How is the 6 month rule LGA 1972 S 85 applied

Question

I attended a council meeting on the 12 Sept.17 and the visited close family in New Zealand, with a return date to allow me to attend the 13 March meeting. I have just been informed by the clerk that I have been disqualified effective from 12 March. Is this a correct interpretation of LGA 1972 s 85. I will have only missed 2 meetings.

Answer 1

With caveats (below) it does seem correct. The legislation is, as you say, LGA 1972 section 85 (1) which says "...if a member of a local authority fails throughout a period of six consecutive months from the date of his last attendance to attend any meeting of the authority, he shall, unless the failure was due to some reason approved by the authority before the expiry of that period, cease to be a member of the authority". This is pretty clear.

The caveat is, of course, the "unless". Assuming that you wished to remain a councillor, the appropriate way to proceed would have been for you to submit your apologies for the meetings you were unable to attend, and for the council to resolve to accept your apologies as appropriate reasons for your absence. One would expect the clerk to cooperate to enable this process, and ideally warn you of the risk of removal. Although the clerk does not have a formal duty to do so. Obviously, a lot can depend on exactly what information was exchanged, and perhaps the personal relationships involved.

Comments

Many thanks - that is very helpful. I had checked the six month rule, but missed the fact that that the six months started from the date of the last attended meeting, I would have been able to attend the next meeting which is just one day after the six month period, so effectively I became disqualified after missing the second meeting. This statutory requirement seems strange as the date of the meetings vary each month and can be altered by the council. As our council meets bi-monthly my disqualification has been caused by missing tow meetings whereas a councillor meeting each month would miss five.
Would the fact that my absence was discussed at my last meeting and I have sent in apologies each month which have not been questioned, affect the outcome?
You are correct that it really depends on relationships. I have just pointed out that the Chairman has breach our standing order relating to declaring a pecuniary interest in a planning application. He declared the interest and left the meeting when the application was first received. The application has been going through the process for several years. There was a delay at the start after which the Chairman did not declare his interest, remained in the meetings, took part in the discussion and represented the council at the development control committee and at appeal meetings. 5 of our 7 councillors have  always voted with the chairman regardless of the subject. I have written to each of them to ask them to accept my reason for being away but I have not received any responses.
If, as looks likely , I am disqualified, do you have any advice on how I should proceed with the breach of the standing order, which I believe may be a criminal offence.

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Yes, the timing was unfortunate for you! Part of the problem is that councils often behave somewhat informally over apologies for absence. Strictly speaking, as far as I can see (happy to hear other views), the council cannot be said to have approved your absence unless there was a vote. Without a vote, the apologies have merely been conveyed to the council. The clerk should have been aware of this, and if it was reasonable for them to think that you wished to retain your councillor status, should have put forward you apologies in the agenda in a way that expected a decision by voting. This is rather pernickety, but if there is an element of hostility, I'm afraid that the letter of the law is liable to be invoked, and even if the clerk is at fault I fear that will not affect the situation. If the council voted to accept your apologies, then I would think the "unless" applies. Usually, a criminal offence of that kind would be handled by the local Monitoring Officer referring the matter to the police, who would investigate and then involve the CPS if the evidence looks to warrant a prosecution. I guess it is also possible to raise such a matter directly with the police, but it would be preferable to go through the Monitoring Officer.

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One thing to claify. At each meeting we have an agenda item "Apologies for Absencee". That apology is either accepted or rejected at the meeting.  I assume that such an apology (if deleivered and accepted) is not to be taken into account when deciding on what determines a 6 months.period. i.e. 6 months is 6 months.

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I fear you're in a very grey area there. If there was a vote, then certainly that means that the council has made a decision. If the agenda item is simply a bare bones "Apologies for Absence" it is may depend on whether reasons for absence were given to the council, rather than merely a statement that apologies had been received from such and such a councillor. Even then, it's somewhat uncertain what the council is deciding in the absence of an explicit motion. If there was a vote and reasons were given to the council, you could certainly try arguing the case!

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Thanks. It is a grey area. Our minutes two weeks ago, as an example, said " IT WAS RESOLVED to accept the above apologies with reasons.  Vote: for 13 – against 0 – abstained 0.  The Resolution was carried.".

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A resolution with that wording passed by the council would certainly nullify the six month rule, up to that point.