For decades there has been a consensus that meetings of statutory authorities in England and Wales should be held in person, at least in part so that public observation of Council meetings could be easily done and contributions sought where appropriate. There was no provision for remote meetings in either statute or other governing authority. But at the start of the COVID-19 pandemic, it rapidly became clear that alternative methods were necessary for public health reasons, and in the Coronavirus Act 2020 provision was made for regulations to allow meetings where all participants would not be in the same location. Regulations were duly made, and most local authority activities moved over to virtual meetings.

The change was welcomed by Councils, many of whom have found it to be both an easy and effective method of meeting. The regulations however lapse on 7^th Mary 2021, and sufficiently useful have they been Councils have sought by way of letters to the Secretary of State to extend this deadline. The Secretary of State refused to do so, and a judicial review claim issued to ask the High Court whether the Local Government Act 1972 would permit remote meetings in England when the regulations lapse.

The Issue has been consulted on before, in 2016 a Department for Communities and Local Government consultation acknowledged the potential benefits of allowing remote meetings, but no further action was taken until the advent of the pandemic. After the benefits were demonstrated in the early phase of the pandemic, the Government examined the issue and concluded that emergency legislation to make the changes permanent was not possible at the moment, but did issue a call for evidence on permanency, which closes on 17th June 2021.

In deciding whether to make a declaration that remote meetings were legal without further statutory provision under the 1972 Act, the Court considered, amongst other things: the pre-pandemic consensus that they were not permitted, Welsh and Scottish legislation which had to specifically allow meetings to be held remotely, the 2016 consultation, and the nature of the declaration sought by the Claimants.

For their part, Claimants suggested that the appropriate approach should be whether remote meetings satisfied the purposes for which Parliament legislated for local authority meetings, rather than whether remote meetings were considered in that legislation. They relied extensively on past authorities relating to updated communications technology, in particular the Court of Appeal judgment in Byng v London Life Association Ltd where Browne-Wilkinson LJ held that the rationale behind the requirement for meetings was more important that the use of older technologies.

Rather unusually the Secretary of State, as defendant, also supported the suggestions of the claimant, but cautioned that the court should be careful in determining its declaration so as not to suggest that any virtual meeting would necessarily constitute a valid ‘meeting’ under the 1972 Act.

The Court applied the agreed principles of statutory interpretation and rejected the updated reading of the statute proposed by the Claimants. In doing so they highlighted that the legislation seemed clearly to envisage a meeting at a real geographical location, and involved physical presence at that location. In addition, they considered whether Parliament could have considered a non-location based meeting valid, ultimately concluding that as the meetings in question were an important part of the governance of the country, it was unlikely that Parliament would have been satisfied with an updated statutory construction of the kind proposed by the claimants applying. It was important, as the meetings could have major impacts on third parties, that no new interpretations were casually adopted by the court.

In light of their considerations, the Court rejected the challenge, making it clear that they felt that any update to allow virtual meetings was a matter for Parliament, and not the Courts. Although they acknowledged the powerful arguments in favour, they also pointed out that the consultation documents demonstrate cogent arguments against it.

For consultors grappling with questions of digital versus face-to-face engagement, the case is an interesting one, and a reminder to check your statutory duties. There are broader points here too. We’ve been grappling a lot recently with how the return to normal should be managed, and how we should determine the balance between face-to-face and digital engagement. This decision contributes more weight to the idea that moving over to digital-only engagement should be avoided, and digital-first should be carefully managed.