NALC Legal update April 2021

NALC Legal Update – April 2021

 Welcome to the latest legal update. We hope you had a good Easter break.

 Legal team update

The period since the February legal update has been one of change for the team, both in terms of our team structure and work.

 As you will be aware, Jane is now covering Charlotte’s maternity leave as the head of member services. This inevitably means that Jane will not be available to do as much of the day to day legal work. Gary has increased his hours and is now doing three days a week, with additional hours as required. Gurvynda will be going on maternity leave at the end of this month. We are looking at different approaches for cover arrangements.

 Our response rate to individual requests is roughly 4-6 days. As I’m sure you will appreciate, our responses may now take longer than this but within 15 working days. We would ask that questions are sent to the legal inbox rather than individuals so they are not missed.

 Work wise, the team has been actively involved in the Lawyers in Local Government (LLG)/ Association of Democratic Services Officers (ADSO)/ Hertfordshire County Council remote meetings court proceedings against the Secretary of Sate for Housing, Communities and Local Government. We decided it was important for our sector that NALC join proceedings as an interested party and we do what we can to enable the continuation of remote meetings. This has been a big time commitment and has required quickly becoming familiar with the relevant and unfamiliar litigation processes and procedures. We have now submitted witness evidence for Jonathan as NALC Chief Executive. This means that Jonathan can be called upon to give oral evidence at the one-day Administrative Court hearing on 21 April. The matter was transferred to the Administrative Court and is now a Judicial Review case.

 Being an interested party also means that we receive all of the other parties’ submissions. We also attend the weekly meeting of the sector working group, with representatives from LLG, ADSO, the LGA and others. We will of course update as and when we are able to do so. Judgment is expected before the end of April.

Period of national mourning and s.243

 We confirm our advice that s.243 of the Local Government Act 1972  excludes days of mourning for clear days calculation purposes – it is the period of notice that is affected. MHCLG’s position is that the period of mourning began last Friday – 9 April – which technically makes it nine days. Had the three clear days’ notice for a council meetings not been completed by last Friday, the next day to be counted is next Monday (19 April).

 Councils are not prevented from holding meetings where the relevant three clear days has been satisfied. The period of mourning does not make meetings themselves unlawful.

Council by-elections – holding of the annual meeting

A few of you have asked us if a council that has by-election(s) has to hold its annual meeting in accordance with the timeframes for a normal election year. The answer is no.

Paragraph 7 (1) of Schedule 12 to the Local Government Act 1972 provides that a parish council shall in every year hold an annual meeting. Paragraph 7 (2) says in a year which is a year of ordinary elections of parish councillors, the annual meeting of a parish council shall be held on, or within fourteen days after, the day on which the councillors elected at that election take office, and in any other year the annual meeting shall be held on such day in May as the parish council may determine.

 A by-election does not constitute an ordinary election.

This may apply to a number of councils given the postponement of elections until 6 May for casual vacancies under the relevant Covid Regulations (see NALC Legal Briefing L03-20. 

No council elections – holding of the annual meeting

We have also been asked if a council which does not have elections can hold its annual meeting on election day (6 May) when there are local elections elsewhere, e.g. principal authority and Police and Crime Commissioner elections. The fact of other elections would not preclude a parish council meeting on that day. Indeed it is advisable for councils to meet remotely while they know they still can.

 Annual council meeting dates

 We have also been asked about calculating the dates for when councils with elections can hold their annual meeting in accordance. Our view of paragraph 7 of Schedule 12 to the 1972 Act (wording set out above) is that councillors will take office on Monday 10 May, making the relevant 14 day meeting period Tuesday 11-Wednesday 26 May inclusive.

 You may recall that the 2019 elections calculation involved a bank holiday Monday so the computation differed. This is an area where we are aware there have been different interpretations of the computation of days. We have not counted Sundays in our 14 day calculation.

Muting meetings – disruptive behaviour

We recently heard of a scenario where a council struggled with disruptive members of the public. There is nothing to prevent the clerk from muting such persons. Good practice is to control all microphones centrally (clerk or chair) and to ensure that participants (including the public and press) are muted at the beginning and their microphones only switched on when they indicate that they want to speak. The various remote meeting software systems have a lot of useful facilities to control behaviour.

Recent activity

Since the last update we have reissued LTN 37 on Freedom of Information. Legal Briefing L01-21 on pre-election publicity has also been reissued. 

37-Freedom-of-information 

L01-21 Code of Recommended Practice on Local Authority Publicity (England)

Gary attended the Oxfordshire ALC Larger Councils’ meeting on 24 March and delivered a legal update on subjects including procurement post Brexit and remote meetings. On 10 March Jane took part in an LLG panel with colleagues from other sector bodies on standards and remote meetings.

 Gary and Jane are attending Yorkshire LCA training events next week on matters code of conduct and legal update.

 

Posted Wednesday, 4th August 2021