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Posted By Discussion Topic: Navigation Committee - legality of remote meetings

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Paladine
Nov-13-2021 @ 3:32 PM                           Permalink
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It is proposed that meetings of the Navigation Committee continue to be held remotely, notwithstanding that the legislation permitting this procedure expired in May 2021. The Broads No-Authority has taken and (rather surprisingly) published the legal advice they have received:

Legal advice on remote meetings
38682498.V1 Broads Authority - virtual meetings advice note
077350.0007 20/08/2021 1
BROADS AUTHORITY – VIRTUAL MEETINGS ADVICE NOTE

1. BACKGROUND

1.1 From 7 May 2021 the ability to hold virtual local authority meetings ceased due to the expiry of the coronavirus regulations. In the legal challenge following this the High Court refused to apply a modern interpretation to Schedule 12 of the Local Government Act 1972 (LGA 1972), and ruled a meeting must take place at a single, specified geographical location; attending a meeting at such a location means physically going to it; and being "present" at such a meeting involves physical presence at that location. Therefore, new primary legislation is required for councils to meet and make decisions virtually. Furthermore, it was held “open to the public” or “held in public” under the LGA 1972 requires physical attendance by the public, and remote access alone does not satisfy this requirement.

1.2 Despite this, some local authorities have continued to hold virtual meetings, particularly when meetings are purely advisory and non-decision making (i.e. committees appointed under section 102(4) of the LGA 1972).

2. ADVICE NOTE

2.1 There is a strong legal consensus that purely advisory committee meetings can continue to be held virtually as they are only making recommendations, which are not required to be accepted by the council in question. However, there is currently no clear cut answer, and therefore the Broads Authority should think carefully before holding meetings virtually and look to balance the commercial risks involved as there will be a possibility of challenge.

2.2 The Standing Orders do not currently expressly provide or prohibit virtual committee meetings. However, under Standing Order 24(1) (Quorum of Committees and Sub-Committees) of the Broads Authority it states:

“Except where authorised by a statute or ordered by the Authority business must not be transacted at a meeting of any Committee unless at least one quarter of the whole number of the voting members of the Committee or four voting members (whichever is more) are present.”

2.3 As the High Court ruled being “present” involves physical attendance where the meeting is taking place. Nevertheless, it could be argued that Standing Order 24(1) is not applicable to the Navigation Committee as it does not have “voting members” since it is a consultative and advisory non-decision making committee, and therefore members do not need to be “present” for a valid meeting to take place and can attend virtually.

2.4 However, as detailed above the High Court has expressly ruled that primary legislation is required for valid virtual meetings, which depends on the passage of parliamentary legislative procedures. Consequently, it should be reiterated there is currently no absolute clarity on this matter and it remains a grey area of law.

2.5 It must also be noted that under section 100(2) of the LGA 1972 committee meetings are open to the public and the press. In addition, three clear days’ notice must be given to the public. Therefore, thought must be given by the Broads Authority to physical public attendance and public participation where it has been permitted. 2.6 Our advice therefore is that as a starting point the Broads Authority should take a risk based approach. If controversial business is to be determined at a meeting, there is a higher risk of challenge. The Broads Authority need to weigh the risk of challenge against the benefits of holding a virtual meeting for its members.

2.7 Primary legislation is anticipated to reflect the demand for virtual meetings, but until then the position remains uncertain.

Birketts LLP 2021


It is evident that Birketts only had regard to the Local Government Act 1972 (LGA 1972) when giving that advice. I suppose that’s one of the drawbacks of using lawyers from local government. There appears to have been no regard given to the Broads Acts, which post-date the LGA and which, therefore, take precedence should there be any conflicts between them.

While the legal advice may be suitable for a local authority established by the LGA, the Broads Authority is not one of those. Certain (but not all) parts of the LGA have been made to apply to the Broads Authority as if it was a local authority, but the fact remains that it is primarily governed by its own bespoke legislation, the Norfolk and Suffolk Broads Act 1988 (N&SBA)and the Broads Authority Act 2009.

While the LGA 1972 says: ...a local authority may appoint a committee of the authority”, Section 9(1) of the 1988 Act says: The Authority shall appoint a committee of the Authority to be known as the Navigation Committee.

So from the discretionary power given by the LGA, we now have the non-discretionary requirement by the 1988 Act that the Navigation Committee SHALL be appointed.

So, in my humble opinion, the comment in the advice that: 1.2 Despite this, some local authorities have continued to hold virtual meetings, particularly when meetings are purely advisory and non-decision making (i.e. committees appointed under section 102(4) of the LGA 1972) is fundamentally flawed, as the Navigation Committee is NOT appointed under the LGA, but under the N&SBA.

Even if the Authority was a full-blown local authority, the advice is that this is not clear cut, it is a grey area and the Authority should proceed cautiously, in view of the likelihood of a challenge. As the LGA doesn’t apply in this situation, being superceded by the N&SBA, I would say the certainty of a challenge!

With regard to the advice: "2.2 The Standing Orders do not currently expressly provide or prohibit virtual committee meetings. However, under Standing Order 24(1) (Quorum of Committees and Sub-Committees) of the Broads Authority it states:

“Except where authorised by a statute or ordered by the Authority business must not be transacted at a meeting of any Committee unless at least one quarter of the whole number of the voting members of the Committee or four voting members (whichever is more) are present.”

2.3 As the High Court ruled being “present” involves physical attendance where the meeting is taking place. Nevertheless, it could be argued that Standing Order 24(1) is not applicable to the Navigation Committee as it does not have “voting members” since it is a consultative and advisory non-decision making committee, and therefore members do not need to be “present” for a valid meeting to take place and can attend virtually."


In Schedule 4 of the 1988 Act, which is about the proceedings of the Navigation Committee, it says:

No business shall be transacted at any meeting of the Committee unless at least four of its members are present.

So the Standing Order quoted has absolutely no relevance, as it is the statute that requires at least four of its members to be present, and that statute does not mention 'voting members', only 'members'.

I am shocked that the legal advice appears to place more importance on Standing Orders than on national statute.



Edited for punctuation


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This message was edited by Paladine on Nov-13-21 @ 3:38 PM

Paladine
Nov-13-2021 @ 8:22 PM                           Permalink
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For anyone interested in reading the High Court judgement, it may be downloaded from this page https://www.adso.co.uk/application-to-the-high-court-in-relation-to-virtual-meeting-provision-outcome/

Been hit by another boat? Report the incident to the Marine Accident Investigation Branch’s dedicated accident reporting line on 023 8023 2527 which is monitored 24 hours a day.  Help to make the Broads safer.

JollyRodger
Nov-13-2021 @ 8:45 PM                           Permalink
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JP has repeatedly interpreted legislation to suit his personnel agenda, nothing new there then!!

Jolly Roger

annville
Nov-14-2021 @ 5:05 PM                           Permalink
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Would it not be better for all committees to meet online rather than not at all, Paladin do you no any reason why they can't vote online rather than in a committee room please, not having any experience of committees rather curious as to why not. John

L'sBelles
Nov-14-2021 @ 5:37 PM                           Permalink
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Methinks like many things to do with local government (in fact why stop at local?) the legislation is an anachronism of the highest order.
Even the BNA rules and regulations are from the late 1980's and they appear to have used the LGA of 1972 as a template.
Where was the internet then never mind PC's offering video conferencing to the masses?

I agree with John on this point, whilst remote meetings may not strictly adhere to the legislation as written, common sense and experience of publically accessible meetings during various Covid lockdowns dicatate that there is no real reason to prohibit virtual committee meetings any longer.

I recently attended a week long training course that was entirely held online with one tutor and twelve students where everyone could interact in real time with everyone else. Following the course I had to sit a fully invigilated examination in order to become accredited which was also carried out remotely using a specially designed platform that recorded my screen and key presses whilst a video camera watched and listened to what I was doing throught the examination time.
Where was that technology in 1972 or 1988 for that matter?

In many ways governance of this country is being held back due to employing traditional ways and means purely because that is exactly what it is, tradition!

JollyRodger
Nov-14-2021 @ 6:36 PM                           Permalink
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Voting online, could we really trust the result? The Authority is already widely distrusted along the rond.


.

Jolly Roger

L'sBelles
Nov-14-2021 @ 10:40 PM                           Permalink
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What's the difference? Unless you actually attend the meeting you only have their word for it anyway.



This message was edited by L'sBelles on Nov-14-21 @ 10:42 PM

JollyRodger
Nov-15-2021 @ 10:26 AM                           Permalink
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In the past various Authority members took to recording meetings because they felt sure that the minutes, for example, didn't tally with what they remembered as having been said. Either that or that the minutes had been 'doctored' which might have skewed the meaning of comments or the result of a vote. Having attended Authority meetings in the past I can quite understand their concerns. Allegedly comments were sometimes made at the now-defunct Broads Forum and when subsequently reported at full Authority meetings they were often misquoted in order to add weight to an officer's report. I'm afraid that cherry-picking is a much-used tactic.

Jolly Roger

This message was edited by JollyRodger on Nov-15-21 @ 10:29 AM

L'sBelles
Nov-15-2021 @ 10:51 AM                           Permalink
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As I say what is the difference?
If you use a platform like Microsoft Teams or Zoom, to name just two options, every participant can easily record the entire meeting and have a record of events to compare with the "official" minutes.
If many individuals have recordings it is even more difficult to pull the wool over eyes!

Companies are embracing technology because they need to be run efficiently and profitably in order to survive but it appears that the government and civil service prefer to plod along with their heads down in the sand guided by legislation produced half a century ago. Is it any wonder they are considered out of touch with reality?

JollyRodger
Nov-15-2021 @ 12:39 PM                           Permalink
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L'sBelles, entirely right.

As far as official recordings are concerned, a very reluctant CEO had it forced upon him by dissident Authority members. Amusingly he expressed surprise that anyone should doubt the veracity of the written minutes!

Seemingly the system is distrusted by many stakeholders along the rhond, surprise, surprise!

Jolly Roger

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