Absent without leave

St Paul in his letter to the Corinthians (at 1.5.3) declared himself ‘absent in body, but present in spirit’. However, that would not work for any local authority member who, without council approval, fails to attend any council meeting throughout a period of six consecutive months from the date of their last meeting attendance. Why? Because section 85(1) of the Local Government Act 1972 (LGA 1972) says so.

However, that does not necessarily mean attendance at a full council meeting. For section 85(2) extends member attendance at a meeting of the authority to include (among other things) attending any meeting of a council committee, sub-committee, joint committee, joint board or other body for the time being discharging any authority function. It will be recalled, per Lord Templeman in Hazell v Hammersmith and Fulham London Borough Council [1992] 2 AC 1, that functions embrace ‘all the duties and powers of a local authority; the sum total of the activities parliament has entrusted to it’.

No doubt therefore (per section 111 of the LGA 1972), section 85(2) would also include anything calculated to facilitate, conducive or incidental to the discharge of such functions. But attendance, for instance, at an informal meeting having no reasonable nexus to the discharge of authority functions would presumably be insufficient for section 85(2). Similar provisions in section 85(2A) and (2B) cover executive members in authorities operating executive arrangements.

Fortunately, for those needing to get their heads around the complexities of these provisions within Part V of the LGA 1972, in May the Association of Electoral Administrators issued a handy four-page guidance document, Casual Vacancy – Failure to attend meetings. This guidance, which ‘sets out the appropriate actions to take when a member fails to attend any meeting for six consecutive months’, has also been endorsed by Lawyers in Local Government and the Association of Democratic Services Officers. And for those needing to lift the bonnet for a peek at the statutory engine, references are usefully footnoted.

The guidance helpfully highlights that while a member ceases this position by relevant meeting attendance failure, this does not automatically create a casual vacancy for electoral purposes. For (by section 86(1)(c) of the LGA 1972) the authority must in these circumstances ‘forthwith’ (that is to say, immediately after the person has ceased to be an authority member) declare that person’s office to be vacant. But who can declare the vacancy and how?

The guidance advises that provided that the authority’s ‘proper officer’ has been given the requisite power under the council’s constitution (which the guidance believes is ‘good practice’ since it facilitates a timely vacancy declaration), the proper officer can (and should) do this immediately after the six-month deadline has passed. The document also recommends that, as a minimum, all remaining council members should be informed of this and confirmation should be posted on the council’s website. By section 270(3) of the 1972 act, ‘proper officer’ means the officer appointed for the particular purpose in question. But if no such powers have been granted to the proper officer, the guidance indicates that the vacancy must be declared at a duly authorised council meeting. Once the vacancy has been declared, suitable public notice of the vacancy should be given by posting the notice conspicuously within the council area or otherwise as the authority considers desirable for publicising the notice (section 232(1) of the LGA 1972).

But when does the vacancy election have to happen? Section 89(1)(a) requires an election to fill a casual vacancy to be held within 35 days from the date of the declaration, excluding dies non juridicus. These are days on which no legal business is transacted and include (among others) Sundays, and statutory or bank holidays (see section 243(1) and (4) of the LGA 1972).

Where a casual member vacancy occurs otherwise than where the council has declared the office vacant as indicated, by section 89(1)(b) of the LGA 1972, an election must be held within 35 days ‘after notice in writing of the vacancy has been given to the proper officer of the authority by two local government electors for the area’.

However, as the guidance points out: ‘There are no grounds for two local government electors for the local authority area to give written notice to the proper officer requesting the election where the vacancy is the result of a member’s failure to attend meetings. There are also no grounds for two local government electors to request an election to fill the vacancy during the period between the councillor ceasing to be a member and the council declaring the vacancy. The reason being that there is no vacancy to be filled until the council have declared it.’

For principal area councils, paragraph 5.1 of the guidance deals with where a vacancy occurs within six months of the member’s ordinary day of retirement. For by section 89(3) of the LGA 1972, an election shall not be held unless by the vacancy or vacancies ‘the total number of unfilled vacancies in the membership of the council exceeds one third of the whole number of members’. Where there is no election the vacancy is to be filled at the next ordinary election.

Vacancies for parish and community councils are dealt with in paragraphs 4.3-4.5 and 5.2 of the guidance in line with rule 5 of the Local Elections (Parishes and Communities) (England and Wales) Rules 2006 (SI 2006 No. 3305).

The guidance will undoubtedly be helpful for busy local authority lawyers and other officers practising in this area. For although statutes are definitive, they can sometimes take users on a wearisome and obscure scenic trek. However, the short guidance document should accessibly cover most relevant situations and keep processes properly on track.

Nicholas Dobson writes on local authority law and governance