AGENDA SETTING

Question

As some of our readers will be aware NALC at its last re-write of its model standing orders removed a couple of words viz "subject to" (in para 9) which completely transformed its meaning.   Prior to 2018 the SOs explained that any Councillor could put forward a motion to the clerk for consideration and that the clerk's role was to examine it for legal correctness , proper wording etc.  The SOs went on to say that the clerk could refuse a motion but only for the reasons of "legally  correct etc" ie the words "subject to" were included in the relevant paragraph.    However, in the latest guidelines the relevant paragraph now reads  The decision of the Proper Officer as to whether or not to include the motion on the agenda shall be final.   This is now widely interpreted as meaning that the clerk can refuse any motion they so choose even it is about the lawful business of the meeting 

This all powerful status is now confirmed in para 22 of LTN5e which  states "A councillor is entitled to submit a motion for the agenda which is relevant to the forthcoming meeting". If there is a dispute as to the items to be included in the agenda, the final decision should be made by the clerk, having first consulted the Chair of the forthcoming meeting"

This situation now means that a powerful Chairman can now work with their clerk to censure any discussion that they do not want or allows an officious  clerk to have their own way.     While I am sure there are many good clerks out there who will say "well that will never happen" .  Unfortunately I can attest that it does and in some Councils it is a festering sore.  Enquiries of my "local NALC" are met with a "we will only deal with member  Councils through the clerk" response whereas NALC HQ simply wont reply.   However, LTN5E also states "Pages 157-164 of ‘Local Councils Explained’ provide practical advice on the councillors’ submission of the motions and the clerk or other appropriate officer’s role in receiving them and preparing the agenda to be sent out". 

I cant seem to get a copy of this .  Can anyone advise what it says please?.  There must be definitive advice on this matter.

Answer 1

NALCs rationale behind the change of wording is, I believe, on the grounds that the agenda is signed by the Proper Officer and therefore the Proper Officer is legally responsible for the agenda contents.  When I was a clerk I rarely rejected a request for an agenda item but did draw the line at wasting councillors time on items that were outside of the remit of a parish council to consider or take action on, lacked sufficient information to be clear what was being required (in which case the item would be resubmitted in a clearer format, possibly for a later meeting) or had been received too late for inclusion on the agenda once published.  Now I'm a councillor I still support that view as I don't want to be wasting my time on fruitless discussions on matters which are of no relevance.
There is, of course, a way around this.  Your standing orders should set out the procedure to be followed to convene an extraordinary meeting.  If you request a meeting for a specific item and your chair refused to convene the meeting, then assuming you have the relevant support form your fellow councillors, you can convene the meeting provided you give the appropriate notice etc. etc.

Comments

I agree absolutely with your sentiments Delboy's wife but not sure about on the "grounds that the agenda is signed by the Proper Officer and therefore the Proper Officer is legally responsible for the agenda contents".  The sceptics will say that its all part of NALCs plan to assert its authority on how they think PCs should be run.  I have absolutely no doubt that this scenario can be (and is) abused.   Sadly , that abuse often attracts Councillors who don't do anything proactive and simply attend meetings say little and vote yes to everything .  I don't know what the answer is but if your hypostasis prevails I fear those who like me seek change will simply drift away and give up.   I don't of course say I am always right but to denied even the debate is contrary to any openness and transparency philosophy . Perhaps Dave the Clerk would state what his transfer fee is?

Answer 2

Could you tell me what LTN5e is please?

Comments

LTN 5E | PARISH COUNCIL MEETINGS [ENGLAND]   Is a Legal Topic Note issued by NALC which should be available to all NALC members via their affiliated association.  If you want a copy please PM me your E mail address.  It is ironic that this issue is a symptom of the topic of this thread.  Our clerk refuses to allow Cllrs access to them , so I write to the Staffing Committee of which the various Committee Chairman are members   and guess what they refuse/decline  to reply

Answer 3

It has to be remembered that NALC can only advise. There is no obligation to follow its advice. Nor is it necessary to adopt the NALC standing orders. I find it hard to believe that the purpose of the statutes is to give the clerk the final say on what can be on the agenda of a council meeting.

It is unlikely there will be a definitive ruling on this any time soon. One could seek counsel's opinion, but that would be a significant expense. Or, to get a really decisive answer, one could challenge a clerk's decision in the High Court, but that would be very expensive indeed. Hence neither is very likely.

Hence, I would favour retaining the old standing orders, which (along with the limitation on raising the same item within six months) seem quite adequate to exclude frivolous items. If that fails, it is a simple matter for the chair to introduce the item with a request for a vote to move to the next item.

The way round the problem offered by Delboy's Wife is legitimate and effective, but rather cumbersome. But maybe an intransigent clerk would back down when faced with this alternative.

Comments

It has to be remembered that indolence on the part of councillors enables many of the ills facing PC's these days. The modern culture of "it is always someone else's responsibility" is usually an irresistible force to many. This makes many wide open to passing the responsibility they sign up for to someone else ( the clerk or other councillors). Power is a driving force many seek and if you do not control the power you hold as councillors then it will very quickly pass to others who will wield it ultimately seeking to remove it from your control. I have long stated on here and other places that NALC( and their local offices) has a well concerted programme of removing that power from the elected to those they train( indoctrinate) and encourage to ensure their aims are enforced.
As pointed out NALC and Clerks are there as advisors to the councils NOT to rule them or make decisions- Do not let that power slip from your councils grasp because once lost it will be lost forever .

Councillors are not elected for an easy life they are there to serve the will and good of their communities NOT unelected advisory groups hired by them. Do not let the tail wag the dog!

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Excellent summation!

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Really.  I think the comment that "NALC ( and their local offices) has a well concerted programme of removing that power ... " etc etc is nonsense.

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I agree John1706.  I despair sometimes of the comments made with reference to NALC and their role.  Their advice is based upon the legislation that governs what town and parish councils can and can't do and how they must do it.  Legislation isn't negotiable but is sometimes clarified by the courts but again the results of the precedents set aren't negotiable.  The advisory role that NALC fulfils is a summary of that sometimes complex combination.

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Hence my question Delboys wife i.e. what legislation states that the clerk has the right to reject a legitimate motion submitted on time about the business of the Council.  I understood the only legally needed bits in SOs were in emboldened text, thereby indicating that the rest is NALC's interpretation

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I agree that it would be difficult to prove what NALC's motives are or whether there is a grand plan but what can be seen first hand is how "its representative" viz the clerk, acts and interprets their advice .    Those actions often ignore what their role ie to support and advise .  Sometimes the approach is dictatorial and that can rile some Councillors

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The issue isn't that the legislation is negotiable, it is that NALC does not have a monopoly on deciding how it should be interpreted. As Richmondlad has indicated, the legislation does not spell out the answer to how motions should  be accepted. There are many questions to which the legislation does not give a clear and unambiguous answer. Some such questions have been answered by the courts, when a particular interpretation has been implemented but has been challenged in court. There is then a clear answer to that particular question (at least in those particular circumstances). But this is one of the questions that remains uncertain. Some people do feel that in uncertain territory, NALC is inclined towards bureaucratic choices that can be seen as anti-democratic. This causes concern.

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When a person possesses those perceptions, associations and judgments, in relation to persons and things, which agree with those of the generality of mankind, he is said to possess common sense.  And so, the opposite may also be true.
In this example NALC’s “interpretation” and inclusion in model orders of their interpretation that the clerk has authority to dictate the content of the agenda - other than on matters of accuracy, completeness, legality, appropriateness - is what gives rise (a) to the sense that there may be an illogical and nonsensical motive and (b) can give rise and  inappropriate over confidence of bombastic clerks believing they may dictate the business of the agenda.
It is common sense in its simplest form which provides the situation where a clerk conducts basic administrative checks and the chair authorises the content and order of an agenda.

Answer 4

Local Councils Explained Page 158 - 159 states:

‘Reviewing Motions

The Proper Officer is expected to review motions received from councillors and decide if they can be included in the agenda. He is expected to include the motions that have been submitted to him in the agenda but this is not always possible.

If the motion contains simple grammatical or typographical errors, the Proper Officer should correct the error and include the corrected version of the motion on the agenda. 

If the Proper Officer considers a more extensive change in the wording is required, it is recommended that he obtains the councillor’s consent. If the motion is unclear in meaning, the Proper Officer is expected to explain this to the councillor, who is then free to resubmit it. Once a motion is accepted it will be included as an item of business on the agenda.’

Comments

Thanks but still not crystal clear. Perhaps we should bring back AOB.  Someone has to decide what goes on the agenda . I much prefer that the content be the sole arbiter rather than any person who can of course abuse their position .
Incidentally recently we  had a request to spend  (connected to the Environment Committee) which was urgent so the clerk added to the next meeting's agenda which was Planning .  Surely that is wrong ?

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It could be wrong - or perhaps nugatory - if the planning committee doesn’t have a delegation to approve spending on a recommendation from the enviro group.
The extract above from Local Councils Explained Page 158 - 159 states: is perfectly clear - the clerk checks a motion for accuracy, appropriateness, legality and spelling. That’s the limit of their role....

In that case it would be pointless and remain an unauthorised spend and / or a waste of time even considering it...

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One way around the lack of clarity which prevents AOB being part of an agenda is to have an item "items for the next agenda" at the end of the meeting.  Whilst there cant be any discussion at the meeting where this is discussed, at least other councillors can be made aware of the item, the request for it to be raised should be minuted and in theory if the item doesn't then appear on the next agenda, it can be queried in the open when the minutes of the next meeting are agreed.