The role of substitutes
Geoff Wild looks at the practice of local authorities nominating substitutes when a member is unable to take their place on a committee.
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“I’ll be your substitute, whenever you want me”
The primary purpose of appointing substitute members is to ensure a committee can achieve a functioning quorum of members in order to transact its business. However, it also serves to preserve the political proportionality of an individual committee which, in turn, reflects the political proportionality of the authority as a whole.
The most common reasons for appointing a substitute member are either:
- the unavailability of a member to attend a specific meeting – whether due to a clash with a personal or another council commitment; or
- the inability of a member to participate in a significant portion of the business of a meeting and any votes upon the matter. This is usually due to a Disclosable Pecuniary Interest, Other Significant Interest or other conflict of interest (such as pre-determination/bias) arising
“Substitute me for him”
The appointment of substitutes is particularly acute in authorities where the political majority is small or where there is no overall majority. It avoids decisions being made that are not the wish of the majority of the council and ones likely to be overturned at a higher level or a subsequent meeting.
The development of the substitute system is the practical expression of the way in which the needs of parties have usurped the role and responsibilities of individual councillors as committee members. However, a substitute member attending a meeting speaks and votes in their own capacity: they do not relinquish their own personal responsibilities or take on the mantle of the original member.
If a substitute member is present at a meeting at which the member whom they are replacing turns up during the course of proceedings, the original member should be required to withdraw from any participation in the business.
The legal and constitutional basis for substitutes
The Local Government Act 2000 does not allow for substitute or co-opted members of an Executive (Cabinet), and Cabinet members may not be substituted onto overview and scrutiny committees, but many councils allow the appointment of substitute members to other committees. However, since there is no acknowledgement in legislation of the right to nominate substitute members, it is far from clear that substitutes are legal at all.
The legal basis for substitute member schemes has been considered by a number of conflicting counsels' opinions over the years. A definitive view cannot therefore be given until either the issues are tested in court or covered by legislation. In the meantime, councils have taken their own legal advice on the issue and most allow for substitutions to be made.
The legislation provides, firstly, that: “a local authority [meaning full Council] may appoint a committee” (Local Government Act 1972 section 102(1)) and, secondly, that: “it shall be the duty of [a local] authority to exercise their power to make appointments to [a committee] as to give effect…to such wishes about who is to be appointed to the seats on that body which are allocated to a particular political group as are expressed by that group” (Local Government and Housing Act 1989 section 16(1)).
Substitution is technically a means by which political groups nominate their members to a committee (even if only for a temporary period, e.g. one meeting). This is a two stage process. Wishes are expressed by political groups and appointments are made by the council. This is generally achieved by a specific resolution of full Council, allowing the mechanics of appointing to a committee to be carried out by an officer under delegated authority, since there is no element of discretion involved – they simply have to give effect to the instructions of the of the political groups.
Schedule 1 Paragraph 3 of the 1989 Act provides that the Secretary of State may make regulations “specifying the manner in which, and times at which, the wishes of such a group are to be expressed and the consequences of a failure by such a group to express its wishes”. This is covered by Regulation 13 of the Local Government (Committees and Political Groups) Regulations 1990, which states:
(1) The wishes of a political group are to be taken as those expressed to the proper officer -
(a) orally or in writing by the leader or deputy leader of the group; or
(b) in a written statement signed by a majority of the members of the group.
(2) In the event that different wishes of a political group are notified in accordance with paragraph (1), the wishes notified in accordance with paragraph (1)(b) shall prevail.
Since, however, under section 102 of the Local Government Act 1972, the membership and terms of office of committees is fixed by full Council (and the membership of sub-committees by the appointing committee), any scheme of appointment of substitutes which is not specifically approved by full Council and enshrined in its constitution is likely to be vulnerable.
Indeed, some councils’ constitutions do not set out rules governing the use of substitute members, but substitutions are nonetheless made on the basis of historic custom and practise, including the appointment by one political group of a substitute from another group.
Substitute members from different political groups
The whole substitution system (invented as a matter of pragmatism) was designed to preserve proportionality. Members are appointed on a politically proportional basis and so, therefore, should substitutes.
However, whilst the council is under a statutory duty to appoint in accordance with the wishes of a political group, if political groups nominate substitutes from different groups, and unless the constitutional procedure provides otherwise, they can at a stroke change political proportionality.
The Local Government and Housing Act 1989 and associated regulations do not say that a seat allocated to a political group must be filled by a member of that political group. Rather, section 16(1) says that it is the duty of the council "to give effect...to such wishes about who is to be appointed to the seats on that body which are allocated to a particular political group as are expressed by that group". That's a subtle, but crucial difference, which (unless the constitution provides otherwise) allows for a seat allocated to Group A to be filled by a member of Group B, if Group A wishes that to be the case.
“I'm a substitute for another guy, I look pretty tall but my heels are high”
Technically, substitution operates as a formal change to the membership of the committee and lasts for as long as is determined by the instructing group, which operates against the principle of fixed membership of a committee.
Therefore, mindful of any lack of current provision, the primary purpose of substitution and the need to preserve political proportionality, a council’s constitution should always provide clarity as to when substitution operates and certainty as to when a member steps into the shoes of an absent member, provide that substitution lasts for one meeting only and that if a political group decides to fill a substantive seat by nominating a substitute member, it shall be by a member of their own group.
Geoff Wild is a Legal and Governance Consultant. He is celebrating his 40th anniversary as a local government lawyer.
This is the latest in a series of articles Geoff has written – previous contributions include:
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