Independent persons

For the benefit of ACSeS members and their authorities ACSeS has sought the opinion of Clive Sheldon QC on the independent person issue (as well as on the lawful scope of potential sanctions) and his advice has now been issued.

In his opinion, ‘the better reading of the legislation’ is that former independent members ‘are not permitted to serve as independent persons within a period of five years from their previous service.’ This because ‘on a literal reading of the legislation’ the independent member of the standards committee was a ‘co-opted member’ of the authority for the purposes of section 49(7) of the 2000 Act, and the same applies to the 2011 Act’.

Whilst this is an entirely justifiable interpretation given the way the statutory drafting has been framed, personally I do wonder whether Parliament did at the time specifically intend to deprive authorities of the valuable experience of former independent members when seeking candidates to perform the analogous (although admittedly different) role of independent person under the Localism Act.

Whilst Counsel does acknowledge this, he nevertheless remarks that: ‘On the other hand, it can be said that the new standards regime is designed to mark a break with the previous regime, and so it is not surprising if there are to be differences in approach.’

However, it does seem to me less likely that there was at the time a conscious and settled Parliamentary intention to deprive authorities of valuable relevant objective experience and it looks more likely that this situation has resulted from an oversight in statutory drafting.

Whilst clearly in literal terms standards committees are committees of the authority in question, nevertheless standards committees under the Local Government Act 2000 are a specific statutory creation for specified purposes and are (shortly to be were) not part of what might be called the mainstream and general functional fabric of the authority as are those committees appointed under section 102 of the Local Government Act 1972.

I took a purposive approach in my blog of 8 December 2011 in an endeavour to assemble some practical sense out of what appears to be an unfortunate situation and it seems to me that this approach has some conceptual coherence. It is hoped that the Government may introduce appropriate transitional provisions to ease difficulties somewhat in bridging the gap.

Dr. Nicholas Dobson is a Senior Consultant with Pannone LLP specialising in local and public law is also Communications Officer for ACSeS. He can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it.; Twitter: @nicholasdobson.

© Nicholas Dobson

Related courses on...

Public Law Developments

Local authority powers are a moveable feast and some recent decisions have provided some illumination of where the limits lie, even after the general power of competence is introduced by the Localism Act.

Watch a preview

Preview is shown smaller than actual size.