Legal obligations of local councils
Councillors, as democratically-elected leaders representing their communities, have a unique role to play in enabling the local engagement which will drive strong, connected communities what we
sometimes refer to as ‘neighbourhood and community engagement’.
Alongside their discretionary powers, town and parish councils have a number of legal obligations to fulfill:
• They must hold an annual meeting and at least three other meetings each year.
• They must appoint such officers as they believe necessary for the proper discharge of their functions – this may be an unpaid councillor, but in most cases will be a parish clerk and/or treasurer.
• They must make standing orders for the supply of goods and services to the council.
• They must adhere to local government legislation.
What do town and parish councils do?
Town and parish councils have discretionary legal powers and rights to take action. And while their responsibilities are more limited than those of your own council, they play a vital part in representing the interests of local people and improving the quality of life and the local environment. On top of this, they can influence other decision makers and can, in many cases, deliver services to meet local needs.
The services delivered by these councils can include planning, highways, traffic, community safety, housing, street lighting, allotments, cemeteries, playing fields, community centres, litter, war memorials, seats and shelters and rights of way. And as part of the localism agenda, they are being encouraged to play an even greater role in their communities.
The delivery of some of these services may be subject to various consents, from, for example, the owner of land or another public body such as the highways authority. Significantly, town and parish councils have an unfettered right to raise money for the services they provide by precept (which is a mandatory demand) on their district council. The precept required is then collected by this collection authority as part of the Council Tax levied on local tax payers in that parish. Like you, parish councillors are required to act ethically in carrying out their role. Most local councils have their own code of conduct and require councillors to act openly and honourably in the public interest. They must also do nothing to bring their council into disrepute and must never use their position to secure personal advantage for themselves, their family or friends. Like you, they must declare any personal or prejudicial interests as part of this ethical framework.
The Role of Parish Council Clerk
The parish council Clerk is the ‘engine’ of an effective parish council. He or she is its principal executive and adviser and, for the majority of smaller parish councils, is the officer responsible for the administration of its financial affairs. The Clerk is sometimes a council’s only employee. The Clerk is required to give clear guidance to Councillors, including the Chair, before decisions are reached, even when that guidance may be unpalatable. The Clerk has a key role in advising the council, and Councillors, on governance, ethical and procedural matters. They must also liaise with the Monitoring Officer at the district/unitary council on ethical issues and the Councillors’ Register of Interests. Some larger councils employ a range of administration and support staff and the Clerk is normally responsible for advising the council on staffing provision and managing the recruitment process. In smaller councils the Clerk may also carry out the role of the Finance Officer. However, it is common, especially in larger councils, for a separate Responsible Finance Officer to be appointed and given specific duties relating to the budget, annual accounts and audit to ensure proper financial management and transparency. Many parish councils encourage their clerks to seek professional recognition for the work that they do. A qualified Clerk is one of several pre-requisites for a parish council achieving Quality Council status and also in becoming a council eligible to exercise the power of wellbeing. The Clerk is an independent and objective servant of the council who takes instructions from the corporate body and must recognise that the council is responsible for all decisions. In an emergency (e.g. to cover a temporary vacancy) a Councillor may fulfil the role of Clerk to the parish council (this must be unpaid (see below)). However, it is not good practice for Councillors to do this as it confuses Officer/Member roles. It should be noted that Councillors may not be paid employees of their council (as there is an unacceptable conflict of interest) and may not become employees of their former council until at least 12 months after ceasing to be a Councillor (Sections 112(5) and 116 Local Government Act 1972). 11 Signposting on Employment Issues Some headline issues are set out below, but legal advice should always be sought on particular applications or circumstances. Further sources of information are listed below: • There is no requirement to have any particular employees, but someone needs to be designated as the Officer responsible for financial affairs. Usually, this will be the Parish Clerk; • The Parish Clerk must be an employee of the parish council, not an independent contractor or self-employed person; • The duties and terms and conditions of employment (including pay) should be set out in writing as soon as possible after appointment and within 13 weeks after the start of the employment; • Officers who are paid must be appointed on merit; • Councillors can be Officers but they cannot be paid. Giving Councillors such a role should be considered only in an emergency. Also, a former Councillor cannot be appointed to a paid office until 12 months have passed since being a Councillor of that council; • There should be written procedures for disciplinary and grievance issues (there is an ACAS Code of Practice); • Continuous service of 12 months entitles an employee to redundancy payments and to the right not to be unfairly dismissed. A series of temporary contracts is aggregated for this purpose; • Discrimination laws operate to protect individuals at the time of appointment and during employment. They cover direct and indirect discrimination on the grounds of sex, marital status, colour, race, nationality, ethnic or national origins, age and disability. Harassment and bullying also fall under this umbrella. It is also unlawful to discriminate on the grounds of religion or belief; • Employees have protection under the Public Interest Disclosure Act 1998 in respect of “whistle-blowing”. The National Association of Local Councils and the Society of Local Council Clerks have negotiated a National Agreement on Salaries and Conditions of Service for local council clerks in England and Wales and negotiate annually on a salary award. A Model Contract of Employment and Job Description have also been agreed together with a Guide to Good Employment Practice in Local Councils. Parish councils and their Clerks may secure the advantages of these agreements through membership of their county association of local councils and the Society of Local Council Clerks respectively. Further Information: The Advisory, Conciliation and Arbitration Service (ACAS) – www.acas.gov.uk The Information Commissioner – www.informationcommissioner.gov.uk The Audit Commission www.auditcommission.gov.uk The human resources section of the district or unitary council may also be able to offer assistance.
The Clerk to the Council will be the Proper Officer of the Council and as such is under a statutory duty to carry out all the functions, and in particular to serve or issue all the notifications required by law of a local authority’s Proper Officer. *The Clerk will be totally responsible for ensuring that the instructions of the Council in connection with its function as a Local Authority are carried out. *The Clerk is expected to advise the Council on, and assist in the formation of, overall policies to be followed in respect of the Authority’s activities and in particular to produce all the information required for making effective decisions and to implement constructively all decisions. The person appointed will be accountable to the Council for the effective management of all its resources and will report to them as and when required. *The Clerk will be the Responsible Financial Officer and responsible for all financial records of the Council and the careful administration of its finances.
- To ensure that statutory and other provisions governing or affecting the running of the Council are observed.
- To monitor and balance the Council’s accounts and prepare records for audit purposes and VAT. * Or to monitor the work of a designated other officer designated the Responsible Financial Officer.
- To ensure that the Council’s obligations for Risk Assessment are properly met.
- To prepare, in consultation with appropriate members, agendas for meetings of the Council and Committees. To attend such meetings and prepare minutes for approval. *Other than where such duties have been delegated to another Officer.
- *To attend all meetings of the Council and all meetings of its committees and subcommittees. *Other than where such duties have been delegated to another Officer.
- *To receive correspondence and documents on behalf of the Council and to deal with the correspondence or documents or bring such items to the attention of the Council. To issue correspondence as a result of instructions of, or the known policy of the Council.
- To receive and report on invoices for goods and services to be paid for by the Council and to ensure such accounts are met. To issue invoices on behalf of the Council for goods and services and to ensure payment is received.
- *To study reports and other data on activities of the Council and on matters bearing on those activities. Where appropriate, to discuss such matters with administrators and specialists in particular fields and to produce reports for circulation and discussion by the Council.
- To draw up both on his/her own initiative and as a result of suggestions by Councillors proposals for consideration by the Council and to advise on practicability and likely effects of specific courses of action.
- To supervise any other members of staff as their line manager in keeping with the policies of the Council and to undertake all necessary activities in connection with the management of salaries, conditions of employment and work of other staff.
- To monitor the implemented policies of the Council to ensure they are achieving the desired result and where appropriate suggest modifications.
- To act as the representative of the Council as required.
- To issue notices and prepare agendas and minutes for the Parish Meeting: to attend the assemblies of the Parish Meeting and to implement the decisions made at the assemblies that are agreed by the Council.
- To prepare, in consultation with the Chair, press releases about the activities of, or decisions of, the Council.
- To attend training courses or seminars on the work and role of the Clerk as required by the Council.
- To work towards the achievement of the status of Qualified Clerk as a minimum requirement for effectiveness in the position of Clerk to the Council.
- To continue to acquire the necessary professional knowledge required for the efficient management of the affairs of the Council: Suggested is membership of your professional body The Society of Local Council Clerks.
- To attend the Conference of the National Association of Local Councils, Society of Local Council Clerks, and other relevant bodies, as a representative of the Council as required. *Delete as appropriate
The Role of the Chair
The main rules of law governing the role of the Chair of a parish council are set out in the Local Government Act 1972, principally within Schedule 12, which sets out, for example:
- that the Chair must preside at a meeting of the parish council if he or she is present and;
- that it is the person who presided at the meeting who has the responsibility to sign the minutes as a true record.
It is the duty of the Chair
“to preserve order, and to take care that the proceedings are conducted in a proper manner, and that the sense of the meeting is properly ascertained with regard to any question which is properly before the meeting”
National Dwellings Society v Sykes (1894)
It is the Chair’s responsibility:
(a) To determine that the meeting is properly constituted and that a quorum is present;
(b) To inform himself as to the business and objects of the meeting;
(c) To preserve order in the conduct of those present;
(d) To confine discussion within the scope of the meeting and reasonable limits to time;
(e) To decide whether proposed motions and amendments are in order;
(f) To formulate for discussion and decision questions which have been moved for the consideration of the meeting;
(g) To decide points of order and other incidental questions which require decision at the time;
(h) To ascertain the sense of the meeting by:
(i) Putting relevant questions to the meeting and taking the vote thereon (and if so minded giving a casting vote);
(ii) Declaring the result; and
(iii) Causing a ballot to be taken if duly demanded;
(i) To approve the draft of the minutes or other record of proceedings (with the consent of the meeting);
(j) To adjourn the meeting when circumstances justify or require that course; and
(k) To declare the meeting closed when its business has been completed
“Knowles on Local Authority Meetings” (ICSA Publishing)
During the meeting, if a vote on a matter is tied, the Chair, or other person presiding, has a second or casting vote. Whilst it is a convention in some councils that the Chair will not vote when a matter is put before the meeting and will only use his or her casting vote, there is no rule of law on this and it is becoming a practice little followed. Some councils apply a convention that the Chair will use his or her second or casting vote in a way to support the status quo and keep the 88 question open for reconsideration at a later date, which is generally considered to be best practice. The Chair’s term of office continues until the appointment of a successor, other than where the Chair resigns or is disqualified. This continuity also applies when the Chair has not been re-elected following local elections. In this case, the Chair does not have a vote on the appointment of a successor but does have a casting vote in the event of equal votes.
Outside of the Meeting:
- is the person to whom notice of resignation is given by other Councillors or the Clerk;
- may convene meetings of the council (on proper notice to the Clerk);
- when attending ceremonial events, is the proper person to represent the parish;
- may receive an allowance to meet the expenses of his or her office.
Beyond that, the workings and decisions not taken by the council or through the delegation scheme, by one of its committees or sub-committees are to be taken by the Clerk to the parish council. The Chair may have an enhanced role, as functions may be delegated to the Clerk in consultation with the Chair (or the Chair of a Committee). This means that the decision and the responsibility for it, remains with the Clerk (not the Chair) but that he or she must first bring the matter to the attention of the Chair and take into account the views of the Chair in coming to his or her decision. It is also likely to be the case that the Chair will be the person whom the Clerk will approach;
- for information about the council and the parish;
- to seek to informally discuss matters with and;
- to informally consult on decisions that are in the Clerk’s remit to make or pass back to a formal meeting.
- Correspondence to and from the council should normally be dealt with by the Clerk, not by the Chair, although, where there are no other administrative staff, the Chair will be the most appropriate person to deal with correspondence in the absence of the Clerk e.g. to sign letters giving effect to a council decision, or to send a ‘holding’ reply pending consideration of a matter by the council.
What Parish Councillors Do
Parish Councillors have a dual role:-
• They represent the views and concerns of the residents of the Parish to the Parish Council itself and, through it, to the District, County or Unitary authority;
• They report back to residents on issues affecting the Parish.
The formal part of these roles, especially the first one, is carried out by attending meetings and corresponding with the Parish Clerk. The Parish Council might have committees and even sub-committees. This is more likely to be the case in larger councils. Individual Councillors do not have, and cannot be given, powers to make decisions on behalf of the Parish Council. This applies to the Chairman as much as to the other Councillors, although the Chairman does have personal responsibilities in connection with the running of formal meetings.
The less formal part of listening and talking to people, including the local elected members of the District, County or Unitary Council, almost certainly will take up more of the councillor’s time. However, it is important to remember that “rules of behaviour” apply whenever activities of being a Parish Councillor are being undertaken.
What follows in this Part is a series of advice notes or briefings intended to assist Councillors to avoid pitfalls which can catch the unwary in the carrying out of what might seem the most straightforward of activities. The briefings also will help Parish clerks to advise their Councillors both inside and outside meetings and to induct newly-elected or co-opted Councillors.
The requirement to complete a register of interests caused some controversy when it was extended to Parish Councillors but it is a crucial element of complying with the Code of Conduct. In rural parishes or those centred on smaller settlements in particular, the risk of Councillors being affected by personal or prejudicial interests can be quite high. Also, it can be difficult to maintain an appropriate distance from local lobby or campaign groups. This is most likely to be the case in planning matters, an issue that should engage particularly those Councillors who are elected members of the local planning authority as well. Advice on these potential problem areas is included in the briefings.