The status of co-opted members

For many years, principal authorities have been able to appoint those who were not otherwise council members to committees in light of particular experience or expertise.

Whilst the Local Government Act 1972 does not use the term ‘co-opted member’, it nevertheless makes provision for the appointment of members who are generally (and sometimes mistakenly) known as ‘co-opted’. Section 102(3) enables a local authority committee (other than one for regulating and controlling the authority’s finance) to “include persons who are not members of the appointing authority”.

Non-councillors may be invited to sit on two different types of committee:

Committees set up to discharge the functions of a council are obliged to include at least one councillor (pursuant to s.102(3) of the 1972 Act). The remainder could potentially be non-councillors.
Advisory committees (pursuant to s.102(4) of the 1972 Act), known sometimes as working parties / groups / panels, may be set up to advise a council in any matter relating to the discharge of their functions. Such committees may be wholly comprised of persons who are not members of the council.

Co-Opted Members Required by Statute

Parent Governor and Arch/Diocesan representatives on committees exercising education functions are required by law (s.499(6) of the Education Act 1996 and the Parent Governor Representatives (England) Regulations 2001 for parent governors; and DfEE Circular 19/99 for diocesan representatives). These co-opted members have full speaking and voting rights in respect of any decisions relating to education and school matters. Parent governor representatives are elected by parent governors, but once co-opted their role is to be an apolitical voice for all parents in the area. The Church of England and Roman Catholic representatives are nominated by the relevant Bishop and Archbishop respectively.

The government announced in 2022 that councils would be required by law to have an Audit Committee with at least one independent member as part of the new system for regulating audit. While not legally required for all local authorities, CIPFA recommends having at least two independent members on Audit Committees, with backgrounds in accounting or risk management, to enhance the committee's effectiveness.

Disqualification

Section 102(3) and (4) of the 1972 Act provide that a person cannot be appointed as a non-councillor member of a committee if they would be disqualified from being elected or being a member of a local authority pursuant to Part V of the Act. Section 80 sets out the circumstances in which a person is disqualified from being a member of a council. In summary, a non-councillor cannot sit on a committee if they:

hold any paid office or employment to which they have been appointed by the council
is the subject of a bankruptcy restrictions order
have within 5 years before the day of election, or since their election, been convicted of any offence for which a sentence of imprisonment of at least 3 months has been passed (whether suspended or not) without the option of a fine
have been found guilty of corrupt or illegal practices or was responsible for incurring unlawful expenditure and the court orders their disqualification

Voting Rights

Section 49(7) of the Local Government Act 2000 and section 27(4) of the Localism Act 2011 define a ‘co-opted member’ as a person who is not a member of the authority but who is a member of any committee or sub-committee of the authority and who is entitled to vote on any matters which fall to be decided at any meeting of that committee or sub-committee.

Under section 13(1) and 13(7) of the Local Government and Housing Act 1989, non-councillor members under s.102(3) of the 1972 Act are to be “treated as non-voting members” of the council, unless they are members of:

a superannuation committee
an advisory committee under s.102(4) of the 1972 Act
an education committee
a school admission appeals committee

Most non-councillor committee members do not therefore fall into the category of co-opted members as they are not entitled to vote.

However, Schedule A1 paragraph 11 of the 2000 Act states that a local authority may permit a non-councillor member of an overview and scrutiny committee to vote (and thus be a co-opted member), but that permission may only be given in accordance with a scheme made and published by the council. A good example of such as scheme is at the London Borough of Croydon.

Code of Conduct

Are co-opted members bound by a council’s Member Code of Conduct?

Councils are under a duty to adopt a code of conduct under section 27 of the 2011 Act:

27 Duty to promote and maintain high standards of conduct

(1) A relevant authority must promote and maintain high standards of conduct by members and co-opted members of the authority.

(2) In discharging its duty under subsection (1), a relevant authority must, in particular, adopt a code dealing with the conduct that is expected of members and co-opted members of the authority when they are acting in that capacity.

This states that all co-opted members of a local authority are subject to the Code of Conduct adopted by the council. As we have seen, however, non-councillors are referred to in both the Local Government Act 2000 (s.49(7)) and the 2011 Act (s.27(4)) as 'co-opted members' only if they are entitled to vote on any question which falls to be decided at any meeting of the committee or sub-committee to which they are appointed. This means that non-voting non-councillor members are not automatically bound by the Code unless a council specifically makes compliance with the Code a condition on which non-voting members are appointed.

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

This is the latest in a series of articles Geoff has written – previous contributions include: