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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Armstrong-Braun, R (on the application of) v Flintshire County Council [2001] EWCA Civ 345 (20 February 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/345.html Cite as: [2001] EWCA Civ 345, (2001) 3 LGLR 34, [2001] BLGR 344

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LIST
(MR JUSTICE HARRISON)

		Royal Courts of Justice Strand London WC2 Tuesday, 20th February 2001

Tuesday, 20th February 2001

1. LORD JUSTICE SCHIEMANN: This is an appeal by leave of this court from a judgment of Harrison J who refused to quash a Standing Order made by Flintshire County Council for the regulation of its business in Council.
2. Local Authorities in England and Wales exercise huge legislative and executive powers. Local Authorities were created by statute in the 19th century which statutes have been amended and consolidated from time to time. The current leading statute is the Local Government Act 1972.
3. Local Authorities are not appointed by central government. They consist of councillors who are elected by the electors of subareas of the area over which the council holds sway. In Flintshire with which we are concerned, as elsewhere, the statute provides that for each of the electoral divisions into which the county is subdivided the electors shall elect their own councillor. This case is concerned with the ways in which a councillor can bring matters before the council so that they may be discussed by the council. It thus goes to the heart of the democratic process.
4. We are concerned with the legal validity of a Standing Order made by the Flintshire County Council which prevents any councillor from putting a matter on the agenda for discussion unless he has the support of at least one other councillor. There is thus demonstrated in this case a tension between two desirable and understandable aims. It is desirable that a councillor should be able to raise matters of concern to him or his electors, and that he should be able to do so in a public forum which the public can attend, and of whose deliberations there is a public record. On the other hand it is desirable that a council, which has a vast amount of business to transact, should be able to get through its business with reasonable dispatch, otherwise the quality of persons who are prepared to give their time will, quite possibly decline because too much time will in their estimation, be spent on matters of no intrinsic interest.
5. This tension is not peculiar to Flintshire or even to Wales. In model Standing Orders which were prepared in 1963 under the auspices of the Ministry of Housing and Local Government it was provided that any member could move a motion for discussion upon giving a certain number of days notice. That was a provision which entitled a single member so to do. That was the rule in Flintshire as in very many, if not all, local authorities round the country.
6. In the late 1980s a joint working group on local authority model Standing Orders was set up to consider what current conditions required. It consisted of various chief executives of various councils as well as representatives of the Welsh office, the Department for the Environment and so on. It considered various problems which were drawn to its attention and suggested new model Standing Orders which it thought were an improvement on the old. However, in its report there is no suggestion that the rule as to the moving of motions being possible by a single councillor was causing any practical problems and, while changes were suggested to the Standing Orders, no change was suggested to the practice of allowing any councillor to put a motion on the agenda when he considered it appropriate.
7. Flintshire County Council decided to change its Standing Orders so as to prevent a single councillor from doing it. He had to get a seconder. It was this change which was the subject of the application for judicial review before Harrison J.
8. The Standing Order under attack is Standing Order No.8, which provides:

"Notice of every motion... shall be given in writing, signed by the Members proposing and seconding it and delivered at least 10 clear days before the next meeting of the Council, to the office of the Chief Executive when it shall be dated, numbered in the order in which it is received and entered in a book which shall be open for the inspection of every Member of the Council.

2. The summons for every meeting of the Council shall set out all motions of which notice has been duly given...

4. If the subject matter of any motion of which notice has been duly given comes within the province of any Committee or Committees it shall, upon being moved and seconded, stand referred without discussion to such Committee or Committees or to such other Committee or Committees as the Council may determine, for consideration and report. Provided that the Chair may, if the Chair considers it convenient and conducive to the despatch of business, allow the motion to be dealt with at the meeting at which it is brought forward.

5. Every motion shall be relevant to some matter in relation to which the Council has powers or duties or which affect the County."

9. Now, the power to make Standing Orders is contained in Schedule 12 of the Local Government Act 1972. The provision is short. It is contained in paragraph 42, and reads:

"Subject to the provisions of this Act, a local authority may make Standing Orders for the regulation of their proceedings and business and may vary or revoke any such orders."

10. That 12th Schedule is concerned with meetings and proceedings of local authorities, and makes various regulations for principal councils (of which Flintshire is one), joint authorities and parish councils. So far as principal councils are concerned it is notable that under paragraph 5 of that schedule it is provided:

"... no business shall be transacted at a meeting of the council other than that specified in the summons relating thereto."

11. Also relevant to the consideration of the question before us are the provisions in sections 100A of the Local Government Act which deals with admission to meetings of principal councils; 100B which deal with access to the agenda and connected reports; 100C which deal with inspection of minutes and other documents after meeting; 100D which deal with inspection of background papers and 100F which deal with rights of access to documents for members of principal councils.
12. Four issues arise for decision in the present case.
13. The first is: is a Standing Order such as Standing Order No.8 a Standing Order for the regulation of the county council's proceedings or business so as to fall within the wording of paragraph 42?
14. The second issue is: if the answer to the first be yes, is it possible for a Standing Order which falls within the wording of paragraph 42 to be quashed as falling outside the policy and objects of the act or as being otherwise legally objectionable?
15. The third issue is: if so, is a Standing Order such as Standing Order No.8 which insists that there must be at least two councillors in favour of a motion before it is put on the agenda necessarily objectionable in law as being outside the policy and objects of the Act?
16. The fourth issue is: if not, was the procedure which attended the making of this particular change to these Standing Orders a procedure which was so imperfect that the Standing Order ought to be quashed on legal grounds without prejudice to it being introduced in an identical form in the future?
17. I turn to issue one. I have called it issue one because it seems to me logically to be the issue which requires first decision, but I should make it clear that Mr McCracken, who has argued the case for the appellant with conspicuous skill, does not put it at the centre of his case. He submits in relation to this first issue that the prohibition of an elected councillor from putting business before the Council goes beyond the regulation of business. He submits that the power to regulate proceedings does not include the power to prohibit proceedings. He drew our attention to the Privy Council case decided in a different context, The Municipal Corporation of the City of Toronto v Virgo [1896] AC 88 at 93-94. The judge said this in relation to that submission. In paragraph 38 of his judgment:

"In my view, there is nothing unlawful about a Standing Order which requires there to be a proposer and a seconder of a motion before it is put on the agenda. Such a requirement can quite properly be said to be concerned with the regulation of the Council's proceedings and business. It is setting out rules as to how matters are placed on the agenda for subsequent discussion and voting... In my judgment, Standing Order No.8 comes within the scope of the enabling provision in paragraph 42 of Schedule 12 to the 1972 Act."

18. For my part I think the judge was right in that particular conclusion. It is a point of first impression not capable of much elaboration.
19. The second issue was addressed by Mr McCracken in this way. He submitted that the disputed Standing Order was not within the scope of the legislative provision. The scope of that must be determined by ascertaining the policy and objects of the Act by construing it as a whole. He referred us to the following comment by Lord Reid in the leading case of Padfield v the Ministry of Agriculture Fisheries & Food [1968] AC 997, the comment being at 1030. Lord Reid put it this way:

"Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. ... but if the Minister, by reason of his having misconstrued the Act or any other reason so uses his discretion as to thwart or run counter to the policy and objects of the Act then our law would be very defective if persons aggrieved were not entitled to the protection of the Court."

20. He referred us to R v Tower Hamlets ex parte Chetnik [1968] 1 AC 858 in which Lord Bridge endorsed an exposition of Sir William Wade at 872, and which ran as follows:

"... unfettered discretion is a contradiction in terms. The real question is whether the discretion is wide or narrow, and where the legal line is to be drawn. For this purpose everything depends on the true intent and meaning of the empowering Act."

21. Mr McCracken submitted that the disputed Standing Order subverted the policy and objects of the Local Government Act 1972. He submitted that it was inconsistent with three principles which, as he maintained, one could deduce from the Act. He accepted, I think, that he himself was the formulator of the principles, as he put them. He put them as follows: the principle of openness, the principle of accountability and the principle of territoriality. He said those principles were implicit in a number of requirements set out in the Act. The public access to the agenda for meetings (to which I have referred), the public access to meetings, the keeping of publicly available minutes of proceedings, the liability of councillors for illegal expenditure and the fact of provision being made for election of a single councillor to represent a specific area. In that context he refers us to Schedule 11 of the Local Government Act paragraph 1A(2). He submitted that the Standing Order was inconsistent with those principles in the following ways at least. He said that it deprived the public of the right to know of a lone councillor's proposals; it deprived them of the opportunity to lobby their own councillors to support the lone councillor; it enabled other councillors to prevent the public recording of their refusal even to discuss proposed resolutions, and it deprived the lone councillor of the opportunity to place on the official record in the minutes his proposals relating to matters such as illegal expenditure or indeed merely undesirable expenditure, or public health risks, which may in the future cause the Council to be the subject of just public censure. He said that the Standing Order created opportunities for the unscrupulous either to deny that they had been asked to second a motion or to pretend that they had tried and failed to put forward motions.
22. So far as the second issue is concerned it turned out to be common ground that, in principle, a Standing Order could be quashed as falling outside the policy of the Act or as being legally objectionable in some other way. So there is not actually anything between the parties in relation to the second issue. Where the dispute concentrates is on issues three and four.
23. The third issue gave rise to submissions by Mr McCracken that the loss to territorial democracy caused by a Standing Order (such as the one under consideration) was inevitably great and disproportionate to any gain in administrative efficiency. He suggested that, if the lone councillor wished to place on the agenda something of concern to his ward or to his party, he could not establish that there was no seconder until he had individually contacted every single one of the other councillors, and this could particularly be a problem if it was a matter of urgency. He pointed out that if councillors refused, there would be no official record of that refusal, and suggested that this was at odds with what he called the principle of accountability.
24. He drew our attention to the fact that he fully recognised the problems which can be caused by frivolous, vexatious or time-wasting motions, but drew our attention to the fact that the Standing Orders of the council included a variety which inhibited a councillor from doing just that. In particular, he pointed to Standing Order No.9 which provided that without notice a motion could be moved that the question be now put, or that the date be now adjourned or that the matter be remitted to a committee. He pointed out that Standing Order No.13 indicated that a motion or amendment should not be discussed unless it has been proposed and seconded, and this (in any event on one interpretation) permitted a councillor to move a motion, but if there was no seconder, well then, the matter could not be further discussed. Finally he drew our attention to Standing Order 13(4) which stated that no speech shall exceed five minutes except by consent of the council, and to Clause 13 of Standing Order 13 which dealt with closure motions. So he said, really, it is not as big a problem as it appears to be, and councillors have ways of silencing the man (or possibly even the woman) who is occupying an undue amount of time.
25. He submitted that by contrast, if a councillor was able to place items on the agenda without a seconder then councillors would have some time to think about the proposed resolutions before deciding whether to second them for further discussion, and councillors who might be interested could telephone or make themselves known to the proposer and say "what is all this about?" Similarly, the public would know of the proposal in advance and could lobby their councillors, and, as it seems to me, might actually attend the council meetings. I suppose one can take judicial notice of the fact that councillors at council meetings are not insensitive to a very large number of people in the balcony portraying an interest in a particular subject matter and this might have the effect of the matter being referred to the committee for further discussion.
26. Mr McCracken submitted that personal lobbying can take place as councillors assemble before a meeting. He emphasised that there would be a public record of the refusal of a councillor to support a motion if no seconder comes forward, and that this would be in certain circumstances embarrassing for the other councillors and advantageous for the councillor who was seeking to move the unpopular motion.
27. Mr Lewis, who appeared for the council, emphasised to us that there was, here, no allegation of bad faith, or that in fact this council had passed this amendment to Standing Orders for an improper motive. That is indeed common ground - which is not to say that councillor Armstrong-Baun, who is the appellant, does not have his suspicions. But there is, as Mr McCracken recognises, a gulf between suspicion and proof, and he does not allege that he is in a position to prove anything. Mr McCracken said, in answer to Mr Lewis, that, the very fact that there can be a suspicion that other councillors have ganged up so as to, in effect, render impotent the single councillor is an indication that a Standing Order of this kind is, in principle, improper. Mr Lewis answers: this is not a question of a councillor being rendered impotent; there is always the press; there is always the radio; there is always the possibility which he does have under Standing Orders to ask a well framed question; and there is the possibility that he will have, in relation to most items in any event, to oppose a motion which is moved by someone else - for that he does not require a seconder. So, says Mr Lewis, this is a storm in a teacup. He relies on the evidence which is before the court to the effect that both councillor Armstrong-Baun, and indeed others who are in minority parties, have been able to put motions before the council. It is not all that difficult in Flintshire, we are told, to find someone who will second a motion. For my part I find that wholly credible. On the other hand, I can see that there might be circumstances where a particular person might well be sent to Coventry, as it were, by the whole of the rest of the council. That has happened in our local government and indeed central government history, where nobody will cooperate with a particular MP who is regarded as objectionable as being, for instance, a racist or a fascist.
28. Mr McCracken says that Mr Lewis' point that there is no allegation of bad faith is not a crucial point. He suggested a possible Standing Order that no motion should be put forward which would benefit one electoral division only. Such a Standing Order might be regarded as perfectly sensible in the pursuit of economising in time, and so one could not say it was put forward in bad faith. Yet, there are provisions which will benefit one electoral division, only to which, out of their sense of fairness, councillors representing other electoral divisions might give their support if it became apparent in the course of the motion being moved that there really was a matter of wide interest which was behind this matter which was not perhaps apparent at first sight.
29. Mr McCracken submitted that if things were on the agenda the public would know they could apply pressure; that there will be very many issues which are of specific concern for one area. He reminded us that the Standing Orders regulating the order of business can, as does Standing Order No.7 in the present case, organise the business of the council in such a way that the main matters are dealt with first, and so the main matters will not be held up by a lone motion of the kind that we have under consideration. He drew our attention (as I have said) to the various provisions which put an intelligible limit on discussion but do not stifle it altogether. What this council has done is to prevent the matter being raised in council at all.
30. He drew our attention to the possibilities of publicly tying councillors down to the stance that they take in relation to a particular possible abuse or misuse of council's funds which will be on the borders of legality which might very well pass a district auditor, but which a minority might think it right to raise, such as the traditional attack on junketing of one sort or another with which our law books are replete.
31. Mr Lewis seeks to meet this attack by saying - which is clearly right - that the statute gives no express right to each councillor to have any matter put on the agenda as a motion. However, for my part, I do not regard the present problem as best analysed in terms of rights and duties. Rather, it should be approached as a matter of administrative law. The relevant question is: does the Act permit a Standing Order in terms such as the one under discussion? Mr Lewis submits that the statute leaves it to any local authority to arrange in the manner which it thinks fit in the light of the particular problems which it faces in its area at any particular time.
32. While I accept that that is true, it does not seem to me that that submission deals with the essential point in the present case. I think that Mr Lewis would probably accept that there can be Standing Orders which would be self-evidently unreasonable. For instance, a Standing Order that to place an item on the agenda as a motion it must be supported by the same number of councillors as those belonging to the largest party. Equally, one would have thought it would be unreasonable to demand that it should be signed by one more councillor than the second largest party has. Those examples show that a mere reference to the fact that the statute leaves the matters to be dealt with by a local authority does not entirely meet the point.
33. Mr Lewis submitted that it would be absurd to say that each councillor could insist on taking up time at a meeting by tabling and speaking on a motion even though no other councillor was prepared to support it, and it would be absurd to contend that a local authority has no power under paragraph 42 to regulate such matters so as to exclude such possibilities. He said that it was simply a sensible means by which the Council regulates its business.
34. For my part I do not see it as absurd. I would not go so far as the gentleman in "An enemy of the people" who said "the minority is always right"; but there are plenty of cases where a lone person starts a crusade and eventually the world is convinced of the wisdom of his point. So there are undoubtedly strong arguments against stifling the very raising of a matter.
35. The learned judge dealt with this part of the submissions in this way in paragraphs 40 and 41 of his judgment, which read:

"Whilst I can see that the Standing Order could conceivably be disadvantageous to a single member if he chooses to conduct himself in a manner isolated from other members, that is not necessarily so. Nor, if it were so, would it necessarily be confined to a single member of a party. No member, whether he be a single member of a party or not, has an absolute right to put a motion on the agenda, but there is no prohibition against a member who wants to propose a motion having it put on the agenda provided he gets a seconder, in much the same way as there is no prohibition against a motion proposed by a member being discussed at a meeting provided that it is seconded."

36. Despite the ingenious and interesting submissions made on behalf of the applicant I do not consider that Standing Order No.8 is contrary to the policy and objects of the 1972 Act construed as a whole. In my judgment, it is not outwith the enabling statutory provisions entitling the council to make Standing Orders for the regulation of its proceedings and business.
37. For my part I see force in the submission that, to enact a Standing Order in the present form runs against the policy and objects of the Act. Councillors represent particular areas. One of the ways in which they are intended to exercise their functions is by raising matters in council. The Standing Order prevents them from doing that. There is force in the point that it may well be that, on seeing something on the agenda paper other councillors will ring up and say "what is all this about?" It may well be possible to obtain support after a powerful five-minute speech in council, particularly if backed up by a full public gallery. The other restraints in the Standing Orders should restrain unreasonable exuberance. If it had been necessary for us to reach a conclusion on this point I might well have decided it in Mr McCracken's favour. However, it seems to me that it is unnecessary to decide whether or not such a Standing Order can ever be lawfully adopted. The same reasons as make it arguable that the adoption of such a Standing Order is, in principle, unlawful, indicate that before adopting such a Standing Order the matter should be given most anxious consideration.
38. That brings me on to the last issue. All the indications in the papers are that this Council did not consider the full democratic implications of the alterations which they were proposing. I do not blame them for this. It is something which is very easily overlooked. All we have in relation to the consideration of the relevant committee and the council is the minutes of the policy committee which considered the matter before it went up to council, which said this:

"The Director of Legal and Administration presented the report and reminded Members that the Policy Committee meeting on 30th July 1996, had resolved to establish a Working Group of Members to undertake a review of the Council's Standing Orders. The Working Group had met on a number of occasions and minutes of those meetings had been reported to the Policy Committee in the normal way. During its meetings the Working Group had approved a number of alterations to the Council's existing Standing Orders"

- and here come the important words -

"in an effort to clarify and tidy up the existing Standing Orders and these were set out in an appendix attached to the report."

39. There was reference to various other bits of other Standing Orders. One member referred to the proposed amendment to Standing Order No.8 regarding notices of motions requiring such motions to be signed by the members proposing and seconding, and ask the committee to reject this amendment; but the committee did not do so. No more is reported in relation to its reasoning.
40. When the matter came up to council on 24th November 1998 the following is minuted:

"A Member for the Halkyn electrical division referred to the recommendation from the Review of Standing Orders Working Party, which had proposed an amendment to Standing Order No.8 regarding Notices of Motion which required such Motions to be signed by the Members proposing and seconding the Motion. She said that this was also subject to a Notice of Motion to be considered later in the agenda but reported that a legal opinion had been obtained which indicated that the recommendation would be ultra vires and asked for the recommendation to be referred back.

The Director of Legal and Administration confirmed that he had not seen the legal opinion and as such he could not comment. However, if a particular action was proposed and it was considered to be ultra vires, he, as Monitoring Officer, was required to take the appropriate action but at this stage this was not necessary.

The member for the Halkyn electoral division moved that the recommendation be referred back for re-consideration and was duly seconded, and on being put to the vote, this was defeated."

41. That, I think, is all the relevant evidence that we have in relation to what considerations were before the council.
42. It does not appear that the councillors were advised by the clerk to bear in mind the sort of considerations which I have set out earlier on in this judgment in relation to the advantages of enabling a single councillor to raise an issue. The papers do not disclose any particular problems in the past in this particular council area. I have already indicated that, so far as the country at large is concerned, there do not seem to be any particular problems. What we do have is a statement by Andrew Loveridge, who is the County Secretary, who says this:

"I do not recall Standing Order 8 being particularly controversial. I do recall Councillor Armstrong-Braun asking me if the proposed amendment was ultra vires and I considered the position and decided that it would be within the powers of the Council to make it. There is an illogicality and potential diversion of resources if a matter may be put on the agenda even if it will not be discussed because no Member is prepared to second the motion. Agendas are, of course, circulated in advance to members and are available to the press and public. A great deal of time could be spent dealing with inquiries about motions or preparing for possible debates in Council or Committee which may never take place because no Member seconds the motion. This could involve obtaining detailed information and preparing reports."

43. This is not evidence that there ever has been a problem in the decades in which this Standing Order has governed the affairs of this county council, but points to problems that may arise, to which Mr McCracken says that those problems can be dealt with either by moving for closure or by directing, for instance, that reports are not prepared unless at least "X" members of the Council support a proposal. There are innumerable ways in which that sort of thing can be tackled.
44. It is important in a matter of this kind that the council should face squarely up to the problems for the democratic process which this decision poses. There are possibilities of abuse when there are lone councillors. The temptation of the majority must be to silence them. One could understand that if one thinks about it, but particularly if one is in the majority, the idea that these are improper temptations may not cross one's mind. As it seems to me, it is important that councillors should be warned of those temptations. Mr Lewis says, first, that there are no problems to which this Standing Order can give rise; and second, that all the problems to which this Standing Order can give rise must have been blindingly obvious to any councillor who put his mind to it. I would accept that some councillors will have a grasp of what a determined councillor can do even if resolutely shut out by the majority. But I am not persuaded that those councillors would necessarily have appreciated the democratic disadvantages attendant upon this Standing Order. It must be enormously tempting to silence one's opponents and to do so in the conviction that the moving of the motion by a lone councillor would be a waste of everybody's time. This conviction will often, but not necessarily always, be objectively justified. There may be times when it will be to everyone's advantage to have a matter aired, albeit briefly, than to force any attempt to silence a councillor, to be made in public under public scrutiny.
45. The judge said this in relation to the point which he seems to have dealt with very quickly. At paragraph 42 he says:

"Whilst I appreciate that the applicant says that he understands that group leaders have instructed councillors not to co-operate with him, that is disputed certainly so far as the leaders of the Alliance and Liberal Democrat Groups are concerned. The evidence from both sides on this aspect is, in my view, unsatisfactory and insufficient upon which to found any conclusion. There is no evidence that the new Standing Order No.8 was devised and approved for the purposes of gaining political advantage. If that had been so, the position would have been quite different because it would have involved the Council unlawfully using statutory powers for an ulterior purpose. As I have said, there is no evidence that that was so and any such suggestion was withdrawn by the applicant. Indeed, it is the applicant's case that the Council did not appreciate the significance of what they were doing in an approving Standing Order No.8."

46. In paragraph 44 he says:

"In my judgment, the Council's decision stands or falls with the finding of the legality of the Standing Order."

47. In my judgment, the judge did not really address the question. I do not necessarily blame him for it. Argument refines on appeal as it so often does. He did not really address the problem of the matters of which the council ought to have been warned. I am not persuaded that this Council was alive to these considerations. There would need, on any basis, to be very powerful considerations on the other side to justify a Standing Order such as the one under consideration. These considerations ought, in my judgment, to be ascertainable by a look through the minutes so that the court can, on any future occasion, be in a position to consider whether those considerations were legally relevant.
48. I would allow this appeal on this procedural ground.
49. LORD JUSTICE SEDLEY: My conclusions, before I briefly explain them, are these.

1. A Standing Order requiring any motion to have been signed by a seconder before it can be included on the agenda is an aspect of the regulation of the proceedings and business of a local authority, within paragraph 42, Schedule 12, to the Local Government Act 1972.

2. It does not follow, however, that any such Standing Order will necessarily be consistent with the policy and objects of the constitutive legislation. This is a separate and larger question.

3. The respondent authority's new Standing Order No.8 is capable of being adopted without violation of the policy and objects of the legislation provided it is adopted on relevant, logical and sufficient grounds.

4. The rule was adopted in this case without anything approaching proper consideration of the relevant issues and must be quashed. Its readoption is in no way a foregone conclusion.

50. Schiemann LJ has given the reasons, to which I need add nothing, for the first of these propositions.
51. As Blackburne J pointed out in argument, it is not difficult to postulate a Standing Order which, while undoubtedly directed to the regulation of the local authority's proceedings and business, equally plainly violates the purposes of the legislation: for example, a rule requiring a seconder from the majority party or a number of seconders. It is worth considering why.
52. The Local Government Act 1972 is, as Schiemann LJ has said, the modern successor of a series of major statutes giving life and legitimacy to local government in England and Wales. The 1972 Act, with its satellite primary and delegated legislation, continues and develops a historical system of local representative democracy. Each of those three words needs to be given its proper value.
53. First, a representative democracy exchanges the Athenian ideal of direct participation for elected individuals through whom alone the electors have a voice in the institutions of government. Secondly, the system is local, not only in the sense that a county council is not a national body - but more relevantly - because a councillor is elected as the representative of a territorial unit within the county. Thirdly, every councillor's voice and vote is equal. It follows that the proceedings and business of the Council cannot lawfully be arranged so that (however innocent the intent) particular councillors are unjustifiably silenced or otherwise disadvantaged in doing what they have been elected to do. Effect has to be given to this third principle in the light of the statutory requirement (Local Government Act 1972 Schedule 12 para 4(5)) that no non-urgent business may be discussed at all unless it is contained in the notice summoning the meeting.
54. None of this, it seems to me, is aptly described in terms of councillors' rights. It has to do with the exercise and possible abuse of power by a local authority acting collectively. If there are rights involved, they are those of the people of the county.
55. The next question is the one that I have found by far the hardest in this case: does the new Standing Order 8 simply fall outside what a county council can lawfully do to regulate its proceedings and business? Schiemann LJ has set out a powerful case for concluding that it does. Among other things, it robs any councillor in the applicant's situation of the possibility of speaking, in the five minutes he is normally allowed, to a motion which he considers to be in the interests either of the county as a whole or of those whom he represents within it, and then of seeing if at least one other councillor has been sufficiently impressed to second the motion and so allow it to be debated. Instead, it requires him to find a seconder as a precondition of having the motion listed at all. For a councillor who belongs to no party or caucus this is not only a handicap in itself but one which exposes his constituents to a measure of disenfranchisement if, for example, other groups freeze him out of debate by never seconding his motions.
56. Mr Lewis has pointed out, rightly, that a councillor has other ways of ensuring that his voice is heard. He (I use the masculine simply because the present applicant is male) can put down questions; he can move amendments; he can raise issues in committees of which he is a member or ask permission to attend committees of which he is not a member; he can present petitions signed by members of the public; he can go to the local or national press or broadcast media. It may also be, as Mr Lewis asserts, that most issues have to come up anyway by way of report or motion and so can be contested in debate by a councillor in the applicant's position. But the more such examples are given by Mr Lewis, the sharper becomes the question: why then place a hurdle in the path of a councillor who judges on occasion that the right way to raise a particular issue is not by one of those means but by motion?
57. Mr McCracken has given a series of good reasons why, despite Mr Lewis' endeavours to minimise the extent of the change to Standing Order 8 the inability to get a motion on the agenda and then to seek a seconder in debate may unjustifiably silence an elected member. He is right, too, to remind the court that the lone voice, though necessarily a nuisance to the majority, plays an important part in a democracy. Even within these courts the occasional heresy is transmuted by debate into orthodoxy. It may be that Mr McCracken's analogies between his client and Demosthenes or Churchill are a little ambitious, but it is worth recollecting, especially in relation to territoriality, that the only reason why Samuel Plimsoll was able to pursue his campaign for a law to stop the overloading of ships was that he sat for a constituency, Derby, which was almost as far as one can be in England from the sea. Representing a particular electoral division, in other words, may matter both in terms of what a councillor needs to raise because it affects his own area, and in terms of what he can have the nerve to raise precisely because it does not affect his own area. The possible unwillingness of others, in their own divisions' interests, to see the latter class of issue debated is precisely why there must be strong and valid reasons for closing the door of the council chamber to a councillor who, without initial support, wants to raise such an issue in the public forum to which he, like the other councillors, has been elected.
58. Even so, and not without hesitation, I accept Mr Lewis's fallback submission that there may be grounds on which a rule such as the new Standing Order 8 can be adopted without violating these principles. The one ground of any real significance that Mr Lewis has advanced, and which is deposed to by Mr Loveridge, is that once a motion is set down it may require officers' time and work to provide a report to assist members in making up their minds. But this, even if it is the case, is by no means the end of the road. Whether such reasons are sufficient to justify change of the present kind in the Standing Orders is a question for the members of a county council, voting after careful consideration of the full range of relevant issues and of those alone. What seems to me clear beyond a peradventure is that in this case nobody, neither the members nor the officers, even appreciated the potential damage to local democracy, much less weighed it against the reasons, such as they were, for introducing the new Standing Order. I unhesitatingly reject Mr Lewis' omnibus submission that the contra-indications, if (which he denies) there were any, must have been present in the councillors' minds when they approved the change. His own submissions have demonstrated the exact contrary: a failure on the part of his client authority to perceive, much less to evaluate, the democratic damage capable of being done by the rule-change. As the history set out by Schiemann LJ demonstrates, the exercise was apparently treated simply as one administrative tidying up and went through on the nod. The queries about whether it was ultra vires were more or less brushed aside. The answer, had it been seriously looked into, might not have been that the new Standing Order 8 was in itself ultra vires - though as Schiemann LJ's judgment has demonstrated that is an entirely tenable view - but it would certainly have been that there was far more than administrative convenience at issue.
59. In my judgment, therefore, the attack on Standing Order 8 succeeds because the amendment was adopted without any consideration whatever of its legal and constitutional implications. The Standing Order must be quashed for this reason. For my part, I would hold that if any proposal to resurrect Standing Order 8 either in its present form or in some related form is placed before the council or its Policy Committee, it cannot lawfully be entertained, much less be adopted, without consideration by members of objective advice on, as a minimum, the following. First, the legal and constitutional purposes of the Local Government Act 1972 and the related legislation. In the light of what has happened so far, there is no reason, in my judgment, to assume that such advice is unnecessary. Second, the difference in substantive effect between the model Standing Orders (or the existing ones) and the proposed Standing Order 8. It is now clear that this cannot possibly be dismissed either as insignificant or as too obvious to require examination. Third, the obligation of members collectively to regulate the proceedings and business of the council without regard to party or other advantage and in the sole interests of an efficient representative local democracy.
60. Although it does not arise at the moment for decision, it may well be that this needs to be regarded in law as a question of proportionality: is the proposed measure, having regard to its restrictive effect on the functioning of individual elected representatives, one which is necessary, in a democratic society to achieve the efficient functioning of the county council? In answering such a question, it will be appropriate, among many other things, to consider what net gain in council efficiency is likely to be achieved if the Standing Order is changed in this or some similar way. If the answer is little if any, that should be an end of it. If some appreciable administrative or procedural gain is perceived, it must be set with great care against the contra-indicators touched on in the judgments in this court.
61. I would allow this appeal accordingly.
62. MR JUSTICE BLACKBURNE: There are, to my mind, essentially two questions which arise on this appeal. First, whether it is open to a council by its Standing Orders to require that a member who wishes to have a motion appear on the summons for a council meeting should have a seconder for his notice of motion. Second, if it is, whether on the facts of this case the process by which the respondent council in September 1998 changed Standing Order No.8 from one requiring no seconder to one requiring a seconder is open to challenge.
63. On the first of these two questions on the issue of vires I am of the opinion that the relevant power exists. The matter does not simply turn on the wording of paragraph 42 of the 12th Schedule of the Local Government Act 1972, but on the policy and objects of that Act which is a larger question. It has not been suggested that paragraph 1 of Standing Order 13 of the Council's Standing Orders which provides that a motion or amendment shall not be discussed unless it has been proposed and seconded is ultra vires the 1972 Act. Since that Standing Order followed word for word the terms of Standing Order 10.1 of the model Standing Orders issued as long ago as 1963 by the Ministry of Housing and Local Government for the guidance of local authorities in regulating their proceedings in business in pursuance of a Local Government Act 1933, this is not surprising. Although Standing Order 13.1 is different from Standing Order No.8 in that it is concerned with the rules for debating motions and amendments at a council meeting, and not with how the motion gets on to the summons for the meeting in the first place, the two are not, in my judgment relevantly different so far as the question of vires is concerned.
64. Material to the second question, in my view, is the difficult position in which, in a council of 70 members consisting of several groupings, the single member finds himself, who, whether or not he belongs to a recognised political party, is not part of a grouping and must therefore fend for himself. It is of great importance in such a case that when considering alterations to its Standing Orders the council should not overlook the position of the single member. What to members who belong to one grouping or another may seem to be innocuous amendments may not be so to the single member. For such a person, lacking the support offered by group membership and likely only to be on a few, at most, of the council's committees, the council meeting is a most valuable way of ventilating his views and influencing the actions of the local authority. Although other means exist of communicating his views to the public in general and to fellow members and council officers in particular, for example the local press, the council meeting and in particular the divisive emotion, is probably the most effective way of focusing attention on the issue which the single member wishes to raise.
65. True it is that unless he can persuade another member to act as seconder his motion cannot be discussed. But with few means at his disposal to engage public attention, the use of the notice of motion set down on the Council summons which is made available to press and public alike can have value to the single member as a means of identifying the point which he wishes to make. For the single member, therefore, the opportunities provided by the council's Standing Orders may be of special importance as a means of ventilating his views. A council should proceed with caution before diminishing those opportunities.
66. The difficulty about the present case is that the evidence fails to disclose that before resolving to alter Standing Order 8 the Council gave any informed thought to considerations of this kind. Although there are, of course, countervailing considerations (the Council's solicitor, Mr Loveridge, referred to some in paragraph 4 of his witness statement from which Schiemann LJ has cited) the evidence strongly suggests that the alterations to the Standing Orders were viewed as no more than a process of clarification and tidying up.
67. It appears that at the Council meeting on 15th September 1998 at which the Policy Committee's decision on the alterations to Standing Orders were received and approved there was a debate, initiated by another member on a motion to remit the alteration of Standing Order 8 back to the Policy Committee, at which the vires of the amendment was called into question. The motion was defeated. Quite what was discussed and quite what advice, if any, was tendered by officers is not apparent. That evidence falls far short of demonstrating that, before resolving on the alteration, proper considerations were before members.
68. On this issue, therefore, I consider that the judge below was in error and that the appeal should therefore be allowed.
(Appeal allowed; costs to the claimant; permission to appeal to the House of Lords refused).