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.

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Earlier this year I had two vacancies. One resident contacted me to express an interest. She had 10 residents ready to sign a petition but asked me whether this was the best way to proceed. I advised her that interest in the vacancies was low, that an election would cost the council several thousand pounds and that it would not increase her chance of being a successful candidate. We have a formal process that selects the best candidate for the role against defined criteria specific to the vacancy and it was clear to me that she would be selected in a competitive co-option process if the unimaginable happened and we had more candidates than vacancies (although I didn't tell her this as it's not my place to do so). No election was called, she was duly co-opted and the council saved itself a sizeable chunk of money that has since been spent on improvements to the children's play equipment.

My only previous experience of a petition occurred a couple of years ago when 10 residents submitted their petition on the grounds that it was good for democracy, then didn't put forward a candidate, so no election was held. Once the election had been called, the vacancy could only be filled by election, so a second election was called and a candidate with no connection to the petitioners threw his hat into the ring and was duly elected as the sole candidate, with no election and a saving of over £4k for the council.

I am fortunate that two of my three parishes have regular newsletters that are distributed to every household, so it's relatively easy to keep residents up to date with matters such as vacancies and elections. Apart from our own website, we also use noticeboards and Facebook. We seek to educate our residents regarding their powers in such matters.