Distinguishing unwise decision-making from lacking capacity
Dec 12 2023
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The polling stations have closed, the votes are in and counted, the Returning Officer has announced the results and the celebrations are well under way – but for some councils the headaches are just beginning.
This year’s local elections in England are likely to result in many councils moving to “No overall control”. At the same time, all the non-unitary district councils have to elect a “Strong Leader” for the first time under the Local Government and Public Involvement in Health Act 2007.
The strengthening of the position of Leader in the 2007 Act can give rise to real problems for councils where no party has an overall majority. In this article, Peter Keith-Lucas looks at the challenges of electing a Leader where the May 2011 local elections result in a balanced council.
Previously, Council had considerable local discretion to determine the relative strength of Leader and Council. But the 2007 Act now requires that the new Leader:
Now that Council will be electing a Leader with such security of office and such extensive powers, the choice of Leader becomes even more critical.
Where the Council holds all-out elections, the new Leader’s term of office is four years. The only difference is that the new Leader’s term of office is now extended until the Annual Meeting following the 2015 local elections, rather than retiring automatically as Leader when they cease to be a Councillor on the fourth day after the local elections. So this is the last year when there is an interregnum with no Leader from the fourth day after the elections until the Annual Meeting.
Where the Council holds elections by halves or thirds, the new Leader can only be elected as Leader for the balance of their term of office as a councillor. So, Council may be presented with various candidates for election as Leader, but the period for which each candidate can be elected depends on when their will be up for re-election as a councillor. If the successful candidate has only just been elected, they would be elected as Leader for a full four-year term. But if they were up for re-election as councillor in one, two or three years’ time, that would be the duration of their term of office as Leader. And that pattern repeats when the new Leader’s term of office expires and the Annual Meeting holds a new election for Leader.
Elections by halves or thirds increase the risk that the new Leader’s party will lose its majority in Council at subsequent elections, but before the expiry of the new Leader’s term of office. Where this does happen, the Leader can be removed mid-term by a majority vote in Council.
Where the Leader is removed by a majority vote in Council, the removal takes immediate effect and the Council must elect a new Leader either at the meeting at which the old Leader is voted out of office, or at a subsequent meeting of Council. The new Leader is then elected for the balance of their term of office as a councillor.
Where one party has a majority in Council (or half the members plus the Chairman or Mayor’s casting vote), the election of Leader is normally pretty simple, as the majority party agrees its candidate and uses its majority to secure their election. But what happens where no party has a majority in Council, especially where the election of Leader has heightened importance.
Until this year, it was possible for Council to retain the power to elect (and remove) the individual Cabinet Members. So it was possible for a deal to be struck which secured the election of a Leader and a balanced Cabinet including members from all (or from a coalition of) parties. Under the 2007 Act, that is no longer possible as the Leader, once elected, appoints and removes all Cabinet Members.
It is quite possible that two or more parties will each nominate their own candidates for election as Leader at the Annual Meeting. There are no statutory rules on how to conduct a contested Leadership election, except that the eventual election of Leader must, like all Council decisions, be determined by a majority of councillors present and voting. Putting each candidate to a separate vote, in the order in which nominations were received, is possible but disadvantages late nominations as the contest could be over by the time their name would be called. I hesitate to mention the Alternative Vote system, but the fairest course is to copy the standard pattern for senior officer appointments, by holding a “primary” election on an Alternative Vote system to determine which candidate has greatest support, before putting that one candidate’s name up for a “Yes/No” vote in Council.
The possibility of a contested election is rarely covered by Council Constitutions. So it would be sensible for officers to set out the proposed process to all parties as soon as it is apparent that the election has resulted in no overall majority, so all parties know what the process will be.
Given the new security of office and extensive powers of the Leader, it is more than possible that no candidate can secure a majority vote in Council, as no party will be prepared to vest such powers in a member of another party.
In such case, the 2007 Act provides that the Leader is to be elected at a subsequent meeting of Council. There is, of course, no guarantee that a further meeting of Council will see parties co-operate enough to elect a new Leader. In the meantime, there will be no Leader, so there will be no-one who can either exercise executive powers or delegate them to officers. So there is some uncertainty about how executive functions can be discharged during this period.
The 2007 Act may have removed the scope for Council to elect a multi-party Cabinet, but it is still open to a leadership candidate to give an undertaking that, once elected, he/she will use their power of appointing Cabinet members to produce a coalition Cabinet, and thus to secure the support of other parties. If a successful candidate reneged on such a deal, they would soon face removal by a majority vote in Council.
If you would like to discuss any of the issues raised in this Alert, please contact our Local Government Team.