Proper terms of reference/safeguards for instructing members/clerks to make decisions under S101 during the pandemic?

Question

For more than nine months, our parish council has given authority to the clerk, Chairman and Vice Chairman to use the S101 delegated powers during the period of the pandemic on the advice of local ALC. However, the three seem to use these powers to decide on matters that could and should be resolved in the monthly full meetings on Zoom or via an extraordinary meeting if this is required to resolve a council matter between ordinary meetings. They have been deciding between them somehow - no paper/email/phone trail or any other details are provided to councillors in advance - just an announcement by the clerk at the next meeting that X or Y was decided by S101 delegated powers. No supporting documentation for these decisions are made available for scrutiny before, during or after meetings to explain why and how these three people arrived at the decisions they have taken on behalf of the electors outside convened meetings. The three appear to work covertly. They communicate among themselves only, excluding other councillors from their correspondence/phone conversations/face-to-face conversations. This is not only divisive, but also flies in the face of the Nolan Principles of openness, transparency, etc and doesn't seem to follow due process. When asked to justify their S101 decisions and provide a comprehensive paper trail, they refuse to do so. What can other members of the council do to put a stop this 'secret squirrel' behaviour?

Answer 1

S101 allows decisions to be made by "by a committee, a sub-committee or an officer of the authority." I take that to mean an employee, not a post holder (i.e. Chairman). So whilst your Clerk may have the necessary powers, I don't think you are allowed to give them to the Chair or Vice Chair.

The original motion to allow the use of S101 should have included a definition of the purposes for which it could be applied, which would normally be for emergency items that cannot be determined by other means. Whatever the resolution, there is no excuse for making wider decisions or for failing to provide the necessary documentation for other members of the council or for the public record.

I suggest that you ask them to provide full details within a relatively short space of time, failing which you will be obliged to submit a request under the Freedom of Information Act, which, if you word the request correctly, could involve them in a huge amount of work. You could also propose a motion at your next meeting to end the emergency powers. Finally, it is worth bearing in mind that you have to choose a Chair and Vice Chair in three months' time!

Comments

You are still better off than us as we haven’t even been told what decisions have been made or who by

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The Freedom of Information Act is your friend!

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We don't have a permanent clerk at the moment, and are (apparently) finding it difficult to recruit one. All incoming and outgoing correspondence is being dealt with by the chair, including FoI requests!  The chair decides what information and correspondence will be shared with us.  I look forward to our formal meetings with the public, as I can then find out, at the same time as the community, what 'the Council' have done, or are planning to do!!

Answer 2

I thought powers were only delegated to clerks as a stopgap until the council could convene safely.  I would think that, as your meetings are now being held on zoom, power should revert back to the council.

Comments

Encouraged seemingly by many of the "Local Associations" many have claimed the powers are required indefinitely looking to build on them powers further.

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Two councillors are strongly opposed to these blanket powers given as advised by our ALC to the Clerk, Chairman and Vice Chairman and used over the past months without any accountability. The other councillors go with the flow and won't say boo to this particular goose as they have been led to believe the trio have the right to carry on regardless and make whatever decisions they like. Every time the two councillors raise their objections to the continuation of the powers, they are told that the powers have to remain in place during the pandemic as NALC and our local ALC have advised their continuance for the time being. Below is this month's example of a large number of S101 decisions taken outside the monthly council meetings by the trio published on the latest agenda. There is no reason why these matters could not have been addressed and decided upon by councillors voting in an extraordinary council meeting in public on Zoom which at least would have ensured that council business is being conducted in an open, transparent, unbiased and balanced manner despite the loss of face-to-face meetings. This is not democracy. it is rule by executive fiat. We might just as well not hold any proper council meetings and just dole out public funds via S101 decisions taken by two councillors and a clerk.

7 Matters resolved under the scheme of temporary delegation under LGA72s101
a) Letter sent to Borough Councillors asking them to vote against the
local plan as suggested by Member of Parliament.
b) Arranged a public meeting to discuss the Borough Council Local Plan
c) To order replacement batteries and pads and stickers for the
defibrillators at Selling School and Perry Woods
d) Agreed to an additional 10 hours to allow the Clerk to research the
broadband scheme, provide a draft letter, key names and addresses, print,
fold and stuff letters and affix postage stamp to 339 personalised letters.

8 Financial matters included under the scheme of temporary delegation
a) To pay the pro-forma invoice for the replacement batteries, pads and
stickers £716.40 including VAT

ccountability. The other councillors go with the flow and won't say boo to this particular goose as they believe the trio have the right to carry on regardless. Every time the two councillors raise their objections to the continuation of the powers, they are told that the powers have to remain in place during the pandemic as NALC and our local ALC have advised their continuance for the time being. There is no reason why these matters could not have been addressed and decided upon by councillors voting in an extraordinary council meeting held on Zoom in public, which would have ensured that all council business is being conducted as required under the 1972 Act in an open, transparent, unbiased and balanced manner despite the loss of face-to-face meetings. This is not democracy. It is rule by executive fiat. We might just as well not convene any more council meetings and just dole out public funds via S101 decisions taken by two councillors and a council employee.
Should this matter be raised with he parish council's Internal Auditor and/or the borough council's MO?

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Have you all seen the advice provided by KALC? Did it actually say that authority should be delegated to the Chair and Vice Chair? If so, did it say under what powers these delegations were being recommended? Perhaps you should submit a query to KALC asking for clarification regarding the legality of giving the Chair and Vice Chair executive powers to conduct regular council business at a time when the council is holding meetings.

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Thanks, but ALCS don't reply to queries submitted by 'ordinary' councillors - only those raised by the clerk, chairman and vice chairman. I asked for the ALC's advice re S101 decisions during lockdown but they have not provided. This is an ongoing problem. I am forced to put in FOIs to the Clerk in order to get  to see documents/emails/reports etc that should have been forthcoming to me as a councillor to scrutinise prior to meetings in order to make fully informed decisions during council meetings.