LEGAL COSTS S222 V S137

Question

As a mere mortal I sometimes find legal drafting  difficult . In this case I would appreciate a considered opinion, The circumstances are that adjacent to my Parish there is a Regional airport which applied for a big extension.  The Planning Officers recommended the application be accepted  but the members rejected it and the applicant appealed .  At the inquiry a group of 26 local Parishes decided they wanted to employ their own legal team and wrote to all local  Parishes seeking contributions.  As my PC does not have the GPC I questioned whether we had the power to contribute .  The Clerk at the time recommended that S137 be used .   The applicant won his appeal.

So we start with LGA 1972 S222 which says  “they may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings, may institute them in their own name”.   Now the first bit in isolation appears to cover anything yet the second part appears to limit PCs initiating any action unless it’s in their own  name. So, in my case does the second bit override the first ?  I am assuming that it does and therefore this power could not be used to fund our contribution.

I now move onto S137 .  Firstly it uses the word “will” when referring to accruing any direct benefit and this infers a degree of certainty when in fact 40% of appeals are statistically won (and probably higher in cases of members overturning officers recommendations) . So should it have fallen at this hurdle ? But more importantly it states that S137 cannot be used to get around any limitation .  I argue the s222 statement “ in your own name” creates that limitation ?

Would be interested in opinions as to what power could be used . I believe neither

Answer 1

You've not mentioned the amount at all and I'm not an expert but my understanding of s137 is that it covers expenditure that's not permitted under any other legislative power with the caveat that it must be broadly for the benefit of the residents of the parish and is limited to a set amount per head (£8.41 in the current financial year).  I don't think the fact that a legal appeal/case might not be successful has an impact necessarily on the use of S137 in this instance as there is always some doubt as to whether any action is "broadly for the benefit of residents" but I would suggest that if there is an alternative power, that is the power that should be used first.
My own personal view is that the wording of s222 doesn't require the parish council to instigate proceedings for s222 to be used as the word "may" is used and this would imply to me that the parish council is still covered by the section if they join a class action or grouped action.

Interpretation is never crystal clear in any scenario so maybe a word to your internal auditor might help or some specialist advice from lawyers who are expert in parish council matters.

Answer 2

I think the use of "and" in s222 covers individual and joint action.

Answer 3

In my opinion the action brought by the 26 parish councils would be presented in the name of parish council 1, parish council 2, parish council 3, ... through to parish council 26; each in their own name and therefore in accordance with Section 222.

Comments

This I agree is a technical point . All references including the relevant LTN mention in your name only yet the action was under a group name.   All senior Councillors when questioned said and continue to say "Its authorised under S137 end of conversation" .  A request to seek a legal opinion from NALC has simply been ignored as the clerk has total control of all correspondence with local affiliated association.  I understand all of the issues about how PCs should operate and I believe the weak link is Cllrs themselves.  We have to find a way of improving standards/knowledge  and incentives to join.   We must have some sort of Councillors Association

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I am in complete agreement with the above statement that We must have some sort of Councillors Association in light of the growing power of the parish council clerk who is not an elected member of the council, but its employee, who should act only under the instruction of the council as a whole - ie its employer. The ALCs were supposed to be the advisory association for councillors but appear to have become apologists for council employees and indeed crediting clerks with all sorts of decision-making powers that lead one to wonder why we bother to hold council elections at all.

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Clerk's have certain prescribed duties (eg. to sign the summons) but if they have "power" then it must have been given to them by their respective council.  I also disagree that ALCs were supposed to be advisory associations for councillors.  ALCs were set up to advise councils (ie. the corporate body).

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I agree john 1706 but compare para 9 of existing NALC model SO s with these below
http://askyourcouncil.uk/model-standing-orders/list-of-model-standing-orders/#Standing-orders
https://www.okehamptonhamlets-pc.gov.uk/data/uploads/196.pdf

The "subject to" has been completely removed from Para F and Clerks are now saying they have complete power to refuse any motion even if it is lawful .  That I can assure you is happening .  I agree SOs override everything and this is what NALCs SOs now say "The decision of the Proper Officer as to whether or not to include the motion on the agenda shall be final".  When questioned directly about this and other issues NALC  they simply wont reply .  This and the issue of LTNs may only be small issues in themselves but they are causing major problems in some PC s

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Why don't you simply scrub the standing order that is causing so much grief.  There is a process to do this.

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The problem is that SOs are normally reviewed annually so therefore any earlier changes must be actioned through a motion.  That has been submitted and rejected with the clerk citing that she  has the final decision.   On a separate matter I have over the last month been arranging for a DC officer to come and give a presentation on PSPOs .  I have agreed it with the Chairman and cc the clerk in at all times . Having sorted everything out I wrote to the clerk to send a formal invite .  She has just come back and said cancel it as it must first be submitted as a motion to ask whether Councillors want they training and then arrange it.

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I see the new LGA code of conduct we are being asked to adopt states re  agendas.  The Parish Clerk, or the delegated committee Clerk, is solely responsible under statute for preparing the agendas for all meetings of the Parish Council and its committees and for circulation of them to meet statutory requirements. Additional matters for discussion may be put forward by members to the Parish Clerk who will consider whether the item should be included on the agenda or not. If it reasonably relates to the remit of the Parish Councilor Committee then there is no reason why it should not be.   Nowhere in here does it state the role of the Chairman.  I am against either the Clerk or Chairman having total control . It must be a joint effort.  Sadly it isn't working out like that with increasing numbers of Cllrs talking of a hierarchy which exists with the clerk at the top. No wonder less and less people want to be Councillors

Answer 4

Section 137 donations must bring direct benefit to all or some of your residents and that direct benefit must be commensurate with the expenditure incurred. Furthermore, your Council's total expenditure under S137 in the current year must not exceed £8.41 per head of the relevant population. This appears at odds with a decision to gamble public money on a legal battle against people with pockets deeper than yours.

If challenged, it would be interesting to see how your Council evaluates the direct benefit accruing to your residents in this case, to demonstrate that it is commensurate.

Did your Council consider asking residents to contribute directly to this action by way of a public appeal? This would be a useful barometer of public support for the action and might have avoided the need for a contribution from the public purse.

Comments

Dave I agree absolutely . Unfortunately my PC doesn't seem to consider whether they have the relevant power or not.  Their decision is final.  I have asked the clerk to seek a legal opinion form NALC but she declines to submit it .   The Clerk has now advised me that my constant challenging of her decisions is unacceptable and she is talking "harassment action".

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If you have a competent internal auditor, this might be a conversation to have before the audit is signed off. Feel free to share my response with your clerk if you feel it might be helpful.