0370 270 6000

Public decision-taking during coronavirus restrictions

19 March 2020

Please note: the information contained in this legal update is correct as of the original date of publication

This article is taken from March's public matters newsletter. Click here to view more articles from this issue.


Public bodies will be reviewing their arrangements for public decision-taking in light of the recommended measures to facilitate social distancing and to avoid large gatherings. Members of such bodies may also fall within the categories of vulnerable people who ought to be self-isolating to protect themselves against contracting the virus.

What can organisations do to meet the guidance and to maintain functioning democratic decision-taking?

  1. Review what decisions are essential in the near future;
  2. Ensure that the report to the decision-taker is provided with the appropriate publicity and is as well-reasoned and clear as possible;
  3. Think ahead – if it is necessary to hold a meeting of the body – secure a delegation from that body to a suitable group of potential decision-takers to enable future decisions to be taken without the need for meetings in person;
  4. Review the legislative and constitutional requirements regarding the relevant decision-taking.

Taking those last two in turn:

Legislative requirements

Only local authority councillors in Wales are able to attend meetings remotely and even then at least 30% of the total attendance must be in attendance personally (Section 4 Local Government (Wales) Measure 2011). Otherwise there is no current power for remote attendance at local government meetings by councillors.

Constitutions

Most constitutions contain emergency default powers for decision-taking. These powers should be carefully reviewed. The occurrence of the pandemic is highly likely to provide a sound basis for the use of such powers for appropriate decisions.

Ensure that the senior officer or officers who have the emergency delegation powers have, themselves, delegated those powers to a suitable group of deputies and similar so that there is a sufficiently large group of potential decision-takers should one or more individuals be temporarily incapacitated.

Whilst the final decision may be delegated to a specific officer, there is no reason why the delegation may not require the officer to consult with and receive the views of members of the body prior to reaching the decision. Such views can be expressed remotely using modern technology whether by video or audio communication. The decision-taker must take his or her own independent decision, but will clearly be informed not only by the report produced but also the views of members having considered that report. The decision-taker ought to carefully record the reasons for the decision.

The existence of a quorum may be operated by agreement of the political parties to reduce the numbers needing to attend a given meeting so enabling social distancing to be observed.

Some constitutions make provision for member substitution and it may be appropriate for bodies to consider introducing such provisions to facilitate members to participate in decision-taking when other members are absent through sickness or self-isolating.

The future – possible legislative change

The LGA has recently asked the government to look again at remote access to Council meetings. The LLG and ADSO have indicated support for this proposal and have also written to the Secretary of State to request:

  • Suspension of the requirement to hold Council annual meetings
  • Waiving the requirement for a councillor to attend a meeting of their local authority at least once in any six month period
  • The delay of by-elections until the local elections in 2021.

The government’s Guidance “What the coronavirus bill will do” published on 17 March has yet to indicate any detail in relation to remote attendance at Council meetings, though the 2020 local elections are to be deferred to 2021 along with by election postponement powers. The Guidance states: “It also envisaged that changes to legislation might be necessary in order to give public bodies across the UK the tools and powers they need to carry out an effective response to this emergency.” So there is the potential for remote attendance powers (potentially using the welsh legislative model) to be introduced into the Bill. Watch this space.

These are some initial thoughts and all organisations will need to undertake a risk analysis of the decision-taking which is scheduled for the forthcoming months and we recommend that you plan ahead to seek to minimise the difficulties which may subsequently be encountered.

Receive our latest government sector news

Choose the way you want to keep up to date with our latest updates and insights. Sign up to our monthly newsletter or join the conversation with our team on LinkedIn.

Sign up to receive updates >

Follow our LinkedIn showcase page >

<>

Training and events

10Oct

Health & Care Connect 2022 with special guest Professor Sir Jonathan Van-Tam East Midlands Conference Centre, Beeston Lane, Nottingham NG7 2RJ

Our conference will connect leaders, executives and professionals from across the health and care sector to discuss the challenges, opportunities and strategies for delivering services, resilience and looking after our people in the new world.

View event

12Oct

Social Care Forum – The Future of Children’s Safeguarding and Care London office

We hope that you can join us at our next Social Care Forum taking place on Wednesday 12 October 2022 in our London Office.

View event

Coronavirus support

We are helping across business, health, education and government sectors:

Focus on...

Legal updates

Economic activity for the purposes of the Subsidy Control Act 2022

In July the long-awaited statutory guidance on the Subsidy Control Act 2022 was published in draft form. The Draft Guidance is currently subject to consultation which ends on 10 August 2022 and may therefore change before the final version is published.

View

Published articles

Rolls Royce SMR ambitions will bring Hinkley like benefits to regions

It’s great news that engineering giant Rolls-Royce has now shortlisted six possible locations for its first factory relating to small nuclear power stations. This is the first of three offsite assembly factories building key elements of the next generation small modular reactor power stations (SMRs). Construction will begin once Rolls-Royce receives the go ahead to build a fleet of SMRs in the UK.

View

Legal updates

Consultations galore! CMA and BEIS publish draft guidance and consultations on the new Subsidy Control Act

In the rapidly moving new world of subsidy control law, there’s been several major developments over the last few weeks, as Government looks to start providing more detailed assistance to public authorities in navigating the new legislative regime established by the Subsidy Control Act.

View

Legal updates

Shared Insights: The Fitness to Practise Regime

In this session, our speakers discussed the Fitness to Practise Regime and how we can help.

View

The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

Mailing list sign up

Select which mailings you would like to receive from us.

Sign up