Flexible decision making - virtual committee meetings to become a reality

Introduction – new regulations

The draft version of the Local Authorities (Coronavirus) (Flexibility of Local Authority Meetings) (England) Regulations 2020 has now been published.

Once finalised, the regulations are likely to come into force at some point during week commencing 6 April 2020.

It is understood that the regulations will apply to local authority meetings in England only (despite reference also being made to the regulations extending to Wales in the draft regulations).

The Regulations will apply to local authority meetings held on or before 7 May 2021.

What is the purpose of the regulations?

The draft regulations provide the detailed statutory framework for conduct of local authority meetings during coronavirus lockdown and supplement the broad range of measures outlined in Section 78 of the Coronavirus Act 2020.

In short, the act and the regulations now make the necessary changes to Schedule 12 of the Local Government Act 1972 to ensure that lawful decision making can be achieved by way of virtual committee meetings held on-line.

Schedule 12 has been an obstacle to a lawful decision-making process for a number of reasons. These include paragraph 39 of Schedule 12 which requires all questions arising at a meeting to be:

“.. decided, by a majority of members (of the committee), present and voting thereon..” (emphasis added)

Any concerns over whether an online presence was adequate to make a decision which satisfies paragraph 39 have been addressed by the draft regulations. These now explicitly allow decisions to be made in this way. That is of course subject to a numbers of caveats to ensure that procedural fairness is at the heart of decision making. This includes a mandatory requirement to facilitate access to meetings by the press and public engagement and participation in any decision-making process which takes place on-line.

Other powers provided by the regulations include the ability for local authorities to change the number and frequency of meetings held.

Discussion

These regulations will be welcomed by local authorities.

However, the practical implications of on-line decision making will remain a challenge for them; not least the strain on local government computer systems that arise from a need for a pure on-line presence.

Additional member training and changes to standing orders and delegated powers to adapt to different ways of securing compliance with access to information legislation and meeting and voting arrangements will be important elements here. As is finding new and innovative ways to replace the need for site visits in cases where planning applications are being considered.

With regard to the determination of planning applications, these practical hurdles may need to be overcome by a wider use of delegated powers; so as to reduce the number of applications having to be dealt with by a planning committee. Local authorities need to act with caution here, however, so as to avoid or minimise risk of legal challenge on procedural fairness grounds.

Other changes we may see as a consequence of these regulations, is a reduction in the current number of members of a committee attending and voting on-line so as to accommodate a more efficient and effective way of working.

Also expect a greater use of executive summaries in supporting documents and committee reports which ensure that the main arguments for and against any recommendation are clear, transparent and easily accessible on-line.

Critically, public perception of a fair and transparent decision-making process is key here and local authorities will need strike the right balance between the flexibility offered by the regulations and a lawfully robust decision-making process.

Finally, it should be noted that this legislation also applies to parish council’s and other specified public sector decision-making bodies. It is important that these bodies adapt quickly to this new decision- making process. That is crucial where they are required to respond as consultees on applications made to a local authority and need to convene their own virtual meetings to adopt any necessary resolutions.