UNFILLED SEATS AT AN ELECTION

Question

It would appear that when a PC  election is held and there are unfilled seats PCs have the discretion to fill the seats through co-option for a  period of up to? 35 working days.

At that stage it seems the local “elections office” should step in and mandate  the way forward (s39) .  However, if no action is taken by the District Council is the PC still able to carry on filling unfilled seats by co-option ie does that option still exist?

The Electoral Commission will not comment as it says in has no role in Parish Council matters

PS I must confess I find the legalisation difficult to follow

Answer 1

Our local elections office has said that the 35 days applies to the elections team taking action when a parish council is inquorate after a full election and that there is no limitation on when a parish council can co-opt to fill a vacancy which has arisen as a result of there being insufficient candidates presenting themselves for election.  Their advice is that a parish council should co-opt as soon as is practicable but they've not defined that term.
I agree, the wording of the legislation is difficult to interpret but I believe the rationale behind that interpretation is that the election process serves as the "notice" of vacancy.  There is no limitation on time to fill a casual vacancy by co-option in between full elections (once the vacancy has been appropriately advertised and members of the electorate given the opportunity to request an election) so their advice seems supportable.

Comments

This needs spelling out in Janet and John terms .  Here is another view https://devonalc.org.uk/news/co-option-after-an-election/

Here is what co-pilot says    
Unfilled Seats After Election: If there are not enough candidates to fill all the seats during the election, the Parish Council can co-opt members to fill the remaining seats1
.

Timeframe: The Parish Council usually has up to 35 working days to fill these vacancies through co-option
. If they do not fill the seats within this period, the local elections office may step in to arrange a by-election

Answer 2

If there are insufficient members to form a quorum following an election and the council is unable to co-opt additional members within the 35-day limit, the district council is obliged (but not compelled) to intervene. Options include appointing temporary councillors or calling an election.

If the council is quorate but still has vacancies, the council should take a proactive approach to filling the vacancies, hence the "as soon as practicable" phrase quoted by Delboy's Wife. There is no time limit for this.

In either scenario, the legislation says the district council "may" intervene, so it is entirely at their discretion.

Comments

Eventually . I believe the penny has dropped.  The key is in understanding the difference between an ordinary election and a by election.  With an ordinary election a PC can co-opt to fill any  unfilled (ordinary) vacancies without any restrictions.  With a by election any unfilled (casual) vacancies must be subject to a further by election which has to be held within 35 days of the original. Please tell me I am right DTC.    Of course what has happened in my case is that Councillors who filled the original ordinary unfilled seats have since resigned and they become casual vacancies of course and subject to the usual rules

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Yes. Casual vacancies must be advertised as soon as they occur, with the elections office usually publishing the statutory notice. This is because electors have rights to call an election, although this rarely happens and should be discouraged due to the cost. If no election is called and the council remains quorate, the elections office will usually leave the council to manage its own vacancies.

The confusion arises because for scheduled elections, Section 39(1) of the Representation of the People Act 1983 requires the district council to call a second election within 35 days of the first to fill vacancies. This is a general requirement for elections to all levels of local government. Section 21 of the Representation of the People Act 1985 (i.e. 2 years later) deals specifically with parish councils and places the responsibility within a quorate council to fill the vacancies by co-option with no external involvement. The role of the district council is limited to supporting the parish council to become quorate, which may, as a last resort, require the district council to appoint councillors to fill vacancies.

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it is not the role of the PC nor the clerk to "discourage" electors from seeking an election on the occasion of a casual (mid term) vacancy arising.


Yes, there is a financial implication for the council if / when electors state their desire for an election, but given the state of many PCs with frequent and recurring co-options (those currently on the council selecting additions to the council) the potential for perpetuation of under performance is a greater risk to first tier government than the cost of a mid term election.


Finding 10 electors that are even aware of a mid term vacancy and their RIGHT to ask for an election is a big enough challenge but when that right must absolutely be recognised and encouraged not discouraged.