Danger zones for councillors
Who can be a councillor?
Subject to the rules on disqualification, a person is qualified to be a councillor if he or she is a Commonwealth citizen (which includes a British subject) or a citizen of a member state of the European Union, is over 18 and is an elector for the parish or community where s/he seeks election (at the time of writing, it is not clear if EU citizens will continue to be able to vote after the UK leaves the EU). In addition, a person is qualified if they have either during the whole of the 12 months before the day on which they are nominated as a candidate, or the day of election, resided in the parish or community or within three miles of it; or occupy land or premises there as owner or tenant; or have their only or principal place of work there (work includes being a councillor for the place in which a person seeks re-election – Parker v Yeo (1992)).
In summary, a person is disqualified if they hold a paid office under the council (e.g. the clerk); have been made bankrupt or made a composition or arrangement with their creditors; have within five years before election, or since election, been convicted of an offence and sent to prison for at least three months; are guilty of corrupt or illegal practices relating to elections; or have been disqualified for breach of the Code of Conduct.
Why become a councillor?
The following might be reasons:
(a) to help run the council
(b) to represent the electors
c) to use the position of councillor to advance policies
(d) to improve or change the parish or community
(e) to defend the parish or community against threats
(f) to take up electors’ problems.
The role of the councillor
Depending on the reasons for becoming a councillor, his or her role will involve one or more of the following:
(a) to manage a small- or medium-scale enterprise, i.e. to:
- fix a budget
- make management policy decisions
- issue guidance to and control staff (usually part-time)
- check that policy decisions taken by the council are carried out
- suggest new openings for enterprise;
(b) to ensure that the views of the parish or community on any matter are put to the relevant persons or bodies and that its special interests are protected or promoted, i.e. to:
- take decisions about what are the interests of the area
- decide how to advance those interests
- keep in touch with constituents
- be seen to be acting in the interests of the locality
- publicise the activities of the council.
To prepare for the role outlined above, a councillor needs to:
(a) be aware of new possibilities by keeping in touch with current events in the local council world (e.g. by reading Clerks & Councils Direct and other relevant publications)
(b) keep aware of what is happening in the locality and the implications of this
c) have an enquiring mind and be ready to use it
(d) take a lead in local affairs
(e) have some idea of the goals the council seeks to achieve.
Legal responsibilities
A councillor must:
(a) obey the council’s Code of Conduct
(b) not take any paid appointment from the council while a councillor or for 12 months after ceasing to be a councillor.
The council is a corporate body with a legal personality separate from its members. Consequently, individual councillors are not liable for the adverse consequences of decisions made by the council, save in exceptional circumstances. In order to guard against the unlikely eventuality of personal liability, a council should always seek advice before embarking on a course of conduct about which councillors have doubts.
Danger zones for councillors
In carrying out their tasks councillors need to be aware of possible dangers which, if ignored, could lead to difficulties both for the council and for councillors themselves.
Examples of dangers to be avoided include the following scenarios:
(a) Deciding on action not within the lawful powers of the council e.g. completing the financial package by reclaiming VAT on money donated to a project by users of the village hall or accepting a loan from a friendly district authority even though the local council holds no credit approval for the loan. Potential result: having to refund the VAT in a later year; having to satisfy the audit by repaying the loan.
(b) Changing plans during the execution of a project by e.g. ordering more building work orally without consultation with colleagues. Potential result: being unable to challenge the builder's invoice for extras though certain they were not all ordered and being repudiated by the council when seeking the cash to meet the bill.
c) Acting on assumptions that have not been checked e.g. that a track passing a village hall is a public vehicular right of way and building a car park at its end. Potential result: having to pay to buy the right of way or see the car park investment wasted.
(d) Cutting out bureaucracy by making a “simple” agreement with others whom “we know” to let them use council property. Potential result: being unable to prevent the others from doing what they want with the property or even get them out to re-let to anyone else.
(e) Saying things about opponents and their actions that turn out to be untrue or irrelevant. Potential result: threats of libel proceedings; demands for apologies and compensation against a councillor.
(f) Bringing complaining letters or other communications to the council without checking if they tell the full story and reading them in public. Potential result: threats of libel against the council; demands for copy documents.
(g) Missing the vital factor in a situation e.g. that no-one has any right to use a village green for any purpose except lawful sports and pastimes.
(h) Taking up assumed popular causes and raising them at all possible times. Potential result: turning every other member against oneself so that no issue is ever taken seriously by colleagues.
(i) Checking on what is being done by the council in close detail. Potential result: a large audit bill for the council because you can nearly always find an (unimportant) irregularity that can be blown up into an issue demanding investigation.
(j) Ignoring procedural rules e.g. by failing to make a declaration of acceptance as a chairman or refusing a recorded vote. Potential result: losing the chairmanship or provoking a judicial review against the council.
(k) Failing to recognise a personal involvement. Potential result: breaking the Code of Conduct, leading to investigations, complaints and disputes.
Avoiding danger zones
Taking the following steps when appropriate will help to avoid danger zones:
(a) Consider all the parts of a project or a campaign together. Do not make piecemeal decisions (if, for example, deciding to borrow, also at the same time decide on how to pay back).
(b) Check that the clerk has got all the necessary advice and has consulted the appropriate advisers about a project.
c) Ensure that the clerk has all the basic advisory tools: e.g. Arnold-Baker on Local Council Administration, the Code of Conduct, standing orders, Clerks & Councils Direct, Governance and Accountability for Smaller Authorities in England: A Practitioner’s’ Guide or Governance and Accountability (Wales) – Practitioners’ Guide.
(d) Do not ignore advice because it is inconvenient or you cannot believe that the clerk has got it right.
(e) Have all decisions clearly recorded in writing, particularly instructions to others which will require a payment to be made.
(f) Never cut procedural corners, however tedious they may seem. It is always worth doing it right.
(g) Always ask yourself before speaking in public or writing on a public matter: Do I need to say this? Is it true? (If it is a comment:) Is it necessary, appropriate and reasonable? Only a triple “yes” justifies an open mouth.
(h) Never read out (or circulate) the full text of someone else's writing except where you are sure that every word is either true or necessary relevant comment. Extract the necessary facts only for publication.
(i) Consider all the aspects of a situation: the first answer may not be the best.
(j) Do not become a bore.
(k) Do not try to catch out other councillors.
(l) Accept that when a decision has been made, even if you think it is the wrong one, you move on to other issues. Democracy includes recognising when you have lost.
(m) Never pretend to yourself (or assert to others) that a matter of personal interest is a public issue.
(n) Remember that a councillor is always on parade and should never be liable to be found wanting.
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Written by Paul Clayden, expert in local council law
As appeared in Clerks & Councils Direct, May 2019
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