Council meetings and the passing of the Queen

Richard Harwood KC considers whether the Queen’s death affects the holding of Council meetings, in particular whether mourning affects the periods for giving notice of meetings.

How Her Majesty’s life and its passing should be marked is a matter of sense and judgement. Local authorities have a particular representative role and also have their normal business to conduct. The national guidance on mourning emphasises:

“There is no obligation on organisations to suspend business during the National Mourning period. ... Public services will continue as usual, although there may be some changes to service availability”

There has been some discussion whether local government legislation prevents councils from holding meetings or affects the ability to give notice of such meetings. The day of Her Majesty’s State Funeral is to be a bank holiday. That day will need to be discounted when notice periods are being calculated for the holding of meetings. More general mourning at the present time does not affect meetings or the notice period.

The National Association of Local Councils, which represents parish and town councils, has said that the period of mourning (taken from the Queen’s death on 8th September) to the end of the funeral day prevents notice being given. That is incorrect.

District, borough, county and unitary councils in England have to give five clear days’ notice of council and committee meetings. [1] County or county borough councils in Wales have to give three clear days’ notice. Parish, town and community councils are subject to a three clear days’ requirement. [2] The courts have interpreted clear days as meaning ‘working weekdays’. [3] By implication these clear days also exclude bank holidays and other public holidays. 

The NALC say:

“Section 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. Had the three clear days’ notice for a council meeting not been completed by [the day the period of mourning began], the next day to be counted is [day after funeral/ mourning period not including Sundays].”

Section 243 contains several provisions on calculating time, but starts with subsection (1):

“Where the day or the last day on which anything is required or permitted to be done by or by virtue of any provision to which this subsection applies is a Sunday, day of the Christmas break, of the Easter break or of a bank holiday break or a day appointed for public thanksgiving or mourning, the requirement or permission shall be deemed to relate to the first day thereafter which is not one of the days specified above.”

Subsection (4) later refers to when ‘a day is declared to be a bank holiday or day of public thanksgiving or mourning’. ‘A day appointed for public thanksgiving or mourning’ is not defined in legislation, although it is a term used in various statues, particularly relating to election law. The declaration of a bank holiday is made by ‘Her Majesty… by proclamation’ under the Banking and Financial Dealings Act 1971. [4] Those proclamations are published in the Gazettes, which are the official government newspapers in London, Edinburgh and Belfast.

On 10th September, at the Accession Council meeting, the new King agreed that the day of his mother’s funeral would be a bank holiday. That would be proclaimed under the Banking and Financial Dealings Act 1971 once the date is finalised.

Days of public thanksgiving or public mourning have been declared by Royal proclamation for a particular day, for example, celebrating the battle of Trafalgar or the end of the Crimean War. A day of public mourning was appointed by a proclamation of King George V for the death of Edward VII in 1910. The day was to be ‘observed as mentioned in’ section 4 of the Bank Holidays Act 1871 and was appointed in pursuance of the provisions of that Act. Section 4 of the 1871 Act said, as relevant:

“It shall be lawful for Her Majesty, from time to time, as to Her Majesty may seem fit, by proclamation, in the manner in which holidays by solemn fasts or days of public thanksgiving may be appointed, appoint a special day to be observed as a bank holiday”

The 1871 Act did not contain the power to appoint days for ‘solemn fasts’ or thanksgiving, but said that bank holidays would be proclaimed in the same manner. The 1871 Act was repealed by the Banking and Financial Dealings Act 1971 which makes no reference to thanksgiving, mourning or solemn fasts.

There has been no proclamation of an appointment of a day of public mourning for Queen Elizabeth II. The order for general mourning was made by the Earl Marshall, the Duke of Norfolk:

“THE EARL MARSHAL’S ORDER FOR GENERAL MOURNING FOR HER LATE MAJESTY QUEEN ELIZABETH II

This is to give public notice that to give all persons the opportunity to mark the present occasion of the death of Her Late Majesty Queen Elizabeth II of blessed memory a period of mourning is hereby instituted which will last until after Her Late Majesty’s Funeral.

NORFOLK,

Earl Marshal”

It was not made by the King, is not a proclamation and refers merely to a ‘a period of mourning’. It does not use the language of ‘day appointed for public … mourning’ which is contained in legislation. Had the order been intended to have the legislative consequences, it would have used the legislative wording.

Consequently, there has been no day appointed for public mourning for the purposes of section 243 of the Local Government Act 1972. The declaration of a bank holiday on the day of State Funeral would have effect for those purposes and for applying ‘clear working days’ in the notice periods.

Local authorities can continue to hold meetings and give notice in accordance with the conventional calendar and five or three clear working days. The day of the Queen’s funeral is omitted from the calculation.

In any event, the effect of section 243 is quite limited. Sub-section (1), quoted above, merely means that if the last day to do something is a Sunday, or the relevant Christmas, Easter, bank holiday or thanksgiving or mourning days can be done on the next available day. It does not affect the computation of time generally, but merely moves the last day. It could be said that the effect of section 243(1) is to reduce the notice period, on the basis that the last day for sending out notice is moved to the next day. However the provision is concerned with extending time – protecting those affected – rather than reducing protections. The better view is that the notice period counts only working days. These would exclude Saturdays, Sundays, bank holidays and (it if happened), days appointed for public thanksgiving or mourning. The day of the State Funeral would not therefore count as part of the period. Section 243(1) would not apply since even if the last day in the period was the day of the funeral, the meaning of clear working days, would mean that it would be the following day in any event. So s 243(1) does not have any practical effect in this context.

Days appointed for public mourning are not included in counting the period for holding certain polls or dealing with casual vacancies amongst council members: see s 243(4). That sub-section does not affect the periods for giving notice of council meetings.

Consequently councils can continue to send out notices of meetings and to hold those meetings during the period of national mourning. The day of Her Majesty’s funeral, as a bank holiday, is excluded from the calculation of the notice period.

Richard Harwood KC is a barrister at 39 Essex Chambers.

[1] Local Government Act 1972, ss 100B, 100E.

[2] Local Government Act 1972, Sched 12, para 10(2).

[3] R v Swansea City Council ex p Elitestone [1993] EGLR 212.

[4] Banking and Financial Dealings Act 1971, s 1(2),(3).