Disqualification as an elected member

Geoff Wild provides a timely update on what disqualifies someone from being an elected member.

Quorum depends on ‘qualified’ members

I recently received an enquiry from a parish council member asking what was the minimum number of members required for a meeting to be quorate?

The quorum for parish council meetings is prescribed by the Local Government Act 1972, Schedule 12, paragraph 12. At a parish council meeting, any business transacted is invalid unless at least one-third of the council members are present, which cannot be fewer than three.

The one-third figure is calculated by reference to the number of members of the authority remaining qualified, rather than by reference to the whole number of members. The key word here is ‘qualified’. This provision is intended to meet the situation where a considerable number of members are disqualified. If seats are vacant for reasons other than disqualification, e.g. death or resignation, then these are taken into account in calculating the total number of members. Members who have died or resigned clearly must not be counted with members who are disqualified.

The quorum therefore depends on the reasons why membership numbers are what they are. If numbers have fallen by reason of resignation or death, the quorum is calculated by reference to the full membership. If one or more members have been disqualified, then they should not be counted in calculating a quorum (subject to there being a minimum of three).

This then led onto a broader discussion as to what exactly qualifies – or disqualifies – a person from being an elected member.

Qualification and Disqualification

The issue is all about public trust in local government. Since councillors take strategic decisions that affect everyone’s lives, decide how best to use taxpayer money, and play a leading role in building and preserving a society where the rights and freedoms of individuals are respected, it is vital that these community champions have the trust of the electorate and only hold the position if they are suitably qualified.

In The Apprentice, when Lord Sugar wants someone out, he just has to point a finger and say: “You’re fired!” But that’s not the case with elected council members. Their capacity to hold and remain in office is regulated by statute and has been for well over a century.

Originally, under section 46 of the Local Government Act 1894 and later under section 59(1)(a) of the Local Government Act 1933, a person was only disqualified from being a member if they held any paid office under the council. Nowadays disqualification is more complicated and falls under four main headings:

1. Section 79 of the Local Government Act 1972 states that a person shall only be qualified to be elected as a member of a local authority if:

• they are a qualifying citizen of the Commonwealth, the Republic of Ireland or the European Union AND
• they are 18 years or over AND
• they are a local government elector for the area of the authority OR
• during the whole of the twelve months preceding their election they occupied as owner or tenant any land or other premises in that area OR
• their principal or only place of work during that twelve months was in that area OR
• during the whole of those twelve months they resided in that area OR
• in the case of a member of a parish council during the whole of those twelve months they resided either in the parish or within three miles of it

2. Under section 80 of the Local Government Act 1972, a person is disqualified from standing as a candidate or being a member of a local authority, if they:

• are in the paid employment of the local authority
• are employed by a company which is under the control of the local authority
• are subject to bankruptcy orders
• have, within 5 years before being elected, or at any time since being elected, been convicted of an offence and sentenced to imprisonment (suspended or not) for at least three months without the option of a fine
• are disqualified under Part III of the Representation of the People Act 1983 for corrupt or illegal practices
• are a teacher in a school maintained by the local authority

3. The Local Government (Disqualification) Act 2022 inserted a new section 81A into the 1972 Act, which disqualifies a person from being elected to or being a member of a local authority if they are subject to a sexual offences order or notification.

4. Section 85 of the Local Government Act 1972 states that if a member of a local authority fails throughout a period of six consecutive months from the date of their last attendance to attend any meeting of the authority (which now includes any remote or ‘virtual’ meeting), they 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.

5. Under section 34(4) of the Localism Act 2011, a court may disqualify an elected member if they are convicted of an offence of failing to notify the Monitoring Officer of a disclosable pecuniary interest (DPI) within 28 days, or of failing to disclose an unregistered DPI at a meeting, or of participating in a discussion or voting on a matter in which they have a DPI.

Note: whilst failing to notify or disclose a DPI is an offence, only the Crown Prosecution Service can prosecute and only the court can disqualify. So, even if a councillor does have a DPI, and they have committed an offence, unless they are convicted and disqualified by the court, they remain a full member of the council.

6. Under section 30 of the Elections Act 2022, a court may make a disqualification order preventing a person from being nominated for or holding elective office for 5 years, if they are convicted of an offence listed in Schedule 9 AND that offence is aggravated by hostility towards a campaigner, candidate or holder of elective office.

Grey areas

But what about a member who is subject to court-imposed anti-social behaviour sanctions, for example civil injunctions (under section 1 of the Anti-Social Behaviour, Crime and Policing Act 2014) or criminal behaviour orders (under section 22 of the Anti-Social Behaviour, Crime and Policing Act 2014) or convicted of harassment (under section 2 of the Protection from Harassment Act 1997)? Should these anti-social behaviour sanctions (not meeting the current three month imprisonment criteria) also disqualify those standing for election or holding office as a local authority member? The government consulted on this in 2017 but failed to reach a conclusion.

A recent case involving a councillor convicted for harassing officers and members of their authority highlights how the absence of appropriate standards sanctions available to local authorities can result in the criminal justice system being the only recourse. He was sentenced to 18 weeks in jail and subjected to a restraining order for four years, yet continued to hold his position as a member on Torridge District Council (at least until his period for appeal expired). 

Code of conduct

All elected members recognise that the Seven (Nolan) Principles of Public Life - selflessness, integrity, objectivity, accountability, openness, honesty, leadership - apply to them. But since the Localism Act 2011, the sanctions available to English local authorities for breaches of their codes of conduct have been considerably diluted, and no longer include suspension or disqualification. Nevertheless, although abolished in England, these provisions continue in Wales.

The most recent review of this area came in the form of a model code of conduct in response to a report of the Committee on Standards in Public Life, devised by the Local Government Association. However, whilst the code recommends the ability to temporarily bar a member from committee activities for a non-criminal breach of the code, it does not make provision for disqualification under any circumstances as this would require primary legislation.

The Government is proposing that councils should be able to suspend elected members for serious breaches of the code of conduct, with disqualification for multiple breaches and is currently consulting on strengthening the standards and conduct framework.

Geoff Wild is a Legal and Governance Consultant. He is celebrating his 40th anniversary as a local government lawyer.