Comment: The Case of the Absent Ash Councillors Descends into Farce

Published on: 7 Sep, 2022
Updated on: 8 Sep, 2022

By Martin Giles

The fiasco at Ash Parish Council regarding the status of two absent councillors who have not attended a single council meeting in person for over two years has now become even more farcical.

Within hours of The Dragon publishing the story Ash Council to Decide on Absent Councillors’ Status Following Further Legal Advice, emails revealed by a Freedom of Information request from a diligent Ash resident, Carl Cookson, have shown an even greater degree of ineptitude.

To remind readers…

On May 6, 2021, emergency provisions under Covid that allowed councils to meet remotely, ie online, came to an end and there was a clear judgment in the high court that online attendance was no longer allowed. This meant that, once again, councillors who did not attend a council meeting in person for six months were automatically disqualified (the “six-month rule”).

This caused a particular problem at Ash. Two parish councillors – Helen and Tony Gorham – had moved away to Wiltshire but had remained in post. Although there was nothing in law to prevent them from remaining on the council, the question of whether they were required to attend meetings in person became a central issue.

Cllr Nigel Manning

Parish council chairman Nigel Manning claims he called the National Association of Local Councils (NALC) by phone and said he received advice that online attendance at APC committee meetings could be counted for the purposes of the “six-month rule”. But he had taken no note of the advice he received, for example, the name of the person at NALC who gave it nor, apparently, which specific part of the Local Government Act had been referred to.

In November 2021 The Dragon asked (see: Parish Council Fails to Explain Councillors’ Six-month Absence) whether the two councillors were to be disqualified given their non-attendance. The councillors themselves did not respond to email requests to comment and the parish clerk, asked by us under what rules could they be allowed to continue, would only refer to the 1972 Local Government Act without explaining how it specifically justified the councillors remaining.

Further articles were written and comments were made by residents concerned at the apparent breach of the law that governs council meetings and councillor eligibility.

In April this year, in response to a question from Carl Cookson, the monitoring officer at Guildford Borough Council, a lawyer specialising in local government law, pointed out clearly that the vague advice the chairman Nigel Manning said he had received in the phone call to NALC was wrong and that the two councillors were disqualified back in November 2021 after six months of non-in-person-attendance.

Cllr Manning still resisted, saying the monitoring officer’s view was “just an opinion”. The two councillors remained in place, and in the May meeting of APC it was agreed that the council would obtain a further legal opinion from a barrister.

In June, the council heard it was to cost the parish council £2,400 but agreed to proceed.

That advice was due to be delivered by the end of August and is expected to be presented at the forthcoming council meeting on September 12.

Parish Cllr John Tonks

But it has now been revealed that the deputy chairman of Ash Parish Council, John Tonks, who had voted to ignore the GBC’s Monitoring Officer’s advice in May, wrote to NALC asking again for its advice despite the council having already agreed to spend £2,400 to get a barrister’s opinion.

Strangely he made no reference in his request to the chairman’s claim that he had been advised earlier by NALC that online attendance was permissible. The Dragon understands that NALC has no record of that claimed telephone call. Certainly, they have ducked The Dragon’s direct questions on the subject.

See: Ash Council to Decide on Absent Councillors’ Status Following Further Legal Advice

The NALC told Cllr Tonks that the proper route for his enquiry was to the county association, the Surrey Association of Local Councils (SALC).

So the deputy chairman then wrote to Anne Bott, chair at SALC.

On July 20 she responded: “A councillor will  be disqualified if within 6 consecutive months they have not attended in person a formal Meeting of the Council, Committees, sub-committees or any approved business of the Council, unless within the 6 months they have submitted apologies for absence WITH REASON which has been approved by the Council etc.  

“In those circumstances the 6 months period will  restart from the approved absence. There must be a reason and it will  not suffice to simply ‘note’.”  Councils can agree to suspend the attendance requirement in certain circumstances but that was not done by Ash and it can’t be done retrospectively.

But Cllr Tonks did not give up. Despite Ms Bott’s clear advice he said the two councillors had attended committee meetings and asked: “… please could you confirm in which section of the Local Government Act it requires Parish Council Committee meetings to be held ‘in person’?”

The response he got was probably not the one he wished for. It is now 10.55pm and Ms Bott seems to be struggling, as might any reader, to understand what Cllr Tonks is not getting. She writes back in bold text: “In respect of any Committee Meetings held via Microsoft Teams after 6th May 2021, these would be considered to have been held unlawfully as there is no power to hold statutory Meetings virtually post this date. Any decisions could be subject to legal challenge.“It therefore follows that attending these Meetings would not count as attendance.

“The Local Government Act 1972 paragraph 12 covers the rules relating to statutory meetings. Given that remote/virtual meetings would not have been possible in 1972 it is clearly the intention of the legislation that reference to attendance means face to face in a Meeting Room.”

The true situation was now crystal clear. Not only did the online attendance by the two remote councillors not count under the six-month rule, the meetings themselves were unlawful and “any decisions made at them could be legally challenged.”

But still Cllr Tonks persisted to dig the hole he and his fellow councillors are now in. He shows, simultaneously, an incredible incapability to understand plain English and an inability to write it: “I note your reference to Schedule 12, which I am aware of, but I understand your view on the date of the document that that [sic] you agree that it’s not specifically written in the LGA, hence the confusion.

“In regards subcommittee meetings, which I understand to be non-statutory, my understanding that these qualify as attendance too?”

Showing commendable patience, and probably undue generosity, Ms Bott concedes that there might be some, albeit irrelevant, confusion between council committees and working groups.

She concludes, tellingly: “I have recently written to your clerk re outside enquiries both NALC and Surrey ALC have received regarding members ‘lawful attendance’ [probably enquiries from The Dragon] and asked if possible to let me know APC’s continued stance on this matter which would be material to our response. 

“If you feel I have not fully responded to all your requests please do let me know.”

So, what are we to make of all this?

There are a number of questions Cllrs Manning and Tonks, and others on the council, need to answer.

1. Why was an unrecorded, unnoted and admittedly vague phone call deemed sufficient to base an important decision on councillor status?
2. Why in November when the status of the two absent councillors was questioned was further advice not sought?
3. Why in April, when the GBC monitoring officer’s advice was given, was it brushed aside?
4. Why was the Surrey Association of Local Councils (SALC) only approached after the council had decided to pay £2,400 for legal advice from a barrister?
5. Why are all the enquiries on council regulations coming from the politicians on the council and not the parish council clerk? Why has he been sidelined?
6. Why was it deemed so important to avoid the two by-elections that would almost certainly occur if the two absent councillors stood down?
7. Why did other councillors at APC not do more to challenge the obvious rule-breaking?
8. What is the council to do now about all the meetings that were unlawful and the decisions made at them that are open to challenge?

Like everyone in public life the two councillors are accountable under the Nolan Code. They should be man enough to face up to these legitimate questions at the next council meeting and their peers need to be man (or woman) enough to put the questions to them.

Let’s hope they are.

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