Landmark Chambers Barrister Jacqueline Lean
wrote “I am asked to advise West Lancashire Borough Council (“the Council”) as to whether the urgency powers delegations contained in the Constitution could be used in order to avoid the automatic vacation of office by a Councillor who has not attended Council Meetings since 16 October 2019”.
Jacqueline Lean has a cross-discipline practice, encompassing property, planning and public law. She is identified as a leading junior in Administrative & public law (including local government. She was appointed to the Attorney General’s ‘B’ Panel of Junior Counsel to the Crown in September 2015.
She wrote 5 pages of advice including “By s.85(1) of the Local Government Act 1975, if a member of a local authority fails to attend any meeting of a local authority for a six month consecutive period, his (or her) office becomes vacant, unless that non-attendance is dispensed with prior to expiry of the six month period. S.81(1) is in the following terms: “(1) Subject to subsections (2) and (3) below, if a member of a local authority fails throughout a period of six consecutive months from the date of his last attendance to attend any meeting of the authority, he shall, unless the failure was due to some reason approved by the authority before the expiry of that period, cease to be a member of the authority”.
“I understand from my instructions that requests for dispensation, under s.85(1), would ordinarily need to be considered by Full Council, but that no meeting is currently scheduled, or could be convened, before the end of the 6 month period. 5. Under the Council’s Constitution, the Chief Operating Officer is authorised to exercise the following (inter alia) delegated powers: a. “To take any action on behalf of the Council, following consultation with the Leader and relevant Portfolio Holder or the Chairman of the appropriate committee, in cases of urgency requiring immediate decisions, and where it would be unreasonable or impractical to convene a meeting.” (Proper Officer Provisions and Scheme of Delegation to Chief Officers etc (Constitution 4.2 to 4.2C) para 4.21)…”
Readers will be surprised to know that she wrote, as above, that “I am asked to advise whether these powers could be exercised to avoid the automatic vacation of office for Cllr Hodson pursuant to s.85 of the 1972 Act. I am also asked to confirm the date on which the vacation of office would otherwise take effect, and any consultation (etc) requirements that should be observed”. [WLBC has not previously published any information that they sought a view on avoiding the automatic vacation of office for Cllr Hodson].
Ms Lane stated “I would also advise that a brief report be prepared, outlining: The material facts, The relevant legislative provisions, The powers being relied on under the Council’s constitution, Confirmation that the Leader/relevant Portfolio Holder / Chairman of the appropriate committee has been consulted; and The recommendation.
She wrote about “The starting point is s.85(1) itself. This provides that an individual ceases to be a member if he or she “fails throughout a period of six consecutive months from the date of his last attendance to attend any meeting of the authority” (underlining added as emphasis). The general position is that where a statute provides for a period to run “from” a certain date (as opposed to “beginning on” or “with” a certain date) that day is excluded from the calculation – that is, the period begins on the following day: see, for example, Dodds v Walker  1 WLR 1061 (CA), Zoan v Roumba  1 WLR 1509. Applying that general position to the present case, that would mean that the six month period commenced on 17th October 2019. Having regard to the ‘corresponding date’ rule2 , I consider that this would mean the six month period expired on 16th April 2020. On the basis that a person required to perform an action within a specified period would usually have until midnight on the last day to perform that action, I consider that the six month period would, technically, expire at midnight on 16th April 2020 (ie midnight 16/17 April 2020)”.
And finally “However, given that a dispensation from the requirements of s.85(1) needs to be given (if it is to be given) before the expiry of the six month period, that the statute does not, at least in its terms, allow a retrospective dispensation to be granted, and the point I have noted in para 13 above, it would be advisable for any decision on dispensation to be taken on 15th April 2020, if at all possible”.
To be fair to council tax payers, in follow up, we have written to WLBC “Thank you for your speedy reply with the information you have disclosed. Of immediate concern to council tax payers is that of WLBC employing Counsel at Landmark Chambers for advice on the case of Cllr Gail Hodson. Will you please respond with some urgency quoting the total cost to council tax payers of employing Barrister Jacqueline Lean for her advice.
“I note the consultation responses from Cllr D Westley, I Moran, A Owens, and G Owen (Mayor), and ask if council taxpayers were entitled to participate in the consultation, and where is the advice on who to consult?
“It seems that “In accordance with the Council’s procedures, the Council’s Democratic Services Manager, Mrs Jacky Denning, e-mailed Councillor Hodson on 26 February 2020 “to remind her of the provisions of the section 85(1) of the 1972 Act. No reply was received and no subsequent attendance was recorded. A further reminder was sent to Councillor Hodson and the Council Leader advised. A (Full) Council meeting, (where all council members are summoned to attend) was due to be held on 1 April 2020. However, due to the outbreak of coronavirus the meeting was cancelled. 1.3 On 15 April 2020 Councillor Hodson advised Mrs Denning that she intended to attend the Council meeting on 1 April 2020 but, due to its cancellation, had been unable to”.
“Did WLBC consider that there was some negativity inasmuch as there was no response until AFTER the 1st April meeting, retrospective in respect of the 15th April WLBC received the response?
“Is there any thought by anyone at WLBC that these cases, Cllr Currie and Cllr Hodson, will astonish council taxpayers at the seeming ease with which they do nothing and we pay everything?”.