AGENDAS AND STANDING ORDERS

Question

Most references state that the Clerk as Proper Officer has responsibility for the agenda and most go onto say that they have the final say regarding all content i.e., in the event of a dispute. However most standing orders seem only refer to agenda content under Councillor generated motions and refer to the final decision right only  in this aspect of the agenda,  so everything else seems unclear i.e., assumed.

Whilst this can be troublesome, if standing orders are agreed regarding the whole subject of agenda setting do, they trump existing custom and practice?

It seems to me the Councillors should have control over what business they may wish to discuss (with the clerk overseeing its lawfulness) and with the clerk perhaps having a Clerk’s report element to include issues of their choice.

Clearly agenda setting can be   a problem  where not everybody is pulling as  a team and I am just wondering what the best way of achieving a compromise situation and  need to understand the status of standing orders in the grand scheme of things.

Or are there legal precedents regarding the powers of Proper officers? 

Answer 1

Every council must act in accordance with its standing orders, whatever they say. If the standing orders have been modified in such a way that they are unlawful, that is a separate matter that the council should address.

Answer 2

Schedule 12 part 10 of the Local Govt Act 1972 provides some pointers but is not specific.  But it does say that for an extraordinary meeting, the Councillor (s) calling it provide the agenda as below.  If councillors can define the agenda for extraordinary meetings, it would be difficult to argue they can't  for regular ones. 

"a)notice of the time and place of the intended meeting shall be fixed in some conspicuous place in the parish and, where the meeting is called by members of the council, the notice shall be signed by those members and shall specify the business proposed to be transacted at the meeting; "

But for a "regular meeting" recurring items could be defined by Standing orders, resolutions or policies.  However, the Act does not confer the right of the proper officer to decide what other items can be dicussed or not discussed.    If that right were to be denied for any reason, lawful or otherwise, 2 Councillors could simply call an extraordinary meeting to have it discussed.  That might fail if such a meeting was not quorate though.

" a summons to attend the meeting, specifying the business proposed to be transacted at the meeting and certified by the proper officer of the council, shall be sent to every member of the council by an appropriate method"

Comments

So the ultimate question is here is does the clerk have the lawful right to insist on including an item of their choice on any agenda ie do the clerk's wishes trump that of Councillors.    What is the best way forward of getting definitive answer/opinion to this very important question??

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Whilst I appreciate not all clerks are qualified, you employ a clerk to be a professional advisor to the council.  It shouldn't be a question of the clerk's wishes "trumping" that of councillors but to be effective you need to work as a team.  A clerk will suggest agenda items if those agenda items are a requirement of the job.  For example, the clerk may advise that a particular policy needs agreeing or reviewing for example.  With regard to requesting agenda items by councillors, clearly there is no point spending hours debating a topic for which there is no legal ability of the council to resolve or perhaps the topic when put to the clerk for inclusion is unclear what resolution is being sought.  Personally I hate being presented with a proposal that hasn't been worked through properly requiring that it be brought back to the council time and time again.  A thorough waste of my time.

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I absolutely agree but the fact is that sometimes life's not like that and things don't work as they should.  In such cases there must be rules, boundaries established.  Somehow someone has to make a decision.   I am simply asking does the Proper officer in the form of a clerk have the legal authority to alone determine the content of the agenda?  The answer has to be yes or no  .  If the answer is no well then that's where standing orders prevail

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The same question must be asked re motions submitted in time to the Proper Officer.   The question here must be what are criteria under which a motion can be rejected.   Surely it cannot be just at the behest of the Proper Officer?  If a question relates to the business/functions of the Council then surely  it must be accepted ?

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My view is that in the first case, i.e. the right of the clerk to determine, the answer is yes, because there is nothing in the legislation to say no and the second question is answered by your standing orders (if you use the model). "The decision of the Proper Officer as to whether or not to include the motion on the agenda shall be final" couldn't be any clearer.  Whilst this follows rules relating to clarity and impropriety, it does not state specifically that these are the only criteria by which a motion may be judged.

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But Model Standing Order 9f  used to say "Subject to standing order 9e above the decision of the Proper Officer as to whether or not to include the motion on the agenda shall be final"  NALC removed the "Subject to" in their 2020 revision supposedly introduced to facilitate working alongside Corona Virus. Was that intentional or an error on their part? In any case this would not be the case for motions that do not require written notice to be given to the proper officer or items that aren't motions.

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Graeme .  Whilst I would love for what you have said to be true the attached indicates otherwise https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.leicestershireandrutlandalc.gov.uk%2Fuploads%2Fmodel-standing-orders-2018-(england)july18-14.docx&wdOrigin=BROWSELINK
Was the "subject to" ever there ,  If not I am having a real problem with the ability of the clerk to pick and choose what motions Cllrs can submit