The right of attendance LA meetings in s 100A of the LGA 1972 is (subsection (8)) “without prejudice to any power of exclusion to suppress or prevent disorderly conduct or other misbehaviour at a meeting.”
Can LAs exclude the public because of the threat of passing on the coronavirus? The right of attendance is an important part of local democracy, but I think the answer is probably yes.
The caselaw largely involves scuffles, protests (actual or threatened), and overcrowding. But note the following in Lucas v Mason (1875) LR 10 Ex 251 (obiter, emphasis added):-
“It is no doubt the duty of the chairman of a meeting, where a large body of people are gathered together, to do his best to preserve order, and it is equally the duty of those who are acting as stewards or managers to assist him in so doing, but the nature and extent of this duty on both sides cannot be very closely defined a priori, and must necessarily arise out of, and in character and extent depend upon, the events and emergencies which may from time to time arise.”
In Doyle v Falconer (1866) LR 1 PC 328, the Privy Council referred obiter to the “right to remove for self-security”.
These are old cases but they have been referred to in modern authority: R v Brent HA, ex parte Francis [1985] QB 869 and Laporte v Metropolitan Commissioner [2014] EWHC 3574 (QB).
My own view is that, given the Government’s policy of suppression of the disease through self-isolation and social distancing, a Court would probably decide that, as things stand, the threat of passing on the disease by attendance fell within the scope of s 100A(8), at least if the LA had made it clear that attendance was not allowed because of the pandemic.
That said, it would be good to get some guidance from MHCLG. There is a deluge of guidance from the Government on COVID-19, growing by the hour, but I don’t think there is any guidance on this issue yet.
LAs excluding on this basis should ideally show that they have taken countervailing factors (e.g. Art 10) into account, and put in place measures to allow publicity through other means.
Peter Oldham QC