Arnold-Baker on Local Council Administration, Ninth Edition Chapter 7: Meetings and Procedure of a Local Council

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Chapter 7 MEETINGS AND PROCEDURE OF A LOCAL COUNCIL

A NUMBER, DATE AND TIME

7.1 A local council must meet annually. In an election year this annual meeting must take place on the day when the councillors take office, or within 14 days thereafter. In any other year it may be held on any day in May. In addition a parish, but not a community1, council must meet on at least three other occasions during the year2 and may hold as many further meetings as it pleases. Such meetings may be held by virtue of a standing order, or they may be specially convened. A meeting may be adjourned for any reasonable length of time but after the resumption it can consider only the remainder of the agenda being considered before the adjournment. A meeting cannot be adjourned to a date after the next regular meeting, because its minutes cannot then be completed in time, nor before an election to a date after the new councillors come into office, because the new councillors will not have received the old agenda. A local council may meet at any time of day but the annual meeting is held at 6 pm if no other time has been fixed for it3. 1 Local Government Act 1972, Sch 12, para 8. There is no equivalent Welsh provision. 2 LGA 1972, Sch 12, paras 10(1) and 26(1). 3 LGA 1972, Sch 12, paras 7 and 23.

B PLACE OF MEETING 7.2 Meetings may not take place in licensed premises (see 24.5 below) unless no other suitable room is available free of charge or at reasonable cost1. If the council owns a suitable room in the locality which it can use free of charge, meetings must be held there; if not, then at all reasonable times and after reasonable notice, the council may use free of charge a room in any school maintained by the local education authority or any room maintainable out of any rate, but a room in a dwelling-house cannot be required for the purpose nor may a meeting be held so as to interfere with the hours in which a room is needed for education, justice or police2.

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7.2 Meetings and procedure of a local council

It is generally inappropriate for a council to meet in a room in private house. The room may be of inadequate size and not compliant with rules or good practice relating to health and safety, public liability, disabled access and facilities for the press. It also may give the impression that the council is a private body. Subject to the foregoing a council may meet outside its locality3. The local council or parish meeting must make good the cost of any expenses or damage incurred as a result of the meeting4. Before 1894 the vestry could meet in the church or vestry unless the Vestries Act 1850 had been applied to the parish by order. English parish councils (or, where there is no parish council, the parish meeting) inherited the rights of their respective vestries as they stood in 18945. 1 Local Government Act 1972, Sch 12, paras 7 and 23. 2 LGA 1972, s 134(1)–(3). 3 LGA 1972, Sch 12, paras 10(1) and 26(1). 4 LGA 1972, s 134(4). 5 Local Government Act 1894, ss 6(1), 19 and 75(1).

C RIGHT TO CONVENE 7.3 There is a distinction between ordinary and extraordinary meetings. An ordinary meeting is called by the clerk in pursuance of statutory rules or under standing orders, and includes a meeting convened by him to elect a chairman when a casual vacancy has arisen in the chair1. An extraordinary meeting is one specially called. The chairman may convene an extraordinary meeting of the council at any time2, and unless it by standing order otherwise directs, the vice-chairman may do so in the absence of the chairman3. In addition if two members sign a requisition that the council be convened and the chairman (or vice-chairman as the case may be) either refuses or neglects to do so for seven days, then any two members may convene1. The two convening members need not be the same as the requisitioning members. 1 Local Government Act 1972, Sch 12, paras 8 and 24 and s 88(2). 2 LGA 1972, Sch 12, paras 9 and 25. For special meetings to appoint honorary freemen see 5.15 above. 3 LGA 1972, ss 15(9) and 34(9).

D PUBLIC NOTICES AND AGENDA

Notice 7.4 At least three clear days before a meeting of the council (excluding the days of issue and meeting, Sundays, the days of the Christmas, Easter and bank holiday breaks and days appointed for public thanksgiving or mourning1)a notice of the time and place of the meeting must be afﬁxed in some conspicuous place in the locality. If the meeting is called by councillors, they must sign it and it must specify the business to be transacted at the meeting2; if the business includes a statutory resolution under the Local Government

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Conﬁdence and admission of strangers 7.6

Superannuation Acts the terms of the resolution and the fact that it will be moved must be set out in the notice, which must be exhibited 28 clear days before the meeting3. For meetings to consider certain auditors’ reports see 18.15–19 below. 1 Local Government Act 1972,s 243. 2 Local Government Act 1972, Sch 12, paras 10(2)(a) and 26(2)(a). 3 Local Government Pension Scheme Regulations 1995, SI 1995/1019, reg B1(i) and Sch A1(i). (The latter deﬁnes “statutory resolution”.)

Agenda 7.5 A similar period before the meeting a summons signed by the clerk must be left at or sent by post to the usual residence of every member of the council1 (including the retiring chairman and vice-chairman after an ordinary election even if they have failed to secure re-election). This must specify the business which it is proposed to transact1 in such a way that the member who receives it can identify the matters which he will be expected to discuss. A council cannot lawfully decide any matter which is not specified in the summons2. It is a common practice to send agendas (and accompanying documents) by email. NALC advises its members that the summons may be served electronically so long as the relevant email contains the electronic signature and title of the proper officer and the council has first passed a resolution authorising service of the summons by electronic means. Some agendas conclude with the item ‘Any Other Business’. Since this conceals rather than specifies the business, if any, to which it relates no decisions may lawfully be made on business brought up for discussion under it, unless the council has at a previous meeting passed a standing order which permits business left over from a previous meeting to be discussed under this head. There is, however, no objection to matters being discussed under the heading of ‘Any Other Business’ which involve no more than an exchange of information. The author’s view is that an agenda should not include “Any Other Business” to avoid the possibility of decisions being taken unlawfully. 1 Local Government Act 1972, Sch 12, paras 10(2)(b) and 26(2)(b). 2 Longfield Parish Council v Wright (1918) 88 LJ Ch 119.

E CONFIDENCE AND ADMISSION OF STRANGERS 7.6 A meeting of a council must be open to the public and the press. They can be excluded only by a resolution if publicity would prejudice the public interest by reason of the conﬁdential nature of the business or for some other reason stated in the resolution and arising out of the business to be transacted. The power to exclude1 is not exercisable generally but only for a particular occasion. The press has no greater right to be present than the public, but it is entitled, on payment, to copies of the agenda. The council must also give the press facilities for taking their reports and (unless the meeting place is not owned by the council) for telephoning them. These rules apply equally to committees of the council2.

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7.6 Meetings and procedure of a local council

In few cases is there any good reason for excluding the press or the public from meetings, and in still fewer is it necessary to impose secrecy upon the members. As a rule, however, it is desirable to treat the discussion of the following types of business as conﬁdential: (a) engagement, terms of service, conduct and dismissal of employees; (b) terms of tenders, and proposals and counter-proposals in negotiations for contracts; (c) preparation of cases in legal proceedings; and (d) the early stages of any dispute. 1 Public Bodies (Admission to Meetings) Act 1960. 2 Local Government Act 1972, ss 100 and 102.

Public participation 7.7 Many local councils set aside a period when the public can ask questions or even make statements. This is an excellent practice as long as the period is deﬁned, and it is clearly understood that the public must not take part at any other time.

F COUNCIL QUORUM 7.8 The quorum is three or one-third of the total membership, whichever is the greater, but where more than one-third of the members are disqualiﬁed at the same time the quorum is either three or one-third of the qualiﬁed members whichever is the greater, until such time as the membership has been increased to not less than two-thirds of the total1. 1 Local Government Act 1972, Sch 12, paras 12, 28 and 45. For the temporary appointment of members pending the election of new councillors so as to expedite business see 6.22 above.

G COUNCILLORS’ CONDUCT

England 7.9 The power conferred by the Local Government Act 2000 on the Secretary of State to prescribe principles and codes of conduct for councillors was abolished by the Localism Act 2011. The 2011 Act requires every council to adopt a code of conduct. Parish councils may adopt the code of the principal authority within the area of which it lies1. NALC has prepared a model code which can be accessed by councils in membership on the Association’s website. The code applies to elected and co-opted councillors but not to appointed councillors. 1 Localism Act 2011, s 27.

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Interests 7.11

Wales The Welsh Assembly may by order specify principles which are to govern the conduct of members and co-opted members of local councils. The Assembly may also issue model codes consistent with such principles or revise them2. The codes may contain optional as well as mandatory provisions. Most of the provisions are mandatory, the exceptions being where the relevant legislation underlying the code is not applicable to local councils. Within six months of their issue a local council must resolve to adopt or revise a code, make copies available for inspection, advertise them and send copies to the Public Services Ombudsman for Wales. Principal authorities must appoint Standards Committees to promote high standards of conduct, assist members to observe their code, advise on the adoption or revision of it, monitor its operation and arrange for training on related matters3. At least one member of a standards committee must be a local councillor for the area. The Public Services Ombudsman for Wales has issued guidance to community councillors. This can be viewed on the Ombudsman’s website. 2 LGA 2000, s 50; Local Authorities (Model Code of Conduct) (Wales) Order 2008, SI 2008/788. 3 LGA 2000, ss 53–56.

Pursuit and adjudication (Wales only) 7.10 The Public Services Ombudsman for Wales appoints ethical standards officers who may investigate and report on complaints. The report may be referred to an adjudication panel and ultimately to a Case Tribunal to declare whether there has or has not been a breach of a code of conduct. If it declares a breach, it may decide to take no other action, or decide that a culprit be suspended for not more than a year or until the end of his term of office, or be disqualified from office in that or any other authority for not more than five years. It can also make recommendations to the council, which must consider them within three months.

H INTERESTS

England

7.11 Councillors’ conduct in relation to interests and the registration of them, are regulated by the Localism Act 2011 ss 26-34 and regulations made thereunder. The provisions of the 2011 Act require the monitoring ofﬁcer of the relevant principal authority to establish and maintain a register of interests of elected and co-opted members. The register must be available for public inspection at a place within the principal authority’s area at all reasonable hours and must be published on that authority’s website. If a parish council has a website, the register must be published there as well1. Within 28 days after becoming an elected or co-opted member, a councillor must notify the monitoring ofﬁcer of any disclosable pecuniary interests which

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7.11 Meetings and procedure of a local council

he has at the time of notification2. Those interests are specified in the Relevant Authorities (Disclosable Interests) Regulations 2012, SI 2012/1464. A pecuniary interest is disclosable if it is either the interest of the member himself or that of his spouse, or civil partner, or person living with the member as husband or wife or as if they were civil partners. The member must be aware of the interest for it to be disclosable3. Where a member has a sensitive disclosable interest, the existence of the interest must be disclosed but not its nature. An interest is sensitive if member and the monitoring officer consider that disclosure could lead to the member being subject to violence or intimidation4. At a meeting of the council, a committee, a sub-committee or a joint committee or sub-committee at which he is present, a member must disclose any disclosable interest of which he is aware (including any such interest which is not registered). Having declared the interest, the member must not participate, or further participate, in discussion on the matter and must not take part in any vote or further vote thereon. If the declared interest is not on the register, it must be registered within 28 days of its declaration. Standing orders may provide for the exclusion of a member during discussion and voting on a matter in which he has declared a disclosable pecuniary interest. Furthermore, the member must not take any steps, or further steps, in relation to the matter, save for the purpose of enabling the matter to be dealt with otherwise than by the member5. The council may grant a member a dispensation from the ban on speaking or voting (one or both) if it considers: (a) that without a dispensation the number of persons prohibited from speaking and/or voting would be so great a proportion of the members that the council’s business would be impeded; (b) that without the dispensation the party political balance on the council would be upset and alter the likely outcome of a vote; or (c) that it would otherwise be appropriate to grant a dispensation. The period of dispensation must be for a specified period not exceeding four years6. It is an offence without reasonable excuse: (a) to fail to register a disclosable pecuniary interest, or to fail to declare an unregistered interest at a meeting, or to fail to register an unregistered within 28 days after its declaration; (b) to speak or vote in relation to a declared pecuniary interest; (c) take any steps in relation to a matter in which he has declared an interest. The maximum penalty on summary conviction is a fine not exceeding level 5 on the standard scale. In addition, the court may disqualify a convicted person for a period not exceeding five years. A prosecution must be sanctioned by the Director of Public Prosecutions and must normally be brought within 12 months from the date on which the prosecutor obtained sufficient evidence to warrant proceedings with a long stop of three years7. 1 Localism Act 2011, s 29. 2 Localism Act 2011, s 30(1). 3 Localism Act 2011, s 30(3). 4 Localism Act 2011, s 32. 5 Localism Act 2011, s 31. 6 Localism Act 2011, s 33. 7 Localism Act 2011, s 34.

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Persistent absence 7.14

Wales The Localism Act 2011 does not apply in Wales, The law relating to interests in Wales is governed by Part III of the Local Government Act 2000. The registrable interests of members are speciﬁed in The Local Authorities (Model Code of Conduct) (Wales) Order 2008, SI 2008/788.

I PERSISTENT ABSENCE 7.12 If a member fails throughout six consecutive months to attend any meetings of the council or of its committees or sub-committees of which he is a member, or of a joint committee, joint board or other body to which any of the council’s powers have been transferred or delegated, he ceases automatically to be a member of the council1 unless either he has a ‘statutory excuse’ (broadly speaking, military service during war or an emergency) or his failure is due to a reason approved by the council before the end of the period or he attended as a representative of the council at a meeting of any body of persons (such as a county association of local councils). The period begins with the last meeting attended2. 1 Local Government Act 1972, s 85(1) and (2). 2 LGA 1972, s 85(1).

Employment 7.13 A councillor’s employer must give his employee reasonable time off to attend to council affairs and perform approved duties, having regard to the employee’s absence on the business and the amount of time required or already taken by the employee on trade union duties; and the councillor may complain to an employment tribunal if he fails to do so1. 1 Employment Rights Act 1996, s 50.

Excuses 7.14 Membership of the armed forces in time of war is a statutory excuse and so is such service under the Crown in connection with a war or emergency as in the Secretary of State’s opinion entitles the member to relief1. Apologies need not necessarily be conveyed in writing but reasons for absence known to the council should be minuted. Where a council is considering a reason for absence, some reason or explanation must be known to it and this must be approved by affirmative resolution at the earliest possible moment before the end of the six months. If at that moment the council fails to consider the question, the office falls vacant without further ado, and the vacancy must be declared and filled in the proper manner. There is nothing to prevent a local council from approving a reason for absence in advance. 1 Local Government Act 1972, s 85(3).

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7.15 Meetings and procedure of a local council

J DISQUALIFICATION AND CESSATION OF QUALIFICATION 7.15 When a member ceases to be qualified or becomes disqualified he must at once cease to act and risks legal proceedings if he continues to do so1. The prohibition, which covers the signature of documents2, is absolute, though for the purpose of filling the vacancy his office is not deemed vacant until so declared. A member always ceases to be a member when he ceases to hold a qualifying nationality, but apart from this some may be more effectively entrenched than others; thus one who resided in the locality or within three miles of it during the whole twelve months before the election day, or who has, during the whole of that period, occupied land or had his principal place of work there, will remain a member for the whole of his term even though he leaves the qualifying area permanently on the day after he enters office, but another who is qualified only as an elector will cease to be eligible or to be a member when his name no longer appears on the electoral roll3. A disqualification is a consequence of a positive event4 whereas a cessation of qualification is negative; disqualifications are therefore usually attended with greater publicity and are easier to ascertain. 1 Local Government Act 1972, s 92. 2 For the evidential effect of signed minutes in this context see 7.34 below. 3 For the right to be on the electoral roll and the date upon which it comes into force see 5.8 above. 4 See 6.2 above.

K ATTENDANCE REGISTER AND APOLOGIES 7.16 The names of members present at a meeting must be recorded1 and this record should form part of the minutes of each meeting. It is unnecessary as a rule to record a late arrival, but it is important to record the grounds upon which apologies for absence are tendered in case they have to be approved to prevent a casual vacancy arising2. If a member withdraws on grounds of interest, his withdrawal should be recorded. 1 Local Government Act 1972, Sch 12, para 40. 2 See 7.12 above.

L ANNUAL AND FIRST MEETINGS

First meetings 7.17 Local councillors are, of course, entitled to be present at all meetings but in addition certain others may, for a short time, take part at certain first or annual meetings; these additional persons are, in the case of the first meeting after the creation of the council, the person appointed by the district council (T) to act in place of the chairman1; in the case of the first annual meeting after an ordinary election the chairman and vice-chairman who are about to retire; and in the case of any other annual meeting the retiring chairman2. 1 Under Representation of the People Act 1983, s 39 and Local Government Act 1972, s 91.

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Annual and ﬁrst meetings 7.21

2 LGA 1972, ss 15(4), (7) and (8) and 34(4), (7) and (8).

Who may preside 7.18 The chairman, or in his absence the vice-chairman (if any), must preside. Only if these are both absent may the council appoint some other councillor to preside1. The once common practice whereby proceedings at ﬁrst annual meetings after the elections were opened with the paid clerk in the chair is unlawful. 1 Local Government Act 1972, Sch 12, paras 11 and 27.

First business 7.19 The ﬁrst business of the meeting must be the election of the chairman1, who must be an elected (ie not appointed—see CHAPTER 6) member of the council. The person presiding may vote and must, if necessary, give a casting vote in such an election and may vote for himself, unless, in either case, he is a retiring chairman who is about to cease to be a member of the council, in which case he has only a casting vote2. In his absence the retiring vice-chairman has the same voting rights as the chairman3, but if the chairman is present, the vice-chairman may only vote if he is a councillor. The possibility of the vice-chairman not being a councillor can only occur immediately after an election. At the moment when the new chairman accepts ofﬁce the previous chairman and vice-chairman automatically retire4 and if they are not councillors they at the same moment cease to be members. 1 Local Government Act 1972, ss 15(2) and 34(2). 2 LGA 1972, ss 15(2), (3) and 34(2), (3). 3 LGA 1972, ss 15(9) and 34(9). See also LGA 1972, Sch 12, paras 11 and 27. 4 LGA 1972, ss 15(4), (7) and 34(4), (7).

Removal of difficulties 7.20 The district council (T) has power to remove certain difficulties arising at first meetings. The appointment of a person to preside at the opening is a common example of the use of this power1. 1 Under Representation of the People Act 1983, s 39 and Local Government Act 1972, s 91.

Routine business at annual meetings 7.21 Apart from the appointment of the chairman the law does not require any particular business to be transacted at the annual meeting, but it is desirable to establish a routine list of matters which should always appear on its agenda. Such a list may conveniently be incorporated in a standing order and may include the checking of inventories of parish and community documents, the appointment of representatives to the local councils associa-

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7.21 Meetings and procedure of a local council

tion and other bodies, the hearing of reports from such representatives, the payment of annual subscriptions and the election of committees.

M TIMING OF MEETINGS AND PRECEPTS 7.22 In fixing the dates of its meetings the council should have regard both to the timing of its precepts in the financial year preceding the beginning of the financial year for which it is issued, and, in England, the date of the annual assembly of the parish meeting which takes place between 1 March and 1 June inclusive.

N STANDING ORDERS ON BUSINESS1 1 For the compulsory standing orders on contracts see 19.9 below.

7.23 A council may make standing orders to regulate its business and proceedings, and may vary or revoke them2. Models are published by the National Association of Local Councils. It is usually not necessary for very small councils to have standing orders, but it is always desirable for every council to possess a copy of one of the recognised models, so that in a difﬁculty the chairman can give a decision based upon an established precedent. Standing orders must obviously not conﬂict with the law, and the Secretary of State may by regulation require or forbid particular standing orders3. 2 Local Government Act 1972, Sch 12, para 42. 3 Local Government and Housing Act 1989, s 20.

O SUBJECTS FOR CONSIDERATION 7.24 A local council may obviously consider any matter in which it has statutory power to act, including the power to spend an amount of money for any purpose which in the council’s opinion is for the beneﬁt of its area or its inhabitants1. In addition it has the same power to discuss parish or community affairs as the parish or community meeting2 because it may convene that body and therefore discuss the reason for doing so. In any event it is usually cheaper and better to discuss local affairs in the council than constantly to summon the electors to do so. 1 See 22.17 and also 22.35 below. 2 See 10.11 and 35.10 below.

Moving 7.25 A council may by standing order require that a resolution shall be seconded as well as moved (and many do) but a seconder is not required by any rule of law (or by either House of Parliament), and in the absence of such a standing order the chairman should permit resolutions and amendments to be discussed after they have been moved only.

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Subjects for consideration 7.29

Form

7.26 In all but the very simplest cases the mover of a resolution or amendment should be required to reduce it to writing. A resolution should be specific and wherever possible vagueness should be avoided. If it is not possible to be specific, a person or committee should be instructed to fill in the details, or the matter should be adjourned pending inquiries.

Duplicity

7.27 A resolution should not deal with more than one subject and where a resolution combining more than one subject is moved, the chairman should require the mover to separate the component parts and move them one by one. Disregard of this rule usually leads to confused discussion and may lead to confused action, if different parts of a resolution affect different interests or require consents from other and different bodies. In considering whether a resolution is duplex or not regard must be had to its substantial effect and not only to its wording, which may be deceptively simple. A resolution ‘that the parish ﬁeld be sold’ may turn out to be duplex if half the area happens to be held upon charitable trusts. When the chairman has severed the resolution which he suspects of duplicity it may be convenient (if the subjects are in some way inter-dependent) to allow both resolutions to be moved together but to require that the discussion upon them shall proceed separately.

Discussion

7.28 In larger authorities it is common to limit the length of speeches and not to permit members other than the mover to speak more than once on any one resolution. In any but the largest local councils these rules seem unduly restrictive. On the other hand the chairman ought not to allow members to introduce into their speeches matters which do not relate to the issue before the council. A decision on relevance is often hard to make, and no doubt a chairman should allow some latitude rather than incur the suspicion that he is trying to gag debate, but the duty should not be shirked and when a matter is ruled out of order as irrelevant the ruling should be ﬁrmly enforced.

The direct negative

7.29 It is never necessary to move the rejection of a resolution because every decision must be reached by an afﬁrmative vote of a majority present and voting, and if this is not secured the resolution is rejected in any case1. 1 See 7.32 below.

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7.30 Meetings and procedure of a local council

Amendment

7.30 Amendments should be moved in the form of motions either to insert or to alter or to omit words in the resolution under discussion. A direct negative is not an amendment, and an amendment whose practical effect is to negative the resolution should not be permitted, because its sponsor can achieve his object by persuading the council to vote against the resolution. In putting resolutions and amendments to the vote the chairman must put the amendment ﬁrst. The fact that an amendment is rejected does not mean that the main resolution is accepted, nor does acceptance of the amendment mean that the resolution as amended is accepted. In every case voting on an amendment must be followed by a decision on the main resolution. For instance, on a motion, ‘that a motor mower be purchased’ an amendment might be moved to insert the words ‘second-hand’ before ‘motor’. If the amendment is passed the motion under discussion will read ‘that a second- hand motor mower be purchased’ and it will still be open to move a further amendment (for instance to substitute ‘hand’ for ‘motor’). After all amendments have been disposed of it will still be necessary to decide if a mower shall be purchased at all, and this is done by voting upon the resolution in its ﬁnal form as amended or not amended.

Enforcing decisions

7.31 A decision on a topic ends discussion upon it. The council should proceed to the next business and the chairman must rule out of order (as irrelevant) any attempt at that meeting to reopen the previous topic.

P VOTING 7.32 Every decision, save to appoint an honorary freeman, must be made by a majority of the members present and voting1. Provided that a quorum is present it is immaterial that a quorum of members take part in the voting. A motion may therefore be carried by a single voter if nobody votes against him2. The person presiding may vote even if by so doing he creates an equality of votes, and if there is an equality of votes he has a second or casting vote3. Members vote by show of hands unless they have provided otherwise by standing order. If any member so requires the manner in which each member voted on any particular question must be recorded in the minutes4; and a member who wishes the voting to be recorded may make his demand either before or after the vote. 1 Local Government Act 1972, Sch 12, para 39(1). For honorary freedoms see 5.15 above. 2 For voting on co-options see 6.7 and on elections to the chair see 6.21 and 7.17. 3 LGA 1972, Sch 12, para 39(2) but see 8.1. See the facts in R v Jackson, ex p Pick (1913) 3 KB 426. For casting vote at an electors’ meeting see 10.7 and 35.11 below. 4 LGA 1972, Sch 12, paras 13 and 29.

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Minutes 7.36

Q DEFAMATION The subject matter of possible defamation is inﬁnitely various and the law correspondingly complicated. The following paragraphs give only the barest outline of that part of the law which most commonly affects local council proceedings.

7.33 ‘A man disparages the good name of another when he publishes to some third person words or matter which are false and which injure his reputation . . . such disparagement, if embodied in some permanent form . . . is called libel: if expressed in some fugitive form . . . it is called slander’1. It is presumed that libel causes injury and a similar presumption arises in slanders which disparage a person in his ofﬁce, profession, calling, trade, or business; in other cases of slander the person alleging injury must prove it2. 1 Gatley on Libel and Slander (5th edn, 1960), p 3. The current edition of Gatley (the 11th, published in 2008) does not contain these words. In view of the Rehabilitation of Offenders Act 1974 this famous quotation may need some revision. 2 Defamation Act 1952, s 2.

Privilege 7.34 A person who has made a defamatory statement may claim privilege for it if he can show that he made it without malice and in pursuit of a public duty. For instance if a member has a good reason to believe that the local council’s funds are being misappropriated he is under a public duty to inform the council. If, on investigation, the statement is found to be true, it is not defamatory at all, but if it is found to be untrue he may claim privilege if he acted without malice.

Fair comment

7.35 Fair comment on a matter of public interest is not actionable. The acts and proceedings of a local council are matters of public interest, and a local council or other local authority as such cannot maintain an action for defamation if it is criticised1 even if such criticism is intemperately expressed. Criticism must, however, be fair and if it is so worded that it can reasonably be held to impute unworthy or corrupt motives to particular members they would, as individuals, be entitled to take action. 1 Purcell v Sowler (1876–77) LR 2 CPD 215; Derbyshire County Council v Times Newspapers [1993] AC 534.

R MINUTES 7.36 Minutes of proceedings of a council and of its committees must be kept1. They are intended to be formal records of ofﬁcial acts and decisions, not reports, still less verbatim reports, of the speeches made by councillors. Minutes should, therefore, be as short as is consistent with clarity and accuracy, and the arguments used in the discussion need be recorded only if the decision cannot be clearly expressed in any other way. Short simple minutes

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7.36 Meetings and procedure of a local council

are less likely to be defamatory than long reports. 1 Local Government Act 1972, Sch 12, para 41(1).

Minute book 7.37 The minutes must be entered in a book kept for the purpose1. Looseleaf minute books are lawful provided that the pages are consecutively numbered and initialled by the person signing the minutes at the time of signature2. Though minutes may be held in a computer database for convenience, the minute book remains the only lawful and authentic record. 1 Local Government Act 1972, Sch 12, para 41(1). 2 LGA 1972, Sch 12, para 41(2).

Signature 7.38 The minutes must be signed and looseleaf pages initialled at the meeting which they record or at the next meeting, by the person presiding thereat1, but the Secretary of State has power to make regulations permitting some other day. In the world of local councils there does not seem to be any good reason for making them2. A council before allowing the chairman to sign should satisfy itself of their accuracy, but discussion of the words should not be allowed to stray into the merits of the decision which they express. The practice of signing minutes at the next meeting should not be regarded as invariable. In a difﬁcult or complicated matter, and especially when an interval of some months or a change of membership is expected, it is preferable to adjourn while the minutes are drawn up and to approve and sign them then and there. Minutes of an annual council meeting, if not signed on the same day, should be signed at the next ordinary council meeting and not held over for a year. 1 Local Government Act 1972, Sch 12, para 41(1). 2 LGA 1972, Sch 12, para 41(4).

Minutes of last meetings 7.39 The minutes of the last meeting of an abolished authority or one of its committees or of any joint committee which ceases to exist because of the abolition, should be drawn up and signed by the chairman at the end of the meeting, but if this is not practicable they must be circulated to every member present at the meeting and after seven days the chairman may sign them after considering representations from the recipients. If the chairman cannot sign, the proper ofﬁcer of the district or unitary council may nominate someone else present to do so1. 1 Local Government (Parishes and Parish Councils) Regulations 1999, SI 1999/545, reg 14.

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Minutes 7.41

Recording majorities

7.40 It is not necessary to record the majority by which a decision is made unless a member requires the voting to be recorded1, and though a member cannot be prevented from insisting upon this requirement, there are cases where it is undesirable or invidious to insist. These arise mainly in relation to the appointment of employees and especially the clerk. 1 Local Government Act 1972, Sch 12, paras 13(2) and 29(2).

Minutes as evidence 7.41 Minutes purporting to be properly signed may be received in evidence without further proof. Until the contrary is proved, where the minutes relate to a meeting of the council, the meeting is deemed to have been duly convened and held and all members present are deemed to have been qualified; and where they relate to a meeting of a committee, the committee is deemed to have been properly constituted and to have had power to deal with the matter set out in the minutes1. A copy of a resolution, order, report or minute of a local council or of a precursor of that council (or, in either case, of their committees or sub- committees) is evidence as long as it bears a certificate signed by the clerk or other proper officer authorised by the council. This certificate must state that the original was made or passed on a date specified in the certificate and, in the case of a minute that it was signed in accordance with the Local Government Act 1972, Sch 12, para 41, or the corresponding enactment in force at the time2. The corresponding enactment between 1 June 1934 and 31 March 1974 was the Local Government Act 1933, Sch III, Part V, para 3; if before that date the precursor was a parish council or a committee of a rural district council, the enactment was the Local Government Act 1894, Sch I, Part 3, para 2; but where it was the council of an urban or rural district it was the Public Health Act 1875, Sch I, Part (1), para 10 and where, before 1895 the precursor was a sanitary authority it was the same enactment for the authority but Part (2), para 8 for its committees. The following form of words may be thought suitable: ‘I certify that I am the proper officer authorised by the Llanfair Community Council to make this certificate; that the Llanfair Parish Council was the precursor of the Llanfair Community Council; that the said Parish Council passed a minute on the 3rd January, 1943, which was signed on 7th February, 1943, in accordance with the Local Government Act, 1933, and that the within written matter is a true and faithful copy thereof. (Signed) . . . Dillwyn Miles . . . Clerk of the Llanfair Community Council’. This certificate must be written or endorsed upon the same sheet, or one of the sheets of the copy which it certifies. It may sometimes be necessary to add identifying words after the word ‘matter’ such as marked DM1, DM2 and DM3.

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7.41 Meetings and procedure of a local council

Minutes which are not drawn up or signed in accordance with the law are not receivable in evidence. For public rights of inspection see 11.9 below. 1 Local Government Act 1972, Sch 12, para 41(3). 2 Local Government (Miscellaneous Provisions) Act 1976, s 41.

S SIGNING AND SEALING 7.42 A local council may have a common seal but if it has none it may execute documents requiring a seal under the hands and seals of two of its members1. Naturally such execution must not take place without the authority of a resolution, but the law neither requires that the resolution shall name the members concerned nor that the formalities shall be performed in the presence of the council, but the sealing of the documents must be witnessed and in practice the best witness is the clerk. Where there is a common seal it is advisable and usual to lay down arrangements for its custody and use by standing order. A private person acting on his own behalf no longer has to seal a deed2, but a council still must; therefore in a deed between a local council and a private individual, the council must seal it or have it sealed by two of its members, but the individual need not. 1 Local Government Act 1972, s 14(3). 2 Law of Property (Miscellaneous Provisions) Act 1989, s 1(1). An example of a pointless change.

T BRIBERY AND CORRUPTION 7.43 The statutory provisions relating to bribery and corruption are contained in the Bribery Act 2010, which replaces the Public Bodies Corrupt Practices Act 1889 and related legislation. It is an offence for a person (‘P’) to offer, promise or give a financial or other advantage to another person in either of the following cases. Case 1 is where P intends the advantage to induce the improper performance by another person of a relevant function or activity or to reward such improper performance. Case 2 is where P offers, promises or give a financial or other advantage to another person and knows or believes that the acceptance of the advantage would itself constitute an improper performance of a relevant function1. What constitutes improper performance is, in essence, a breach of an expectation that a person will act in good faith, impartially or in pursuance of a position of trust. A relevant function is any function of a public nature (and thus includes the functions of a local authority), any activity connected with a business, with employment or carried on by a body of persons (corporate or unincorporate). In order to decide whether a function or activity is performed improperly, the test is what a reasonable person in the United Kingdom would expect in relation to that functiom or activity2. Prosecution of an offender requires the consent of the Director of Public Prosecutions, or the Director of the Serious Fraud Office, or the Director of

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Committees—voting and non-voting members 7.45

Revenue and Customs Prosecutions3. The maximum penalty on summary conviction for an individual is a fine not exceeding the statutory maximum (currently £5,000) and for conviction on indictment a term of imprisonment not exceeding 10 years, or a fine, or both. The penalties on conviction for any other person (e.g. a body corporate such as a local authority) are same as for an individual without the option of a prison sentence4. It is an offence for an officer of a local authority to accept any fee or reward other than his proper remuneration. The maximum penalty on summary conviction is a level 4 fine5. 1 Bribery Act 2010, s 1. 2 Bribery Act 2010, ss 3–5. 3 Bribery Act 2010, s 10. 4 Bribery Act 2101, s 11. 5 Local Government Act 1972, s 117(2).

U DISTURBANCES AT MEETINGS 7.44 Anyone (whether a member of the council or of the public) who disturbs the proceedings may be required by resolution to withdraw. It is not desirable for such a resolution to be moved until the chairman has at least once requested the offender to desist and the request has been ignored. Where the chairman’s request has been disregarded, the resolution should be moved automatically and without comment by the senior councillor able to do so, though legally any councillor or the chairman may move it. Mere heat or anger in discussion is not of itself a ground for excluding a member, but almost any interruption by the public is technically a disturbance. An offender who refuses to obey the resolution may be removed by force, but care should be taken to use no more force than is necessary. It is usually desirable (but not legally necessary) to secure the help of the police. A resolution of exclusion ought not to extend to future meetings1. 1 Barton v Taylor (1886) 11 AC 197.

V COMMITTEES—VOTING AND NON-VOTING MEMBERS 7.45 Committees and joint committees1 may be appointed and they may appoint sub-committees. The council or councils concerned settle the area, if restricted, within which the committee is to operate and the number of its members. All the members of a ﬁnance committee must be members of the appointing council or councils. In other committees with executive functions non-members may be appointed but save in four cases the non-members have no vote. These four are the management of land, harbour functions if the council is a harbour authority, tourism functions and the management of a festival2. Advisory committees need have no council members at all. A committeeman who is a member of an appointing authority ceases to be a committeeman if he retires from the council, unless already re-elected3. The disqualiﬁcations for membership of a local council committee are the same as those for the local council4.

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7.45 Meetings and procedure of a local council

A council can arrange to have any of its functions, except the issuing of precept, exercised by a committee which can, in turn, arrange to have them exercised by a sub-committee5. At least when exercising functions (as opposed merely to giving advice) a committee must consist of more than one member6. 1 For uses of joint committees see 23.8 below. 2 Local Government and Housing Act 1989, s 13 and Parish and Community Councils (Committees) Regulations 1990, SI 1990/2476. 3 Local Government Act 1972, s 102. 4 LGA 1972, s 104. 5 LGA 1972, s 101. 6 R v Secretary of State, ex p Hillingdon London Borough Council [1986] 1 All ER 810. It is otherwise in the House of Lords.

W CONTROLLED, INFLUENCED AND REGULATED COMPANIES 7.46 Some local authorities find it convenient to carry on activities through a company rather than directly. Companies and trusts which are controlled or influenced by local authorities (including local councils acting individually or jointly or through joint committees) are subject to a code whose purpose is to secure that the company’s activities are treated financially as part of the council’s activities. The legislation breaks down the legal screen between the council as one corporation and the company as another wherever the company is subject to the council’s will. The rules apply to any limited or unlimited company together with any society registered under the Industrial and Provident Societies Act 1965. If such a body is for the time being a subsidiary or a subsidiary of a subsidiary of the council, or if the council controls a majority of the shares or appoints or removes a majority of the directors, the company is a controlled company; if the control touches in either case 20 per cent rather than a majority but more than half of the company’s turn- over is derived from the council, it is an influenced company. Such orders also apply pari passu to non-charitable trusts which are similar in character. The main sanction is that expenditure or other financial transactions in defiance of orders may become illegal. Such a regulated company must print on all its operative documents and stationery the fact that it is controlled by a local authority or authorities, naming it or them. Directors who are members of such an authority must not be paid more as total remuneration or as travelling or subsistence allowances for a given company duty than the most which they could receive from an authority alone. The state of the company’s finances must be reported by the company or its auditor to the authority’s auditor or, as the case may be to the Au- dit Commission, and also sufficiently to any member of a relevant authority for the purpose of his duties, and it must obtain the Commission’s consent to its first appointment of an auditor. A controlled company must make the minutes of its first four general meetings available to the public. Special rules on capital transactions fill out the principle that the company’s finances are to be treated as part of the controlling authority’s finances. In general, company capital receipts including grants from the European Union, credit transactions or variations in liabilities which can be

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Complaints against local councils 7.48

made by a council as such, are treated as having been made by the council unless the funds concerned come from the same local authority group or have been disposed for charitable purposes. The council must have credit cover equivalent to the totals of these transactions, if the total exceeds £10,000. There are also rules on credit approvals, the calculation of liabilities and their relationship to the value of transferred shares, and on dealings between councils in a group and on the apportionment of the value of transactions between councils. Companies (called arms-length companies) and trusts which are emancipated from the council’s inﬂuence, for example by the appointment of irremovable directors, cease to be caught by the legislation1. Part V of the 1989 Act is repealed and replaced by Part 12 of the Local Government and Public Involvement in Health Act 2007 from a date to be appointed. 1 Local Government and Housing Act 1989 Part V and Local Authorities (Companies) Order 1995, SI 1995/849 (as amended).

X COMPLAINTS AGAINST LOCAL COUNCILS

England 7.47 In England, a local council is not subject to investigation by the local government ombudsman. A complaint about the conduct of a clerk or other employee should be pursued through the council. A complaint about the council itself can best be dealt with, if not through the ballot box, then through a complaints procedure which the council adopts and makes known to the public. The National Association of Local Councils has promulgated a model code of practice for handling complaints. If the complainant is not satisﬁed about the council’s handling of a complaint, his ultimate remedy (if any) lies through the ballot box at the next election.

Wales

7.48 In Wales, community councils are subject to investigation by the Public Services Ombudsman for Wales (see 21.15 below). In addition, all employees of Welsh local authorities are subject to a code of conduct (the Code of Conduct (Qualifying Local Government Employees) (Wales) Order 2001, SI 2001/2280). However, as a matter of common sense and good practice, a community council would be well advised to consider the advice offered above.

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