Understandably this process is proving difficult whilst authority offices are closed and members and officers are working remotely. To assist local authorities with the continuation of vital day-to-day functions of their operations, we have set out the guidance below.
There are no specific provisions in the Local Government Act 1972 which govern the use of a local authority's seal. It is the local authority’s constitution that generally governs the affixing and attestation of its seal. It is possible that an authority’s constitution may allow electronic sealing, for example by using electronic signature software services, such as ‘DocuSign’. It may be that the individual person required to fix the physical seal is to be the person responsible for carrying out an electronic sealing of a document, but subject to delegated authority in accordance with a given constitution, it may also be possible to have others undertake the process of electronically sealing documents.
Any change to the constitution to dispense with the use of the seal would usually have to be at Full Council. However most local authorities' constitutions grant their Chief Executive special urgency powers in emergency circumstances to do anything which is in the best interests of the authority. As such, Chief Executives could exercise these powers in light of the COVID-19 outbreak, to change the procedure in the constitution for executing documents that are required to be under seal. The new procedure could authorise two senior officers of the authority to sign documents either via electronic signature or in person, in the same way that companies are able to do by two directors (authorised signatories) signing on behalf of the company. There is no requirement that these signatures are made at the same place or time as one another, so each officer could sign the document working remotely and apart.
The problem comes when the document required to be under seal is a deed rather than a contract under hand. Deeds are less straightforward to execute under quarantine conditions due to the requirement of a witness. At best, there is some uncertainty over whether the witness must be physically present at the signing of the deed but the current position of the Law Commission is that a witness does have to be physically present.
It may be that, in the current circumstances, some flexibility as to who witnesses are is required (permitting witnesses to be spouses or family members). Equally, it may also potentially be sufficient to witness the execution of a deed if the entire process of signing the document is witnessed via videolink. It is suggested, however, that to avoid potential future disputes that the Law Commission’s more conservative approach of actual physical presence (at an appropriate distance and with suitable precautions) is advisable. In particular the Land Registry continues to require the execution under seal of deeds.
We are acutely aware of the difficulty and pressure put onto our local authority clients at this time. For the foreseeable future we are operating business as usual and all of our lawyers and legal support are fully equipped to work from home, and are now doing so. If any current or prospective clients would like further guidance on this topic, please contact Ruth Neave, Legal Director and Head of Public Sector Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at April 2020.