Armstrong-Braun, R (on the application of) v Flintshire County Council

A local authority’s power under paragraph 42 of Schedule 12 to the Local Government Act 1972 permits a standing order requiring a councillor’s proposed motion to have a seconder before inclusion on the agenda. That power remains constrained by the policy and constitutional purposes of representative local democracy.

A rule capable of silencing or disadvantaging an elected representative may be adopted only after the authority has considered its democratic effects and has identified relevant, logical and sufficient justification. Treating such a change as administrative tidying is unlawful. A failure to consider those matters requires the rule to be quashed.

Flintshire County Council amended Standing Order No 8 so that notice of a motion had to be signed by both its proposer and seconder before the motion could appear on the agenda. A lone councillor therefore could not place a motion before the council and seek a seconder during the meeting.

Harrison J refused the councillor’s application for judicial review. The councillor appealed. The Court of Appeal considered whether the amendment regulated the council’s proceedings within paragraph 42 of Schedule 12 to the Local Government Act 1972; whether that statutory power was constrained by the Act’s policy and objects; and whether the council had lawfully considered the democratic implications of the amendment.

1. Appeal allowed unanimously. The Court of Appeal quashed Standing Order No 8 because the council had adopted the amendment without proper consideration of its legal, constitutional and democratic implications.

2. Per Schiemann LJ, Sedley LJ and Blackburne J, requiring a motion to have a seconder before it could be included on the agenda was regulation of the council’s proceedings and business within paragraph 42 of Schedule 12 to the Local Government Act 1972. The distinction between placing a motion on the agenda and regulating its subsequent debate did not remove the requirement from the statutory power.

3. Per Sedley LJ, the literal scope of paragraph 42 did not conclude the question of legality. Local government under the 1972 Act is representative, local and democratic. Every councillor has an equal voice and vote. The council therefore cannot arrange its business so that particular councillors are unjustifiably silenced or disadvantaged in performing their elected function. The relevant concern is the lawful exercise of collective public power and, ultimately, the interests of the electorate rather than a personal right belonging to the councillor.

4. The requirement for a seconder was not necessarily unlawful. It was capable of lawful adoption if supported by relevant, logical and sufficient grounds. Administrative efficiency, including avoiding wasted officers’ work on motions unlikely to be debated, could be relevant. Its sufficiency had to be evaluated against the potential exclusion of an unaffiliated or lone councillor and the resulting damage to local representative democracy.

5. Per all three judges, the evidence did not show informed consideration of those competing matters. The amendment had been treated as clarification and tidying. The council had not properly examined the substantive difference from the previous model standing order, the risk of silencing a lone representative, or members’ obligation to regulate proceedings without party advantage and in the interests of efficient representative democracy.

6. Per Sedley LJ, obiter, reconsideration of such a restriction might require a proportionality assessment. The council should ask whether the restriction is necessary for efficient functioning, identify its net administrative gain, and weigh that gain carefully against its restrictive democratic effect. Readoption of the rule was not a foregone conclusion.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously and Standing Order No 8 was quashed. Permission to appeal to the House of Lords was refused. [2001] EWCA Civ 345

2. High Court, Queen’s Bench Division, Administrative Court: Harrison J refused the application to quash Standing Order No 8. No citation is stated in the judgment.