The power to regulate proceedings and place restrictions on councillor voting

Philip McCourt looks at a recent Court of Appeal case and what that means for committee members who aren’t present for a full item of business but may still wish to vote.

Many of our clients ask us about the position where elected Members step out of the council chamber or committee room during consideration and debate of an item of business on the agenda, but then return to take part when it comes to the question being put to the vote.

Our response is always that this is a matter of fact and degree. There is no formal requirement that a member must be present for the whole debate, just that at the time of the decision proper they must be ‘present and voting’ as is required by paragraph 39 of Schedule 12 of the LGA 1972. What it is, is a question of whether those voting have a sufficient grasp of the matter so as not to put the decision then made at risk of legal challenge. Behind that sits one of the key public law concepts of Wednesbury reasonableness, being that a decision maker must take into account all relevant considerations and, particularly important when looking at matters that affect someone’s contractual or civil rights, one of the two key concepts of natural justice, being that the decision maker should have heard all sides of the argument before making up their mind (or ‘audi alteram partem’ for those of a traditional bent).

In practical terms, the question is then not one of ‘yes or no’ but is one of asking whether, by not being present for whichever part of the introduction, public engagement, an officer’s advice or debate (or all of it in some scenarios) that a member has missed prior to the vote, that member’s absence will have put the meeting in a position that their decision would no longer be based on taking into account all relevant considerations and the result may be considered unfair? In the way of these things, the requirement on the legal advisor to step in when, in their opinion, any proposal, decision or omission by the authority is likely to give rise to a breach of law puts them in a difficult spot.

Addressing this can get quite interesting when we are dealing with policy debates, be much more straightforward and flexible when dealing with members’ motions on notice being debated at full council, but there has long been clear advice when it comes to a committee considering development control matters or licensing. This advice is given in Knowles on Local Authority Meetings (a manual of law and practice), at paragraphs 1.44 and 13.37, and in the Lawyers in Local Government (LLG) Model Members Planning Code. The LLG Model Members Planning Code, which has been adopted in one form or another by most local authorities and which, incidentally, was commended as offering sound practical advice by the Supreme Court, in this respect requires of a member that they:

“•  Don’t vote or take part in the meeting’s discussion on a proposal unless you have been present to hear the entire debate, including the officers’ introduction to the matter.”

A number of councils have gone further in expressly setting this out as a requirement in their standing orders. This includes Tower Hamlets LBC whose development committee procedure rules required that:

• “In order to [be] able to vote upon an item, a Councillor must be present throughout the whole of the Committee’s consideration including the officer introduction to the matter.”; and
• “Where an application is deferred and its consideration recommences at a subsequent meeting only Members who were present at the previous meeting will be able to vote. If this renders the Committee inquorate then the item will have to be considered afresh. This would include public speaking rights being triggered again.”

This was tested in court where upheld and, now, has been looked at as the single cause for appeal. R (on the application of The Spitalfields Historic Building Trust) v London Borough Of Tower Hamlets [2023] EWCA Civ 917 is well worth a read as a recital of the meaning of a local authority’s power to regulate its proceedings and business through the making of standing orders under paragraph 42 of Schedule 12 of the Local Government Act 1972.

The case confirms (as did all parties) that the reasoning for restricting the ability of councillors to vote was not irrational and was perfectly reasonable in Wednesbury terms where the determination of a matter was deferred to a later meeting, which in this instance was held on the other side of an election and annual meeting, so that only a handful of councillors were present at both meetings and thus, under these rules, only those handful could vote on the continuation and conclusion of considering the application. What was at issue was whether it was lawful at all to place such a restriction on a councillor’s ability to vote in a meeting using the provisions of Sched. 12 of the 1972 Act. The answer being that the concept of “proceedings and business” in paragraph 42 of Schedule 12 to the 1972 Act is ‘wide enough to cover the standing orders with which we are concerned in this case’ and ‘the phrase “proceedings and business” encapsulates both the activities of deliberation and voting which the committee conducts, and the procedure by which the conduct of those activities is regulated.’

We are pleased to hear this, not least because it also confirms that any such decision to introduce new standing orders remains a two stage process. That is, the use of the power to properly regulate itself through standing orders in the right place but, first, there is the rigour of understanding the full and fair reasoning as to why it would intend to do so, and the democratic implications of what was being proposed.

As we are currently assisting LLG in its refresh of the Model Members Planning Code, and I am fully intending to uphold my promise to provide a new edition of Knowles, we are also pleased that we do not all have to go through the process of wondering how to approach the question of how most authorities could sensibly go about their business in any other way.

Philip McCourt is a Legal Director at Bevan Brittan.