Iis an election by default illegal under the 18th March 2022 amendment to The Local Government Act Section 16

Question

The Local Government Act 1972 Section 16 was amended on March 18th 2022

It required all town and Parish councils to have an ELECTED  quorum under the People’s Representation Act 1983 of at least five members

However some parish and town councils did not hold any elections
My question is are they acting illegally using public funds

Answer 1

There are two issues here.  One is the definition of the term "elected" and the second is whether a councillor is elected when technically there is no poll.
The amendment in 2022 was to incorporate otherwise outstanding amendments in previous legislation so it didn't introduce anything new; just confirmed amendments previously included in other legislation.  Without spending a lot of time looking for it, I can't quote the actual legal reference for co-opted councillors being classed as "elected" but the 1972 Act did provide the power for local councils to co-opt members where there were insufficient candidates at an election and/or where a casual vacancy occurs and there is no demand for an election by the electorate.
My understanding of the requirement for there being a minimum of 5 seats on a parish council is a reference to there being a need for at least five seats in any parish council, regardless of size of the electorate.  A quorum is defined as one third of the number of seats (rounded up where this is a fraction) or a  minimum of 3, whichever is the larger figure.

Elections are held every four years (also by virtue of the 1972 Act) but where there are the same number of candidates (or less) than there are seats the Act also provides for those candidates to be automatically elected.  There does not have to be an actual vote to have taken place.   Remaining vacancies can be filled by co-option as soon as practicable after the date of the election.  Where there are less candidates than the minimum number required to form a quorum, the principal authority can fill those vacancies in the short term to enable a council to act to fill those vacancies by co-option.
It is not uncommon for the electorate to believe no elections have taken place when there is no poll.  Despite notices everywhere (notice boards, websites etc.) and a huge amount of publicity, the whole local council election process does seem to pass many people by.  This is unfortunate but does not render the process unlawful.

Answer 2

I suspect that where no elections were held it was due to not enough candidates standing to require elections. They would be deemed to be "elected unopposed" by the principal authority and could be argued to have been elected.  The issue could arise where for example there were ten councillor vacancies but only three stood for election and the other 7 were filled by cooption.

Comments

Hi, The Electoral Commissioners inform me that there is no procedure in our democracy to have an election by default it is a contradiction in terms. The matter of co-option is covered in section 16 (2)
The five ELECTED candidates must be elected under the Peoples Representation Act 1983 as stated in section 16 which means Votes must be cast. My local Parish council have nine members , none of them elected there were more than five so they should have had an election. My District Council refuse to answer in spite of a request from my MP

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That then means that my Town Council and possibly hundreds of others could be in the same position! Suggest you write to Michael Gove MP about this and raise the issue also with your appropriate Local Government ombudsman.

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I started to look at the 1983 act and it incorporates the following. I suspect a number of councils have been convened  with unfilled vacancies too.
39.  Local elections void etc. in England and Wales.
(1)If in England and Wales at [F434a local government election, other than an election for the return of the London members of the London Assembly,]—
(a)the poll is countermanded or abandoned for any reason, or
(b)no person is or remains, or an insufficient number of persons are or remain, validly nominated to fill the vacancy or vacancies in respect of which the election is held,the returning officer F435. . . shall order an election to fill any vacancy which remains unfilled to be held on a day appointed by him.That day shall be within the period of [F43635 days] (computed acccording to section 40 below) beginning with the day fixed as the day of election for the first mentioned election.

Answer 3

The Local Elections (Principal Areas) (England and Wales) Rules 2006 say the following:

Method of election

14.—(1) If the number of persons remaining validly nominated for the electoral area after any withdrawals under these Rules exceeds the number of councillors to be elected, a poll must be taken in accordance with Part 3 of these Rules.

(2) If the number of persons remaining validly nominated for the electoral area after any withdrawals under these Rules does not exceed the number of councillors to be elected, such person or persons must be declared to be elected in accordance with Part 4 of these Rules.

Comments

The question is on what act and relevant articles does your electoral commission statement over ride these definitions of "elected", for the purpose of satisfying parish council quoracy? I.E. where elected is only defined where ballot papers are tendered?

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Are you suggesting that statutory instruments made by the Secretary of State in accordance with (in this case) the Representation of the People Act 1983 not legal or legally binding?

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No not at all.   My comment was asking Pankhurst about their statement
"The five ELECTED candidates must be elected under the Peoples Representation Act 1983 as stated in section 16 which means Votes must be cast."   I was seeking to find out under what legislation have the Electoral Commission deemed that for Parish Council Quoracy "elected" means via votes cast into a ballot box.  My  non exhaustive search couldn't come up with anything definitive.