APPOINTING COUNCILLORS

Question

When a clerk does not advise the District Council or issue vacancy notices  when Councillors resign and instead moves straight to co-option are the co-opted Councillors legally appointed?    If so should they be removed and is there any advice on such a scenario

Answer 1

If the circumstances you describe are accurate, you should contact your local electoral registration office and ask them to investigate.

There must be a notice of casual vacancy to the ERO, there must be the opportunity for electors to request an election and only AFTER that process has competed can there be a co-option.

Your clerk is not empowered to circumvent those stages and your council is not empowered to co-opt until AFTER those stages have been completed.

Comments

The only time a council can move directly to a co-option is if/when there are vacancies following a full council election when any unfilled seats can be filled by co-option "as soon as practicable" after the election.  I'm not sure if anyone has actually defined "as soon as practicable".

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Good spot! I forgot about that anomaly

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I’d be interested to know the source of this information please.

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It's contained in s21(2) RPA 1985.  Interestingly, there is no time limit for the council to co-opt it seems.  If the numbers of candidates does not meet the minimum number for a quorum after a full election, the county council (or whoever your elections authority is) must act to ensure there is a quorum within 35 days but the 35 days is not a limit on the time within which the parish council can co-opt.  It does seem possible then that if a full election occurred in 2023, the council could still have vacancies that it can move straight to co-option to fill.

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Now that's interesting because I read S21(2) in reverse view to you and consequently that the 35 days period is a fixed event.  This is one of those occasions where we would debate the issue over a cup of tea (or something stronger) and thrash it out.  That, of course, is not possible here.  Thanks for responding though.

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I interpret the intention being that s21(2) provides that the council may co-opt "only" (my emphasis) where an election fails to return sufficient candidates for the council to be quorate.

It would be a lot clearer if the first word in para (2) was "if" rather than "unless."
If the council IS quorate, I read that as NOT providing authority for the council to co-opt.

Logically, you would move direct to co-option if inquorate but it would be impossible to have a valid co-option IF inquorate...


Ambiguity and uncertainty in the legislation - who'd have thought it...

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But in any case, if it is years after an election - the point remains, the clerk should notify the ERO of the vacancy

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Our county council issued an interpretation of the legislation immediately after the last full elections and allegedly based upon a legal opinion that the 35 days applies to the elections authority and not parish councils but I'm no expert/

Answer 2

Is this a regular issue, or just a one off?

Comments

Our Electoral office says there is no legal requirement for Clerks to advise them of resignations.  Clerks  must however issue a vacancy notice which must include the option of 10 electors  to contact the election office to arrange an election .  Is that correct ?   Also do copies of vacancies notices have to be retained