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For COVID’s sake, get me to the polls on time!

Timothy Straker QC and Katharine Elliot analyse current law regarding local authority change of governance referendums, including in light of the COVID-19 pandemic.

Forms of governance

Under the Local Government Act 2000 (“LGA 2000”), a local authority must structure its governance in one of the following ways (s.9B, LGA 2000):

(a) An executive arrangement: This executive will be led by either an elected mayor or a councillor elected by the local authority, who will in turn appoint two or more councillors to serve on the executive alongside them. The mayoral style executive is referred to as a ‘mayor and cabinet executive’ and the elected councillor style as a ‘leader and cabinet executive’. The executive will be subject to the scrutiny of at least one oversight committee;

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(b) A committee system; or,

(c) Other arrangements as may be prescribed by the Secretary of State (referred to as “prescribed arrangements”).

Changing the status quo: The law pre-COVID-19

A local authority may change its existing form of governance in favour of an alternative structure (s.9K, LGA 2000), or, where it operates under an executive arrangement, may vary that arrangement from one form of executive (e.g. leader and cabinet) to another (e.g. mayor and cabinet) (s.9KA, LGA 2000) [1]. In order to effect such a change, a resolution must be passed, after the holding of a referendum on the proposed change if necessary, in accordance with Chapter 4, LGA 2000 (s.9O, LGA 2000).

Referendum before Resolution

There are two scenarios in which a local authority’s own proposed change of governance will first need to be approved in a referendum before a resolution can be passed and that proposed change implemented (s.9M, LGA 2000):

(i) Where the proposed change is a change from one form of governance, or from one form of executive to another and the existing form of governance was approved in a previous referendum (s.9M(2), LGA 2000); or

(ii) The local authority has passed a resolution that the proposed change is to be subject to approval in a referendum (s.9M(3), LGA 2000).

In either case, once it is clear that a referendum must be held, the local authority must draw up proposals for the change to be put forward for approval, including a timetable for its implementation and any transitional arrangements which will be required (s.9MA(1)-(3), LGA 2000). The timetable must be designed to ensure that the proposed change, if approved, can take effect at the relevant time under s.9L(2), LGA 2000. Where the local authority is not already operating under a mayor and cabinet executive system, the ‘relevant time’ for the change in governance will be the first annual meeting of the local authority to be held after the post-referendum resolution (see below) is passed or a later annual meeting of the local authority as specified in that resolution (s.9L(4), LGA 2000).

Having drawn up these proposals, the local authority must take steps to draw them to the attention of the public by making copies available for inspection at its principal office and by publishing a notice in at least one local newspaper setting out the proposals and the opportunity to inspect them (s.9MA(7), LGA 2000).

A successful referendum (i.e. one in which the local authority’s proposals are approved) must then be held before the resolution approving the change can be passed or any steps can be taken to implement the proposed changes (s.9MB(2) and (3), LGA 2000). The resolution must be passed within 28 days of the date of the referendum at a meeting which is specially convened for that purpose (s.9MB(4) and (5), LGA 2000). It is not open to the local authority to change its governance proposals after they have been approved in a referendum (s.9MF(4) and (5), LGA 2000).

As soon as practicable after passing the resolution, a local authority must draw it to the attention of the public by making it available for inspection at the local authority’s principal offices and by publishing the appropriate notice in at least one local newspaper (s.9KC(2), LGA 2000).

Petitioning for change

Members of the public may also petition the local authority to seek a referendum on whether the authority should have a different governance arrangement (s.9MC, LGA 2000). The petition process is governed by the Local Authorities (Referendums) (Petitions) (England) Regulations 2011/2914 (the “2011 Regulations”), which provide that a local authority shall hold a referendum where they receive a valid petition seeking a change of governance.

As soon as reasonably practicable after receipt of such a petition, the local authority shall (reg 11, 2011 Regulations):

(i) Consider whether there are grounds for amalgamating multiple petitions if applicable (see below);

(ii) Notify the petition organiser of the petition date, usually the date on which the petition is received by the local authority (see reg 3, 2011 Regulations, under ‘petition date’, for more details);

(iii) Before the end of the one-month notice period starting from that petition date, satisfy themselves as to the validity of the petition (see below); and,

(iv) If the petition is valid, notify the petition organiser that a referendum will be held (reg 13(1), 2011 Regulations). If the petition is invalid, the petition organiser should be informed of this decision (reg 14(1), 2011 Regulations).

A petition shall be a valid petition if it (reg 9(1), 2011 Regulations):

(i) Is signed by a number of local government electors that is not less than the applicable verification number, which is the number which represents 5 per cent of the number of local government electors for the local authority area in question (reg 4, 2011 Regulations). For the purposes of assessing compliance with this requirement, signatures where the name, surname and address of the signatory are omitted, duplicate signatures, and signatures added 12 months before the petition date are to be disregarded (reg 9(3)-(5), 2011 Regulations); and,

(ii) Satisfies the requirements of regulation 10, 2011 Regulations as to formalities; and,

(iii) Is presented to the local authority to whom it is addressed on a day other than one which falls within a moratorium period.

If a petition has not been signed by a sufficient number of local electors (i.e. equal to or more than the applicable verification number), multiple petitions relating to the same area and governance change may be amalgamated and treated as one petition either before they are presented to the local authority (reg 8(1), 2011 Regulations) or by the local authority following receipt (reg 8(2), 2011 Regulations).

Regardless of whether a petition is valid or invalid, a copy of the petition must be made available for public inspection at the local authority’s principal office for a period of six years from the petition date (reg 12, 2011 Regulations). The local authority must also take steps to draw the petition, and, if the petition is valid, the upcoming referendum, to the attention of the public by publishing a notice compliant with regulation 13(2), 2011 Regulations, in the case of valid petitions, and regulation 14(2)-(3), 2011 Regulations, in the case of invalid petitions.

In most cases, a referendum in consequence of a valid petition shall be held no later than the end of the next ordinary day of election (i.e. the first Thursday in May of each year (see s.37 Representation of the People Act 1983)) after the petition date (reg 16(1), 2011 Regulations), unless it falls within 4 months or less before the next ordinary day of election, in which case it will be held no later than six months from the petition date (reg 16(2), 2011 Regulations).

The local authority must then prepare for the referendum and, if the change is endorsed by the electorate, implement it in the usual way (regs 17-19, 2011 Regulations).

The impact of COVID-19

Pursuant to s.61, Coronavirus Act 2000, the Local Government and Police and Crime Commissioner (Coronavirus) (Postponement of Elections and Referendums) (England and Wales) Regulations 2020/395 (the “2020 Regulations”) came into force on 7 April 2020 to postpone various elections and referendums until 2021.

In relation to referendums initiated by local authority proposals (regulation 12(1)) or as a result of a valid petition (regulation 12(2)), the 2020 Regulations provide that: “a referendum…that would otherwise be held, or have been held, during the relevant period [16 March 2020 to 5 May 2021 (see reg 4, 2020 Regulations)] is to be held instead on the ordinary day of election in 2021”.

In relation to the submission of petitions, the 2020 Regulations amended regulation 9 of the 2011 Regulations with the effect that (reg 12(3), 2020 Regulations): “a petition shall not be valid if it is presented to the local authority to whom it is addressed on a day which falls within a moratorium period or with the period beginning 16 March 2020 and ending with 5 May 2021…” (emphasis added).

Notwithstanding the fact that all petitions submitted to a local authority after 16 March 2020 will therefore automatically be invalid as a result of this amendment, officers will still have to carry out the process required for responding to invalid petitions (see reg 11, 2011 Regulations), as set out above.

In terms of petitions submitted before 16 March 2020, regulation 12(3), 2020 Regulations acts to prevent their validity from being ‘eroded’ due to the passage of time by providing that the relevant period of 16 March 2020 to 5 May 2021 is to be disregarded when assessing the number of signatures as against the verification number.

The legislative adjustments for this area are not as clear as we might hope (for example, in relation to the provision of copies of documents for inspection at times of national or local lockdown). However, the intention, namely that the social interaction needed to garner signatures for a petition or vote in a referendum should be avoided at this time, is clear. An argument is currently being pursued that one can petition so as to secure a referendum on 6 May 2021, when the relevant period ends. This argument appears optimistic, but its outcome has yet to be determined by the Courts.

Timothy Straker QC and Katharine Elliot are barristers at 4-5 Gray’s Inn Square.

[1] A local authority may also be ordered to hold a referendum on changing to a mayor and cabinet executive governance structure (see 9NA, LGA 2000). This type of referendum is not within the scope of this article.

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