so heard and, where practicable, be seen b any other members of the public attending the meeting (who, for these purposes, also include those attending by remote access) (r.5(2))
  • The abovementioned provisions apply notwithstanding any prohibition or restriction in an authority’s standing orders or other rules (r.5(5))
  • However, a local authority is free to make others rules or standing orders in relation to voting, member and public access to documents and remote access of the public and press to meetings by electronic means (r.5(6)
  • Corresponding changes are made in respect of references to “meetings” and “places” etc in related legislation such as Part VA of the 1972 Act, section 1 of the Public Bodies (Admissions to Meetings) Act 1960, section 9G of the Local Government Act 2000 and the Openness of Local Government Bodies Regulations 2014

 

In short, therefore, the central point is that the law now allows for local authorities to hold meetings remotely, and likewise for the public to be able to “attend” and participate in them remotely. It appears that the Secretary of State was alive to the potential disadvantages of requiring local authorities to amend their constitutions and/or standing orders to allow for meetings to be conducted remotely – hence the consequence of r.5(5) is that any existing provisions of this sort which are inconsistent with the holding of remote meetings are effectively disapplied automatically. The success or otherwise of the provisions will, however, depend on the practical ability of authorities to facilitate public access and participation in accordance with the (modified) statutory provisions identified above. This will no doubt present significant technological challenges for many authorities. In the meantime, therefore, it may still be necessary in many cases for decisions to be made pursuant to powers delegated to officers in the manner discussed in the main body of this article.

 

The Coronavirus Act 2020

At the time of writing, the Coronavirus Act has just become law. The most significant provisions so far as local authority governance is concerned are sections 59-60 and section 78. The former postpone the May local elections until 2021 while the latter gives the Secretary of State and the Welsh Ministers a broad power to make regulations in relation to the requirements for local authority meetings, their timing, frequency, the places at which they are to be held, the manner in which they are to be conducted, public admission and access to relevant documents. Crucially, the section also gives the government the specific power to temporarily[1] disapply or modify “any provision of an [existing] enactment or subordinate legislation”.

 

No regulations have yet been made under section 78 but in the interim the Government has urged local authorities to:

 

… take an innovative approach, using all options available to you to continue your service… [and] consider delegating committee decisions where appropriate.[2]

 

This message has been heard and heeded by local authorities whose legal officers will have spent much of the last two weeks scrutinising their constitutions to see how far business that would normally be the responsibility of a committee can be dealt with other than by in person meetings. In some cases, existing arrangements may have been considered sufficient. In others,  constitutional amendments may have been deemed necessary. Some authorities may be confident that the ways in which they propose to deliberate and make decisions during the period of lockdown are legally and constitutionally sound. Others less so. The purpose of what follows is to provide a few points of general guidance that may be of assistance or reassurance to authorities, not only while we await the publication of regulations under section 78 but also into the future, bearing in mind that, even once virtual meetings are authorised, it may still be preferable for more decisions to be delegated than were in the past.[3]

 

Section 101 Local Government Act 1972

The starting point, necessarily, is section 101(1) of the Local Government Act 1972 which gives local authorities general power to:

 

“arrange for the discharge of any of their functions… by a committee, a sub-committee or an officer of the authority”.

 

Although section 101 does not permit delegation to a single member[4], it does allow for arrangements which require officers to consult with members, or obtain their approval, before discharging whichever particular function has been delegated to them.[5] The experience of some authorities in urgently establishing such arrangements has been helpfully discussed elsewhere.[6] However, it is of cardinal importance to remember that, whilst significant weight will usually be given to the views of elected members, the discretion conferred by such arrangements must, in final analysis, be exercised by the officer to whom it is delegated, “not merely in the legal sense but on the merits”.[7]

 

Interpretation of arrangements for the discharge of functions

The courts have traditionally taken a common sense and pragmatic approach when interpreting delegations of authority, emphasising substance over form.[8] One can assume therefore that they would be particularly reluctant to find decisions and actions taken during the current emergency to be invalid due to inadequate drafting. For example, many local authority constitutions already make provision for decisions normally reserved to committees to be made by a relevant officer in between meetings in cases of urgent necessity.[9] However, there will be differences in drafting and it is unlikely that many will have been written with the sort of extreme situation we now face in mind. Nevertheless, whenever it is possible to do so, it is reasonable to expect the courts to give such provisions a sympathetic interpretation so as to enable them to be relied on to facilitate the continuation of local authority business during the crisis.

 

Limits on the power to delegate

Nevertheless, it is important to note that, although the power conferred by section 101(1) is broad, it is not unlimited – for example, in relation to matters which are the responsibility of an executive under executive arrangements and other matters which must be decided by the authority itself.[10] Accordingly, however widely a scheme of delegation is drafted, there will remain some important decisions which local authorities are unable to take until new statutory provision is made pursuant to section 78 of the 2020 Act. Moreover, particularly where statutory time-limits apply, there may be significant implications which the courts will have to unravel in the future if decisions cannot be made at this time.

 

Local Government (Wales) Measure 2011

For principal councils in Wales, however, provision has already been made by section 4 of the 2011 Measure for members to attend meetings remotely provided that there is a quorum of 30% physically present. There is also a further requirement that those members accessing the meeting remotely can be seen and heard by those physically present at the meeting, and can themselves hear and see those that are physically present.   This requirement extends to any members of the public with either a right to speak or attend the meeting.  That is, they must also be seen and heard and be able to see and hear members who join the meeting remotely. Therefore, whilst still not ideal, the Measure at least allows members at most serious risk to avoid attending in person and for greater social distancing to be observed between the minimum 30% who are required to attend in person.

 

 

 

 

 

[1] The powers only apply to meetings required to be held, or held, before 7 May 2021: s.78(3).

[2] Ministry of Housing, Communities and Local Government, Planning Update Newsletter from the Chief Planner, March 2020.

[3] S.78(4).

[4] R v Secretary of State for the Environment, ex p Hillingdon LBC [1986] 1 WLR 192. However, a limited power to delegate certain matters to a single member is conferred by s.236 of the Local Government and Public Health Act 2007, albeit only to the extent that the relevant functions are exercisable in relation to the electoral division or ward for which the member is elected and subject to a number of other significant restrictions which mean that this is unlikely to be the first port of call for authorities in the current situation.

[5] Fraser v Secretary of State for the Environment (1988) 56 P&CR 386.

[6] Keeping the Planning System Going, Jonathan Easton, Local Government Lawyer, 20 March 2020.

[7] Per Walker J in R (Selter Associates Ltd) v Leicestershire CC [2005] EWHC 2615 Admin at [8]. Cf. De Smith’s Judicial Review (8th Ed), §5.159 for a general discussion of the rule against delegation (“delegatus non potest delegare”).

[8] For example, R (Younger Homes Ltd) v Calderdale MBC [2005] Env LR 12 and R (Blow Up Media UK Ltd) v Lambeth [2009] 1 P&CR 10.

[9] For example, R v Brent Health Authority, Ex p Francis [1985] QB 869.

[10] Section 9DA of the Local Government Act 2000 and cf. the examples of statutory functions expressly reserved to authorities in §4-138 of Cross on Local Government Law.

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