1972 act for disqualification,is a webiar acceptable as an approved representation when not approved by council

Question

13 councilors have been disqualified for not having a meeting for six mths. the last meeting held it was agreed due to the covid  that all  meetings  to be canceled until further notice, but after six mths the clerk had 13 councilors disqualified   1 had a dispensation due to needing a leg operation so he couldn't be touched, the other one ( the clerk's brother-in-law) was said to have represented the council through a webinar seminar, BUT the 1972 act states an APPROVED REPRESENTATION, WERE DOES THE APPROVAL COME FROM, the clerk as been asked but will not answer, pls advice

Answer 1

The 1972 Local Government Act did not anticipate pandemics or councils meeting online. One has to look at the wording of the statute and interpret it according to reasonable assumptions about what Parliament intended. What the statute actually says is that "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 ... cease to be a member of the authority".

Now, I would be very much inclined to argue that Parliament had in mind a situation where meetings were taking place, but the member in question was absent from them. I do not think Parliament envisaged a pandemic where meetings ceased. Bearing that in mind, I would read "fails ... to attend any meeting" as requiring that there was a meeting to attend during the period of absence. As there was no meeting at all in your situation, I would argue that the disqualification does not apply.

It seems to me the clerk is interpreting the statute in an inflexible way. If all, or almost all, councillors are disqualified, then the district council has to step in and appoint councillors. But in this case, the obvious course for the district council would be to simply reappoint the same councillors. So a lot of extra administrative effort would result in achieving no real purpose.

I would recommend pressing the clerk to look at the matter again, and seek to apply a constructive interpretation of the statute so that life can proceed in a practical way.

Comments

If there was no meeting, there cannot have been a failure to attend.
Sounds like the clerk has lost the plot!

LA ought to grip the situation and reject the clerks submission

PC should fire the clerk for gross misconduct.
Lest we forget - it’s the tax payer footing the bill for this madness.

Answer 2

If your principle authority have already issued the formal notices of disqualification suspect little you can actually do other than stand again and seek re-election.  I would question the validity of the remaining Cllr through the principal authority.  I am quite surprised a 15 person council not met remotely whilst legislation allowed mind (as suggests a reasonable size parish/town area)  .

Comments

In considering absence from a meeting it is for the council not the clerk to decide whether a councillor has erred in their duty to attend.

 Of course to attend they must be summoned to a PC meeting by the clerk. It is the not responding to such a summons without sufficient reason which is the "offence" that triggers the disqualification procedure.
No summons by the clerk then no "offence" is committed.

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I cant find the guidance but I do recall some entities did not share that view.  They felt that disqualification would occur at the six month point (and as such warned councils do do something prior to it whether that be a meeting or some for of dispensation).  Clearly legislation never envisaged last 18 months though and can understand why some might feel a little aggrieved.  If the Clerks informed the principal authority of the none attendance and they have issued a notice of vancany not sure how you reverse that process (other than simply standing and filling own vacanct seat)

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The clerk is not entitled to do that. It is correct that the disqualification occurs automatically after six months. But the casual vacancy is not deemed to have occurred until the office is declared vacant by the council (LGA 1972 s 87(1)). So if most or all councillors are regarded as disqualified, making the council incapable of meeting with a quorum, the council is no longer able to function. The district council would have to step in. As I said in my answer, the logical thing for the district council to do would be to reappoint all the disqualified councillors. Although I continue to think that the statute should be read in such a way that if there has been no meeting to attend, there should be no disqualification.

Answer 3

The act says that the requirement  to attend at least one meeting of the council can be waived and the time limit extended if any failure to attend was due to a reason approved by the Authority, in advance of the six month period expiring.  If the webinar was not a meeting of the council it cannot be deemed to be one by anybody or used to avoid disqualification.  The act says t “if a member of a Local Authority fails, throughout a period of six consecutive months from the date of their last attendance, to attend any meeting of the Authority they will, unless the failure was due to some good reason approved by the Authority before the expiry of that period, cease to be a member of the Authority.” Attendance can be at any committee or sub-committee, or any joint committee, joint board or other body where the functions of the Authority are discharged or who were appointed to advise the Authority on any matter relating to the discharge of their functions.

Answer 4

If there were no meetings of the Council, it could be argued that nobody can be deemed to have been in non attendance.  If the Clerk did not organise or facilitate a meeting of any kind, it could be argued he either sought ((or through incompetence) to effect the disqualification of cllrs he is supposed to serve and render the council to be dysfunctional. This does raise another point.  What can the Clerk actually do without any Council meetings taking place and no resolutions being given?  He will have no power to spend any money other than what might be listed in standing orders.

Answer 5

Maybe we will  see more of these actions.  I see that Mareham-Le-Fen Parish Council has similar issues.