Should the period relating to meetings being cancelled due to coronavirus (COVID-19) be disregarded from the six month period referred to in section 85 of the Local Government Act 1972?

Should the period relating to meetings being cancelled due to coronavirus (COVID-19) be disregarded from the six month period referred to in section 85 of the Local Government Act 1972?

Section 78 of the Coronavirus Act 2020 (CA 2020) facilitated postponement of elections and by elections, together with relaxation of procedural prescriptive requirements in relation to local authority meetings through the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020, SI 2020/392, which came into force on 4 April 2020.

Section 85 of the Local Government Act 1972 (LGA 1972) provides:

‘ ...if a member of a local authority fails throughout a period of six consecutive months from the date of his last attendance to attend any meeting of the authority, he shall, unless the failure was due to some reason approved by the authority before the expiry of that period, cease to be a member of the authority.’

SI 2020/392, regs 4(1)5, expressly provide that a member is considered to be ‘in remote attendance’ if all of the following conditions are met so that the member can:

• hear, be heard, see and be seen (if practical) by other members in attendance (whether remotely or not)

• hear, be heard, see and be seen (if practical) by members of the public choosing to attend the meeting (whether remotely or not)

These regulations have the effect of overriding any prohibitions on such attendance in the usual standing orders.

Government guidance issued by MHCLG on 6 April 2020 expressly says:

‘Meetings may be held remotely including via telephone conferencing, video conferencing, live webchat and live streaming. Remote attendance by members counts for other purposes such as the six month rule on attendance, and for allowances.’

Although the guidance does not specifically refer to LGA 1972, s 85, it is clear that this is the provision that the department was referring to above.

LGA 1972, s 85 is not expressly suspended by either CA 2020, s 78 or the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020, SI 2020/392. Therefore, if a member does not avail of the flexibility granted by this legislation and is not granted an express exemption on attendance provided for by LGA 1972, s 85(2),(3), the sanction of removal in LGA 1972, s 85(1) remains in force and non attendance without excuse can therefore be enforced.

For further reading, see Practice Note: Local authority meetings during the coronavirus (COVID-19) pandemic

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