Mon, 30 Mar 2020
A SHORT SUMMARY FOR LOCKDOWN WEEK 2
PURPOSE
This note attempts to:
- Highlight the amendment to the law to enable council meetings to take place remotely;
- Look at the work of the Planning Inspectorate in determining planning appeals;
- Compare the position of the Inspectorate with other administrative and like tribunals;
- Draw attention to the rapid progress in some court jurisdictions.
The question is, overall, has the system shut down, or is remote working about to take over?
This note mirrors a similar note on courts and tribunals of the same date.
A FORTNIGHT OF RAPID CHANGE
Prior to the lockdown, events were already moving very swiftly. On 16th March the Prime Minister announced that “now is the time for everyone to stop non-essential contact with others and to stop all unnecessary travel. We need people to start working from home where they possibly can. And you should avoid pubs, clubs, theatres and other such social venues.”
The Planning Inspectorate (PINS) issued guidance on 17 March[1],[2]. Hearings and inquiries were postponed. PINS indicated that it was considering electronic solutions.
On 18th March the Prime Minister announced that schools would close on Friday 20th March.
On 19th March 2020 the Lord Chief Justice posted a message on the Courts and Tribunals Judiciary website in which he addressed the tension between the obligation to continue a vital public service with the challenges of “new ways of working forced on us the biggest public health emergency the world has faced for a century.”[3]
By Monday 23rd March we reached the start of ‘Lockdown Week 1” when the Prime Minister converted his request for social distancing to an instruction: “From this evening I must give the British people a very simple instruction - you must stay at home.[4]”
On Wednesday 25th March, the Coronavirus Act 2020 received Royal Assent. PINS updates its guidance to cancel all events and site visits[5] and says:
“We are considering whether it might be feasible to utilise technological solutions to enable events to proceed whilst ensuring fairness for all parties, especially third parties, given that these are public events. In some cases, the Inspector might invite the parties to consider whether the case can be decided on the basis of written submissions following questions that she or he might raise.”
ENTERING LOCKDOWN WEEK 2, WHAT IS THE POSITION?
Remembering that we are only looking at the events of one week of lockdown and two weeks of social distancing, the key points include:
Local Authorities
- S78(1) of the 2020 Act enables the making of regulations relating to:
(a) requirements to hold local authority meetings;
(b) the times at or by which, periods within which, or frequency with which, local authority meetings are to be held;
(c) the places at which local authority meetings are to be held;
(d) the manner in which persons may attend, speak at, vote in, or otherwise participate in, local authority meetings;
(e) public admission and access to local authority meetings;
(f) the places at which, and manner in which, documents relating to local authority meetings are to be open to inspection by, or otherwise available to, members of the public.
(2)The provision which may be made by virtue of subsection (1)(d) includes in particular provision for persons to attend, speak at, vote in, or otherwise participate in, local authority meetings without all of the persons, or without any of the persons, being together in the same place.
- The provisions in s78(1) have not, as of 27 March, been brought into effect via a statutory instrument. Hence, local authorities would be required to meet in one place to undertake committee business;
- Regulations made under the Public Health (Control of Disease) Act 1984 prevent gatherings of more than two people in one place, except[6]:
(a) where all the persons in the gathering are members of the same household,
(b) where the gathering is essential for work purposes,
(c) to attend a funeral,
(d)where reasonably necessary—
(i)to facilitate a house move,
(ii)to provide care or assistance to a vulnerable person, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006,
(iii) to provide emergency assistance, or
(iv) to participate in legal proceedings or fulfil a legal obligation.
- So, for a local authority committee to meet, the gathering would either have to be essential for work purposes, or would need to be reasonably necessary to participate in legal proceedings or fulfil a legal obligation. Both of those options appear potentially relevant, but each would need careful consideration on the particular facts. There is helpful further discussion via Simon Ricketts excellent blog.
Planning Appeals and Other Tribunals
- Planning appeals by way of inquiry, hearing or by written representations are postponed;
- The same position is to be found in respect of the Employment Appeal Tribunal (EAT) – see its directions for a general stay. It has adjourned all of its cases and will make a further announcement before 10 April 2020[7];
- A similar position is found in respect of Parole Board, as explained by Philip Rule, Ian Brownhill et al. It has cancelled all of its face-to-face hearings[8].
PROGNOSIS
So far as local authority plan-making and decision-making are concerned, there is bound to be a degree of delay – effective powers for remote local authority meetings do not presently exist. In addition, there is clearly a level of disruption associated with both the lockdown and the tragic circumstances presently being faced. There is, however, a general sense of the importance of a proactive approach. The Chief Planner captured this in his letter, emphasising the need to continue to function and support local economies.
In my note on what is happening in the courts, I said this:
“The courts, and in particular the Family Courts have reacted quickly, decisively and effectively to the pandemic. In both the civil courts and in the Family Courts, the general message is that the work of the court continues under a new protocol which will itself be kept under review. The Court has adopted existing technology to meet its needs and has already successfully completed complex hearings with favourable outcomes in terms of participation by parties, public and press. There is a terrifically helpful, detailed and practical paper by MacDonald J which addresses the use of ‘off the shelf’ remote communications platforms in family proceedings[9]. It is a long read, and all the better for it. It relates the positive outcomes of a number of remote hearings in various jurisdictions, including in Australia. There is much to be learnt from it, whatever your area of practice. The upshot is: “The reality is that for the foreseeable future remote hearings will become the norm and they must become the norm immediately.”
The requirements of fairness, public participation and transparency are not identical as between one court and another or as between a court and a quasi-judicial decision-maker like a Planning Inspector. There are some fairly easily identifiable differences. For example, it is most unlikely that many members of the public would wish to attend public family law proceedings even though they may have a right to do so. Moreover, the exclusion of the public would have a different impact in each case.
To look at how planning appeals might be directed, one can look to the Contingency Arrangements in the First-Tier Tribunal and Upper Tribunal, in particular:
- In so far as practicable, a judge will take into consideration any reasonable representations made in reasonable time before a hearing by those who may not be able to use a particular form of technology for the purposes of a remote hearing.
- It is inevitable that undertaking remote hearings instead of face to face hearings will cause teething problems. All parties are urged to be sympathetic to the technological and other difficulties experienced by others. All parties, and everyone using the Chamber's administrative services, will need to show flexibility.
- Case management directions made by judges in individual cases will continue to stipulate fixed time limits for steps in an appeal to take place. Any requests for extensions of time based on the effect of the current pandemic will be considered sympathetically.
This is highly pragmatic, approaching the situation on a ‘can do’ basis, but having regard to the reality of the logistical difficulties: do what is practicable, show flexibility, work together and speak up if extra time is needed.
How does the hearing work in practice? To see how that might unfold, the Family Courts show a path through the lockdown:
- It will not be possible to provide an instant bespoke IT solution;
- But that does not matter because ‘off the shelf’ software platforms can be used in the interim in all cases – a smorgasboard of platforms will be needed: Zoom; Skype for Business; Microsoft Teams; Lifesize;
- This has been tested successfully in cases of the utmost gravity and complexity, with positive feedback from the press who were able to attend the hearing remotely;
- So the objective to ‘Keep Business Going Safely’ can and is being met;
- But, major challenges remain, such as lack of access to buildings in which administrative functions are normally undertaken, and;
- Transparency of remote hearings is vital, to be assisted by good practice in notification, and;
- Electronic bundles/core documents are essential, and so is related software, and;
- It cannot be assumed that the correct software is actually available to the judge/Inspector and the parties, for example if it is necessary to run the software via Chrome which may or may not be installed;
- Guidance will be needed – including (per McDonald J) “Press Here Stupid” guidance.
The courts have moved quickly. Other bodies such as the Planning Inspectorate, the Employment Tribunal and the Parole Board are working through the issues which particularly affect them.
Looking to the planning inquiry or hearing, and to take a term that we are familiar with – this is deliverable. The material is available now, will provide a suitable ‘location’ and there is good evidence of a realistic prospect of holding an inquiry or hearing to the established standards. But the challenges remain to: (1) address electronic documentation and its availability to both the parties and the public; (2) create a clear protocol for public participation in the ‘event’.
However, it is also plain that video broadcast of proceedings has the potential to actually increase public participation to a level which is higher, more accessible and consistent with the normal daily lives of interested persons than attendance at a physical venue.
CONCLUSION
It does not take much research to find good examples of remote hearings now taking place in Melbourne in Australia, Malindi in Kenya, and up and down England and Wales in the civil and Family Courts. It therefore seems inevitable that other bodies of the type I refer to will shortly adopt remote hearings by telephone and by video. Indeed, in respect of some areas such as planning, I would go further and say that, when those measures are adopted, their value will be appreciated and will be integrated into our future operations, having a substantial impact on paper-working and efficiency generally.
[1]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/875544/COVID-19_Guidance_for_site_visits_hearings_and_inquiries_v3_24_March_2020.pdf
[2] https://www.youtube.com/watch?v=oASMONIcMFA
[3] https://www.judiciary.uk/announcements/coronavirus-covid-19-message-from-the-lord-chief-justice-to-judges-in-the-civil-and-family-courts/
[4] https://www.gov.uk/government/speeches/pm-address-to-the-nation-on-coronavirus-23-march-2020
[5] https://www.gov.uk/guidance/coronavirus-covid-19-planning-inspectorate-guidance
[6] Regulation 7 The Health Protection (Coronavirus, Restrictions)(England) Regulations 2020
[7] https://www.judiciary.uk/wp-content/uploads/2020/03/EAT-Covid-19-Announcement-25.3.20.pdf
[8] https://www.gov.uk/government/publications/immediate-cancellation-of-all-face-to-face-hearings
[9] https://www.judiciary.uk/wp-content/uploads/2020/03/The-Remote-Access-Family-Court.pdf
