FROGMORE AND SHERFORD PARISH COUNCIL
Local Government Act 1972
Section 87(2)
CASUAL VACANCIES
NOTICE IS HEREBY GIVEN that two vacancies exist in the office of Parish Councillor for Frogmore and Sherford Parish Council.
Unless ten or more electors of the Frogmore and Sherford Parish, on or before the 15th November 2024, submit a request in writing for an election to be held, the Parish Council will take steps to fill the vacancies by co-option.
Requests must be sent to the Returning Officer, South Hams District Council, Follaton House, Plymouth Road, Totnes, TQ9 5NE.
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Introduction
This advice note explains matters relating to elections, both ordinary and casual, and the co-option of local councillors.
The Local Elections (Parishes and Communities) (England and Wales) Rules 2006 (“the 2006 Rules”) applies to the election of councillors to a parish or community council. Elections are run by the principal authority and there is no role for a local council in relation to ordinary elections. Where there is a casual vacancy (see paragraphs 10 to 15 below) the initial role of the local council is public notification of the vacancy. If an election is required to fill a casual vacancy, it is run by the principal authority. If no election is required the local council controls the process of co-option. Up-to-date information about the running of an election can be found on the Electoral Commission.
By-elections
A by-election of a whole council takes place:
- Where a new council comes into existence in a year other than that in which the principal authority councillor for the parish or community is elected – sections 89(2) and 95 of the Local Government and Public Involvement in Health Act 2007.
- Where an election is declared void following an election petition – section 135 of the Representation of the People Act 1983 (“the 1983 Act”).
- Where a principal authority orders a new election under reserve powers – section 39 of the 1983 Act.
A by-election to fill a particular vacancy can occur when the membership of the council is increased.
The remainder of this advice note covers situations in which the parish or community council has a role.
Costs of holding elections
The cost of holding a local council election is paid by the local council if the principal authority so requires. Where a local council election is combined with a principal council election, the cost of the combined polls (excluding the costs attributable solely to one election) is apportioned equally between the elections (section 36(3B) of the 1983 Act).
Insufficiency of candidates at an ordinary election
Section 21 of the Representation of the People Act 1985 provides that where an insufficient number of candidates is validly nominated at an ordinary local council election to fill the vacancies on the council, those who have been validly nominated are automatically elected as councillors. Provided that those elected constitute at least a quorum (three or one-third of the total number of councillors, whichever is the greater), the council (e.g. those elected unopposed) may co-opt any person or persons to fill the vacancies. If the power of co-option is not exercised within 35 days (in calculating which, Saturday, Sunday, Christmas Eve, Christmas Day, Good Friday, a Bank Holiday and a day appointed for public thanksgiving or mourning are excluded), the principal authority may then exercise its powers to hold a further election or to take other appropriate action to fill the vacancies. A principal authority has wide reserve powers to do anything necessary to constitute a council properly (section 39(4)(b) of the 1983 Act), including the temporary appointment of councillors pending a further election (section 91 of the Local Government Act 1972 (“the 1972 Act”).
Before exercising the power of co-option, the council does not have to give public notice of the vacancy or vacancies, although it may do so if it wishes. In practice, the giving of public notice is a sensible way to attract possible candidates for co-option.
Casual vacancies
According to section 87 of the 1972 Act, a casual vacancy occurs when:
- A councillor fails to deliver their declaration of acceptance of office at the proper time.
- A councillor resigns.
- A councillor dies.
- In the case of a councillor who is disqualified by virtue of a criminal conviction, under section 79 of the Local Government Act 2000 (Wales) or under section 34 of the Localism Act 2011 (England), the expiry of the period for making an application or appeal or, if an appeal or application has been made, the date that any such application or appeal process comes to an end.
- On the date of a report or certificate of an election court that declares an election void.
- A person ceases to be qualified to be a councillor for a reason not mentioned above.
- A councillor fails to attend meetings for six consecutive months.
Declaration of acceptance of office
In accordance with section 83(4) of the 1972 Act, on being elected to office, a councillor must sign a declaration of their acceptance of office in the presence of another councillor or the clerk. The declaration must be delivered before or at the first meeting of the council after the election or, if permitted by the council at that meeting, before or at a later meeting fixed by the council. If a councillor fails to deliver the signed declaration at the due time, they may vacate office, and a casual vacancy arises. There is no provision allowing a declaration to be delivered retrospectively. A councillor who is elected as the chair of a local council must sign and deliver a separate declaration of acceptance of the office of chair (see paragraph 27 below). In England, the declaration of acceptance of office is in the form prescribed in the Local Elections (Declaration of Acceptance of Office) Order 2012/1465. In Wales, the declaration of acceptance of office is in the form prescribed in the Local Elections (Declaration of Acceptance of Office) (Wales) Order 2004/1508.
Failure to attend meetings
Under section 85 of the 1972 Act, a councillor vacates office if they fail to attend a relevant meeting for six consecutive months after their last attendance unless, before the expiry of that period, the council approves a reason for their absence. The following constitute a relevant meeting:
- A meeting of the council or any of its committees or sub-committees.
- A meeting of a joint committee, joint board or similar body by which any of the council’s functions are for the time being discharged or which are advising the council on any matter relating to the discharge of its functions.
- A meeting of any body of persons at which the attendance of the councillor is as a representative of the council (e.g. the annual meeting of the county association counts as attendance at a council meeting).
A council cannot approve a reason for a councillor’s absence from a meeting if no reason is given. To record in the minutes of a meeting that a councillor was absent does not amount to approval for their absence. A councillor must give a reason for their absence from a meeting, and the minutes of that meeting must document that approval for a councillor’s absence was agreed by resolution and, where appropriate, the reason for absence.
Under section 87(2)(b) of the 1972 Act, in most instances of a casual vacancy arising, the local council must give public notice of it as soon as practicable after the casual vacancy is deemed to have occurred and in accordance with the requirements of section 232 of the 1972 Act. Section 232 confirms public notice of a casual vacancy is effected by the council giving notice in a conspicuous place(s) in its area and in any such other manner, if any, as appears to the council to be desirable for giving publicity.
Where a casual vacancy arises in any of the three circumstances set out below, the council must (i) forthwith declare the office vacant (unless the High Court has already done so) (section 86(1) of the 1972 Act) and (ii) give public notice of the vacancy in accordance with the requirements of section 232 of the 1972 Act immediately after it declares the office vacant (section 87(2)(a) of the 1972 Act). The three circumstances are that a member of a local council:
- Ceases to be qualified to be a member of the council.
- Becomes disqualified for being a member of the council otherwise than under section 79 of the Local Government Act 2000 (Wales) or section 34 of the Localism Act 2011 (England) or by virtue of a conviction or a breach of any provision of Part II of the Representation of the People Act 1983.
- Ceases to be a member of the council by reason of failure to attend meetings for six consecutive months without approval of their absence from the council.
Disqualification relating to sexual offences (England)
The Local Government (Disqualification) Act 2022 inserted a new section 81A to the Local Government Act 1972, which sets out criteria for disqualification due to relevant notification requirements or relevant orders imposed in respect of sexual offences. This came into force in June 2022 and applies to councillors in England. It disqualifies anyone from being a councillor or being elected to a council who is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003. S81A does not have retrospective application and only applies to persons subject to relevant notification requirements or orders made on or after 28 June 2022, when the section came into force. A person who is in the process of making an appeal or application in relation to the disqualification is not disqualified at any time before the end of the day on which the appeal or application is disposed of, abandoned or fails by reason of non-prosecution. Updated consent to nomination forms for each poll are available on the Electoral Commission’s parish council elections in England page. We suggest that any eligibility questions are put to the principal authority elections team as the persons responsible for the elections process.
Filling a casual vacancy
In accordance with rule 5 of 2006 Rules), if within 14 days (calculated by excluding those days specified above) after public notice has been given, at least 10 electors give written notice to the proper officer of the principal authority of a request for an election to fill the vacancy, then a by-election must be held except where the vacancy occurs within six months before the date when the councillor in question would have regularly retired (e.g. four days after the next ordinary election). If a by-election is called, and an insufficient number of candidates is nominated, those nominated are elected (see section 39(5)(b) of the 1983 Act), and the district council must call a further by-election to fill the remaining vacancy or vacancies (see section 39(1)(b) of the 1983 Act).
Co-option
If no by-election is called, the council must, as soon as practicable after the expiry of the 14-day period, fill the vacancy by co-option. If the vacancy falls within the six-month period, the council may, but need not, fill the vacancy. In the latter case, it must still give public notice of the vacancy.
Eligibility for co-option
A person is eligible to be co-opted provided they are qualified to be a councillor (see section 79 of the 1972 Act) and is not disqualified by section 80 of the 1972 Act. The Electoral Commission has produced guidance for parish councils in England on qualifications for standing for election and disqualifications from standing for election, including a candidate guide.
Candidates standing in local council elections must submit to the Returning Officer a form (prescribed by Part 7 of paragraph 1 to Schedule 2 of the 2006 Rules) which (a) confirms their consent to nomination and (b) includes a declaration that they meet the aforementioned statutory qualifications to stand for election. Candidates who wish to be co-opted onto a local council are not subject to such requirements. To ensure that councils consider for co-option only those candidates who are eligible to be councillors, NALC recommends that councils require candidate(s) for co-option to declare or certify in writing that they meet the criteria for eligibility set out in section 79 of the 1972 Act and are not disqualified under the 1972 Act. A council may need to investigate or obtain evidence about a candidate’s eligibility to be a councillor if this is challenged.
A local council may wish to indicate that people with specific skills and expertise (e.g. accountancy, HR, Planning) are particularly welcome to apply. This should not be part of the formal notice, and it must be clear that people without those skills are still eligible to apply. In cases where there are more candidates than vacancies, a council will need to fairly consider who to co-opt and such skills and expertise may be taken into account according to a council’s particular needs.
Where the number of candidates is less than or equal to the number of vacancies, the candidates shall be appointed to the council if they meet the section 79 eligibility criteria and they are not disqualified.
Decision making
Decisions made by a local council about whether or not to co-opt when vacancies remain unfilled after an ordinary election and who to co-opt when any casual vacancy arises should be transparent. In NALC’s view, it would be difficult for a local council to argue that there are special reasons that justify excluding the public during a council meeting when it is making decisions about a matter of public interest, such as co-option. Decisions about co-option, which are made at council meetings when the public has been excluded, will not eliminate the need for a council to explain, for example, to unsuccessful candidates, the reasons for its decisions.
Registration of interests
Within 28 days of becoming a councillor in England, a person must notify the Monitoring Officer of any disclosable pecuniary interests as defined in the Relevant Authorities (Disclosable Pecuniary Interests) Regulations 2012/1464. The definitions of disclosable pecuniary interests are given in Legal Briefing L10-12. In England, the code of conduct adopted by a council under section 27(2) of the Localism Act 2011 Act may require a councillor to give notification of interests which are not disclosable pecuniary interests within 28 days of their election to office. Upon re-election or re-appointment, a councillor in England must also, within 28 days, notify the Monitoring Officer of disclosable pecuniary interests not already included in their register of interests. Further guidance is given in Legal Topic Note 80 (Members’ conduct and the registration and disclosure of their interests (England)). In Wales, within 28 days of becoming a councillor, a person must notify the Proper Officer of the personal interests set out in paragraph 10(2)(a) of the schedule to Local Authorities (Model Code of Conduct) (Wales) Order 2008/788 as amended by the Local Authorities (Model Code of Conduct) (Wales) (Amendment) Order 2016/84 and any other financial interests required by their council’s code of conduct.
Election of chair
Sections 15 and 34 of the 1972 Act (for England and Wales, respectively) provide that the chair of a local council must be elected from among the councillors as the first business of the annual council meeting in May. They remain in office until their successor is elected (at the following meeting unless in the interim they resign, die or otherwise vacate office).
Schedule 12, paragraphs 11 and 27 of the 1972 Act (for England and Wales, respectively) provide that since the chair of the council must preside at all council meetings which they attend, they must, if present, preside at the election of their successor (who may, following re-election, be themself). As chair, they have, as well as their ordinary vote, a casting vote in the event of a tie between candidates for their post, and they must exercise the latter. Section 15 of the 1972 Act provides that following an ordinary election, the chair ceases to be a councillor. They nevertheless remain chair of the council until their successor takes office. If present at the annual council meeting, they must preside at the election of their successor but have only a casting vote. As soon as their successor is elected, they vacate office and can no longer participate as a councillor in the meeting.
Upon election to the office of the chair of a local council, the councillor must sign a declaration of their acceptance of that office in the presence of another councillor or the clerk. The chair’s declaration of acceptance of office must be delivered at the meeting at which they are elected or, if permitted by the council, before or at a later meeting fixed by the council. Failure to deliver the signed declaration at the due time results in the automatic vacation of office of the chair. A chair is elected annually, and therefore, a declaration must be made every year by whoever is elected as chair – see section 83(4) (a) of the 1972 Act.
Vice-chair
Section 15(6) and 34(6) of the 1972 Act provides that a council may but need not elect a vice-chair.
A councillor elected to the office of vice-chair does not have to sign and deliver a declaration of acceptance of that office (although they must deliver their signed acceptance of office as a councillor.
Please click on this link to download the Councillor Co-option Policy and Application Form
