Ultra vires

Exeter City Council has voted to suspend parts of its constitution, despite not having the power do so. 

The sentiment that the first casualty of war is truth has been attributed to many sources, including the Greek dramatist Aeschylus. These days, at least in public life, truth is a vanishing commodity which doesn’t require a war to depose it, so we would do better to look at what else is under threat as the coronavirus sweeps through society. I refer only to the precariousness of our constitutional structures, not to the human costs of the virus.

Democratic accountability itself is wobbling. Some ministers treat parliamentary select committees and journalists with contempt by simply refusing to answer their questions. The default answer by government departments and ministers to any enquiry is a bland statement about how focussed and relentless the government is on ramping up whatever the tabloid press says needs ramping up.

The other pillar of society under threat is the rule of law. We have a now-invisible prime minister whose advice to the monarch on the prorogation of (an unhelpful) parliament was so blatantly illegal that it took the courts no time at all to overturn it. Since then we have seen (a supine) parliament nod through a massive set of emergency powers with next to no scrutiny, and their partial implementation by one or two over-zealous constabularies before the laws were actually in force. None of this is to argue that the emergency powers were neither necessary nor urgent. I simply use what has happened as an illustration of changing norms in public life and our willingness at times of crisis to look to “the authorities” to watch out for us, however driven by amoral expediency those authorities are perceived to be.

So what happened at Exeter City Council on 21 April 2020 should not perhaps have been seen as shocking, though indeed it was. Included in a long series of recommendations from the executive of senior councillors for approval by the full council was a set of measures intended to keep the council functioning through the coronavirus crisis. Central to these was an uncontentious amendment to make sure that the operation of powers delegated by the politicians to officers would not be interrupted if the officers to whom the powers were delegated fell ill.

Additional recommendations – to allow councillors to be absent without losing their seats, to arrange for meetings to be held remotely and to empower the city solicitor to amend the council’s constitution to keep it in line with any new legislative requirements – were also passed without comment.

But the 4th recommendation in the set – which was voted on separately from the rest – is where the council overstepped the mark. The recommendation adopted on 21 April states:

(4) suspending Articles 14 and 15 of the Constitution and Standing Orders 47 and 48 for the next six months, effective immediately, to allow for the Council’s Constitution to be amended by a simple majority of Council; [1]

The need for this specific measure is not spelt out. It is merely included as part of the wider package to enable the council to continue functioning in the event of officers and councillors being incapacitated. Standing Orders 47 and 48 set out the procedures for amending or suspending other standing orders.

Articles of the constitution take precedence over standing orders. Article 15, which the council has voted to suspend for six months, includes the unambiguous sentence: “The Articles of this Constitution may not be suspended”. There is no let-out clause allowing them to be suspended in certain circumstances. Nor is there is a general power  in the Coronavirus Act 2020 and subordinate regulations for councils to ignore their own constitutions.

The articles can of course be amended or revoked by following the approved procedure (Article 14) but they cannot be suspended. Given that Article 15 also provides for the suspension of Standing Order 48, it is difficult to see why the council should remove the power to suspend 48, since its own suspension is one of the stated objectives.

It is not as if councillors were unaware of this. At the executive meeting on 7 April, when the recommendations to full council were finalised, Green Party Councillor Diana Moore draw attention to the impossibility of suspending Articles 14 and 15. She was told by the leader, Councillor Phil Bialyk, that further information on her point would be provided in writing. By the time of the full council meeting Councillor Moore had not received the information. She therefore raised the point again, only to be told by Councillor Bialyk that he was not allowing any changes to the executive’s recommendations because they had been discussed fully there, supported by the leaders of the two opposition groups, and all issues were resolved (not quite, Phil). The offending recommendation was carried in full council with only the four councillors in the Progressive Group voting against.

In normal times, I would be among those rapidly accusing the council of acting beyond its powers – ultra vires – in suspending Articles 14 and 15. But these are not normal times and the pressures on local authorities – particularly ones like Exeter which are commendably doing a great deal to support vulnerable people and organisations – are too intense to expect them to engage in what many people will regard as unimportant nit-picking.

But it’s not unimportant. Even in difficult times, we should not allow public bodies unilaterally to set aside the rules. If the council makes use of any of the freedoms it thinks it has given itself by the suspension of Articles 14 and 15, there will be a reckoning when we are through the crisis.

Meanwhile, there’ll be a good news post for next week.

 

NOTES:

[1]        This is where the post gets a bit anoraky. The council’s constitution is set out at http://committees.exeter.gov.uk/ieListDocuments.aspx?CId=382&MId=6530&Ver=4&Info=1 . Part 2 lists the Articles which govern the role and powers of councillors, the committee structure and decision making by the council. Part 4 lists procedural rules which govern day to day council business, including standing orders for the conduct of meetings (4b).

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s