From the Black Country to Somerset

All four Somerset district councils are meeting on Friday to vote on whether to hold a vote. Originally the meetings were scheduled for 15 April. However as we reported earlier, on the 13 April, the district councils received an unfavourable legal opinion. That suggested that there was a risk, if they went ahead, of being held to have wasted public money. If you remember the furore around the referendum in Catalonia, the issues are surprisingly similar. I suspect councillors will not be going on the run or going to jail. But the issues and pitfalls are similar. The accusations against the Catalonia separatists was that they wasted public money.

So it was important for the district councils not to proceed until they found a favourable opinion. Now they have found a Queens Counsel (QC) who has offered them a favourable opinion.

Does that simply make it one each? Not exactly. The QC probably trumps the legal firm. However the QC has made it clear that all councillors should see the unfavourable opinion. And his own views are not quite as clear cut as you may have been led to believe.

So can a vote now be organised?

It all hinges on a town in the Black Country. The town of Wednesbury is probably not terribly well known in these parts. But in 1947 it made legal history. A decision over whether a cinema could open does not sound like the making of legal history. Well it was not so much the decision, as the ruling by the judge on reasonableness.

That ruling has set the standard of reasonableness for public bodies for generations since. “Wednesbury Reasonableness” sounds like a statement of the obvious:

  • in making the decision, a public body should not take into account factors that ought not to be taken into account, or
  • a public body must take into account factors that ought to be taken into account, or
  • a public body must not make a decision so unreasonable that no reasonable authority would ever consider imposing it.

So the district councils can only approve a poll if they meet those tests. You will be thinking that should be easy. But it is not as easy as you might think. The districts have a favourable legal opinion to work with but it comes with heavy warnings. And the papers for the meeting to not appear to pay a lot of attention to those warnings.

At issue here is the Secretary of State’s consultation. The QC notes that “They should consider whether the Referendum might be counterproductive in relation to the SOS’s eventual decision.”

He adds “Not only must the Districts have regard to all relevant considerations, also they must not have regard to any irrelevant/improper purpose, such as being seen to go down fighting or to be doing something.” In short he is quoting from the Wednesbury rules.

The QC adds several caveats that are important. he notes that yes the districts can lawfully hold a referendum. But caveats that by saying; “This is of course provided that the decision is arrived at in a lawful manner.” What that means is it cannot be for the purpose of thwarting the Secretary of State. It must also take account of his timetable. The purpose must be to inform him, not to score points of him.

And so here is an interesting dilemma. What If all those who vote in favour of a poll are on the record as Stronger Somerset supporters? And all who vote against are One Somerset advocates? That might well be seen as going down fighting for a cause. This is far from straightforward. And the papers given to councillors does not adequately point out the risks of getting it wrong.

The QC more or less repeats the warning when asked about “the risks to the Districts and their respective Members
and Officers should they resolve to proceed with a Poll
.” He notes “There may be a challenge; but I regard any risk of personal liability as being very low.” But then comes a similar caveat “This is of course provided that there is no improper behaviour such as having an improper purpose.

Here the districts have a problem. Each can proceed in good faith on an understanding of what their own councillors may or may not have said in the last few weeks. But do they know what other members of other districts have said? And to what extent are they “on the hook” for what others have said?

For instance do councillors in Mendip know what some councillors in South Somerset have alleged? For instance that the Conservative Government in alliance with Somerset County Council are trying to take over the districts. A poll posted on Facebook on 8 March by someone claiming to be Peter Seib is to that point. He is a senior cabinet member of South Somerset District Council (SSDC). In the post the author asserts “The Government wants to abolish South Somerset District Council“. He makes no mention of the fact that his own council also wants to abolish SSDC, a fact clearly stated in the Stronger Somerset proposals. In short the comment is clearly biased and a thinly disguised attack on the government.

That’s an interesting statement from a cabinet member.

Cllr Val Keitch is more direct in an email sent out to residents. She says “The Conservatives at Somerset County Council and the Government are planning to abolish our existing councils and replace them with a single mega council in Taunton – all without the people being given a say.

Could it call into question the motives of SSDC in calling for a poll? If the reasons for calling it were to thwart the Secretary of State, that would be a problem. The statement above would give credence to that point of view. It implicitly rubbishes the Secretary of State’s consultation.

Now there’s nothing wrong with either Cllrs Keitch or Seib holding that point of view from a purely political stance. But in terms of being neutral and holding a poll in good faith? Following the Wednesbury Reasonableness test? There’s a lot to be concerned about. I wonder if the QC giving his opinion was made aware of these communications before he gave his opinion.

The Leveller has not seen similar communications from other district councils. But those three other districts could be at risk because of ill-judged remarks from SSDC councillors.

This whole shambles is disappointing. Because actually holding a proper referendum is, surely, a very good idea. To some extent the districts should be praised for wanting to hold a poll. But not for the last minute way in which they have gone about things.

Friday 30 April may yet be interesting.

5 comments

  • Very interesting piece Andrew, although I can’t help but think most Councillors will not consider this issue holistically as you have clearly set out but rather do what their Leaders tell them. To that end we can assume this vote will pass ..with ease. You raise an interesting question though, in the absence of a binding referendum, what is the actual purpose of the Districts plan?

  • Interesting update. I think you’ve overstated this Wednesbury thing just a bit, though. It would be unreasonable for the District Councils to hold a poll AFTER the SoS has made a decision. Not whilst the decision is pending.

    • I think that is a fair point. The difficulty is establishing the time line. The Parliamentary recess is 22 July. The SoS is not going to announce anything on the day of recess, so probably around 15 July. At what point is the result of the poll going to be too close to the announcement date for it to be “reasonable”. In other words if the poll result is different to the SoS’s initial decision, he needs time to reflect, update and change that decision.
      The poll closes 4 June. I suspect delivering the details to the SoS by 15 June would be considered reasonable, by 10 July unreasonable (no science here – just common sense).
      And all dates in between are probably shades of grey.

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