Who Can Say If Parish Absentees Are Still Qualified Councillors?

Published on: 7 Dec, 2021
Updated on: 7 Dec, 2021

Helen and Tony Gorham

By Martin Giles

The uncertainty surrounding the status of two parish councillors at Ash Parish Council (APC) continues and has brought to attention doubts about the correct interpretation of a High Court judgement made in April.

Normally councillors who fail to attend meetings for more than six months are automatically disqualified as councillors and are replaced by new councillors elected in by-elections or by co-option.

But at Ash, two councillors, Tony and Helen Gorham, who moved away to Wiltshire in 2020, are continuing in post even though their only attendance since May, according to published minutes, has been at online committee meetings, Tony Gorham six times and Helen once.

This would appear to contravene an explicit High Court judgement in April which, following a relaxation of the rules because of the pandemic, made it clear that primary legislation would be required change the rules governing meetings, as specified the 1972 Local Government Act.

Extract from the High Court judgement handed down on April 28.

But some councils are interpreting this to mean that only “statutory meetings”, those required by law, have to be held as described in the judgement while other meetings, for example committee meetings where no decisions are made, can continue to be held via the internet where members meet virtually. Examples locally are the committee meetings at APC and the Executive Advisory Boards at GBC.

The key question is whether Cllrs Helen and Tony Gorham, by attending virtual committee meetings, can be regarded as staying within the rules. Neither has been present at a full council meeting, at which councillors have attended in person.

Asked to state the advice on which APC was relying to allow them to remain as councillors, the parish clerk, Dennis Wheeler, only referred us to the 1972 Act, which was obviously enacted before virtual attendance via the internet was imagined.

In response to our enquiry, Mr Wheeler wrote: “Councillors Helen and Tony Gorham have not attended any face to face full council meetings since the date you refer to [May 7 when the High Court judgement became effective] in your email.

“However, both these councillors have attended virtual meetings representing their parishioners this is on record by virtue that our parish minutes are on public view on the Parishes [sic] website.

“Ash Parish Council have been advised that the manner in which they run meetings and the fact that Councillors Helen and Tony Gorham attend virtual meetings is acceptable under Section 85 of the Local Government Act 1972 attendance requirements.”

Cllr Nigel Manning, chairman of Ash Parish Council

The parish council chairman, Nigel Manning, refuses to answer questions from The Guildford Dragon.

For various reasons, partly convenience, partly accessibility and partly to help with pandemic precautions, many councils would like to be able to hold virtual meetings, as they did during an earlier stage before May this year, when rules were relaxed because of the pandemic.

Both the Surrey Association of Local Councils (SALC) and the National Association of Local Councils (NALC) showed advice that seemed to make this clear. These postings have since been removed:

Advice that was being shown on November 23 on the FAQ section of the SALC website.

Advice published on the NALC site…

… warning that one entire council had fallen foul of the “six-month rule”.

But it is understood that Ash did not approach GBC, which has a role in handling and adjudicating on complaints made against parish councils, for guidance.

An example of a councillor’s published attendance record at GBC which includes virtual attendance at Executive Advisory Board meetings.

The situation at Ash led to the realisation that GBC is not distinguishing, in its councillor attendance records, between attendance at its virtual Executive Advisory Board meetings (EABs) and others where physical attendance is required.

We have been told that the issue of virtual attendance is being reconsidered by the government but it is very unlikely that the necessary legislation would be retrospective and the status of councillors who had only attended virtual meetings for six months would rely on an interpretation of the existing rules.

Diane Owens, the monitoring officer at GBC, whose role is to ensure that the council is run in line with appropriate regulations, said: “All council and committee meetings are being held in person at Millmead House, with the exception of meetings of our Executive Advisory Boards (EABs) which continue to be held remotely.

“Our view is that bodies like the EABs are purely advisory and non-decision making, and the risk of a legal challenge in respect of their deliberations is extremely low.

“Whilst the question of whether remote attendance at a meeting held after 6 May 2021 counts as attendance under the ‘six-month rule’ has not been tested in the courts, we can confirm that since 6 May none of our 48 councillors have been, or are, at risk of disqualification under that rule because EAB meetings continue to be held remotely.”

Councils do have the power to allow exceptions to the “six-month rule”, sometimes used when a councillor has a long-term illness, but this has to be agreed at a public meeting and it is not claimed that this was done at Ash, nor is it clear what the reason could be in the Gorhams’ case. Their distance to travel is unlikely to be an acceptable reason, given it is their own choice.

The man who made an official complaint to GBC last year after Mr and Mrs Gorham left the area says there is an ethical issue to be considered as well as one concerning the rules.

Ash Vale resident Peter Corns made the complaint because he believed Mr and Mrs Gorham would not be able to represent the parish from 60 miles away. But the borough’s legal department found that the two councillors had not breached the parish council’s code of conduct.

Mr Corns said this week: “Helen Gorham is supposed to represent my ward, Ash Vale, and her husband Ash Wharf. Mr Gorham’s current statement on the Ash Parish Council website states: ‘My wife Helen and I moved to Ash Vale in 1989. We have been part of the Ash and Ash Vale community and although now moved out of the area still see our role as active councillors.’

“How can that possibly be true? They have no empathy for the community they have deserted and in my view their ethics in this matter are distinctly skewed. We deserve better than this.”

There is nothing in law to prevent councillors moving away from a local authority area or parish once elected. A Normandy parish councillor moved away to France in 2019 or 2020 but remained controversially qualified as a parish councillor, and there have been other examples at upper and lower-tier authorities where councillors have moved away, attended a minimal number of meetings, but continued to claim allowances. Allowances are not paid to parish councillors.

The next scheduled meeting of Ash Parish Council is on December 13. It remains to be seen if Cllrs Helen and Tony Gorham attend the meeting and, if they do, whether their status will be challenged.

Helen and Tony Gorham have been invited to comment.

The Department for Levelling Up, Housing and Communities led by the local MP for Surrey Heath, Michael Gove, was also asked to comment.