16 November 2017

High Peak Borough Council Leader’s Illegal Secret Ballot Scheme Thwarted

Should the Leader of a council with a £10 million budget of public money promote or be involved with law-breaking?

That is the situation residents of the High Peak find themselves in today as a result of antics of Conservative Leader of the Borough Council Tony Ashton.

Councillor Tony Ashton is a Conservative councillor on both High Peak Borough Council and New Mills Town Council within the borough.

Cllr Ashton proposed a policy for co-options of new members of the town council that requires secret ballot to be the method of voting during council meetings when co-options are being decided.  Cllr Ashton proposed this illegal policy to the New Mills town council meeting of 11 September 2017.

An up-front definition of the most important term used in this article:  Illegal: Forbidden by law.

Here is why Cllr Ashton’s policy is illegal

The relevant extract of Cllr Ashton’s policy:

“Paragraph 5:  Councillors shall vote by secret ballot under the agenda item.”

The law that governs the method of voting during town and parish council meetings is the Local Government Act 1972, Schedule 12, Paragraph 13: “13 (1)  Unless otherwise provided by the council’s standing orders the manner of voting at meetings of a parish council shall be by a show of hands.”

The law refers to a council’s formal standing orders.  The relevant part of the New Mills Town Council’s standing orders is paragraph 3 (q):  “Unless standing orders provide otherwise, voting on a question shall be by a show of hands. At the request of a councillor, the voting on any question shall be recorded so as to show whether each councillor present and voting gave his vote for or against that question…"

Councillors Tony Ashton and Ray Atkins have erroneously claimed that the council’s standing orders have somehow “been changed”.  To prove that they haven’t, here is the standing order specifying the method which must be used if the New Mills town council wishes to change its standing orders:

“Standing Order 25 (b):  A motion to add to or vary or revoke one or more of the council’s standing orders, except one that incorporates mandatory statutory requirements, shall be proposed by a special motion, the written notice by at least 6 councillors to be given to the Proper Officer in accordance with standing order 9 above.”

At no time during this matter has the necessary written notice by at least six councillors been given to the town council’s Proper Officer.  Therefore it is a fact that no change has been made to the council's standing orders.

New amendment, same illegal voting method

When Cllr Ashton’s illegal co-option policy came to the vote, an amendment proposed by LibDem Cllr Ray Atkins was carried.  Unfortunately, this amendment also included the fatally flawed ‘secret ballot’ method of voting in New Mills town council meetings:

“Councillors shall vote by a show of hands under the agenda item, unless two or more councillors request a secret ballot, in which case voting on the co-option process shall be by secret ballot.”

First council meeting following the illegal new policy

On 13 November 2017 came the first attempt to use the illegal co-option policy in New Mills council chamber  – illegal because of the prohibited ‘secret ballot’ method of voting that it contains.

What transpired was as follows:

The town council chairman read out Item 7 on the agenda, which was: ‘Co-option applications and decision for a Councillor for Whitle Ward’

Cllr Lance Dowson read out his prepared statement, published yesterday on HPT.

Chair of the council Barry Bate started to explain what would happen in this agenda item.  There were three candidates for one seat.  Ballot papers were prepared with the three names on.

The Town Clerk then held up the tenth (latest) edition of Arnold-Baker on Local Council Administration for all councillors to see.  This is a fat volume with a striking yellow cover.  The Clerk read out, verbatim, the part of that authoritative book which explains lawful voting during town and parish council meetings.

When voting time came, no-one present in the room seemed overtly interested in having a secret ballot.  It would have been pointless if they had, because Cllr Lance Dowson explicitly exercised his legal right as a councillor to require a named vote on the agenda item.

Accordingly, all votes on the co-option candidates were by show of hands.  This is how it must be on a well-run local council.  We don't need to report who voted for whom; that is not the point  of all this.

Here comes the 'Jerry's Final Thought' bit:

The fact that every councillor has the legal right at all times to a named vote on any decision being made by a council showed up the ultimate futility of this ‘secret ballot’ plot.

Unnecessary reputational and political self-harm was caused, and all for no benefit.

We look forward to the time we are able to report that the current illegal, unlawful co-option policy of New Mills town council has been corrected to comply with both the law and also with the openness and accountability standards that are now required of those in public life.

All that is needed to accomplish this is to strike out the sentence(s) in the policy that refer to ‘secret ballot’ as the method of voting.

And finally…

Welcome successful candidate Joyce Tyldesley to membership of New Mills town council.

15 November 2017

Authoritative NALC Verdict On New Mills Town Council's Co-options Debacle

Esteemed HPT readers will be aware of the co-options mess that New Mills town councillors got themselves into following the 2015 local elections.

At those elections, only six councillors were elected to the council's twelve places.  Where not enough members have been publicly elected to a town or parish council, the law permits that council to internally co-opt new members to fill the vacant places.

Following the co-options debacle, extensively covered here on HPT since the local elections, here is the recent letter sent to New Mills Town Council by the specialist local government solicitor employed by the National Association of Local Councils:

"Client: New Mills Town Council
Subject Matter: Co-option

"I have been allocated this request to advise upon and I have seen your emails dated 4 and 6 September 2017 together with an undated four page summary of the co-option process with attachments labelled 1(a) to 1(i) and 2(a) to 2(d); an extract of the Town Council Standing Orders; a copy of Town Council minutes 2015/138 to 2015/140; an email dated 13 May 2015 from the Town Clerk to the Town Council Chair and a four page document containing recommendations from Councillor Diana Ruff and Councillor Sue Bean on behalf of the Derbyshire Association of Local Councils.

"The issues in this request is whether it was valid for the Town Council to co-opt councillors without allocating them to specific Wards and whether it was appropriate to co-opt an applicant who was not available for interview. I will deal with these questions in that order.

"New Mills Town Councillors represent a Ward and it is not possible to have any Town Councillors who do not represent a Ward. At the co-option process five councillors should have been co-opted for Ollersett Ward from those that applied for that Ward. I understand that only one application was for Thornsett Ward and if that person was not considered suitable, then the vacant position of Town Councillor for Thornsett Ward should have been re-advertised to find additional applicants. It was not appropriate to co-opt an applicant for the Ollersett Ward into a position reserved for the Thornsett Ward. When the Thornsett Ward vacancy was re-advertised it would have been permissible for an unsuccessful candidate for the Ollersett Ward to apply for Thornsett Ward if they wished.

"As the co-option process was by interview it was inappropriate for a candidate to be co-opted despite the fact that they had not been available for interview. In doing so the Town Council operated an unfair process which was in breach of the Town Council's own resolution as to how to process the applications. As you have correctly identified it was not possible to reverse that decision except by special motion on notice as under Standing Order 7.

"However, Section 82 of the Local Government Act 1972 states that the actions of a person elected as a councillor will still be valid despite them not being qualified. Although the point has not been decided by a court it is highly likely that this provision also covers councillors who were co-opted by a faulty procedure. As a result, the actions of the co-opted councillors are not invalid and council business has not been damaged. Nevertheless, there were serious failings in the co-option process and those failings must be remedied.

"I note that at the meeting for the co-options there were six councillors attending and a further six were co-opted making twelve councillors in all. I note from the High Peak Borough Council website that there are currently ten councillors so I assume that there are two vacancies for the Town Council to fill, either by election or by co-option. One the vacancies should be assigned to Thornsett Ward so a validly elected or co-opted councillor can be found for that Ward. The remaining unallocated councillors should all be allocated to Ollersett Ward to ensure that all Wards are represented by the correct number of councillors. Every councillor must be representing a Ward.

"For future co-options a policy should be adopted by the Town Council to ensure that co-option takes place to specific wards on the basis of the ward applied for by a co-option candidate. The Town Council should also adopt a policy guaranteeing a fair process applied to all candidates for any position with the Town Council.

"I hope that this clarifies the position but if the council requires any further information or advice please contact NALC again.

Yours sincerely

Gary Barker
National Association of Local Councils
109 Great Russell Street

Statement by Cllr Lance Dowson to the New Mills Town Council meeting of 13 November 2017

Latest edition of the town and parish council bible

As the New Mills town council chairman was about to start discussion on Agenda item 7 "Co-option applications and decision for a Councillor for Whitle Ward" , Cllr Lance Dowson read out the following statement.

Because Cllr Dowson's statement on this issue supports the public good of transparency and openness in local government, it is published here to promote wider public understanding:

"I wish to make a statement about the next agenda item:  the co-option of a councillor onto this council to represent Whitle ward.

"I will be taking no part in any debate or discussion regarding any of the applicants because, as I said at the meeting of the 11th September when council adopted this Policy, I believe that by implementing and using this policy you, as councillors, are not complying with the Local Government Act 1972, Schedule 12 Para 13 (1) which states that 'unless otherwise provided by the councils standing orders voting at a meeting of the parish council shall be by a show of hands'

"The relevant part of New Mills Town Council’s standing orders is:-
“3 - meetings generally... (c) - 'unless standing orders provide otherwise voting on a question shall be by a show of hands'

"NALC’s Legal Topic Note 5 of February 2015 (Paragraph 60):-
'A secret ballot is permissible only if standing orders so permit'

"The town clerk's advice that she offered you, as your proper officer, at the 11 September 2017 meeting when you adopted this policy.

"I believe, therefore, that you are not following the relevant legal statutes, the councils policies and not taking notice of, and following, the legal and professional advice offered to you.

"I would point out that, I believe, a policy which includes any degree of secret voting, such as the one that you are about to implement, is not in the public interest and by implementing and following such a policy councillors are not acting in the public’s best interests by not being as open and transparent as possible and thereby enabling residents to understand the reasoning behind the decisions that you make, and by restricting access to information when the wider public interest or the law requires it.

Thank you."