On 31 July, Oldham Council’s Monitoring Officer and Director of Legal Services, Alex Bougatef, issued a Section 5 notification to all 60 of Oldham’s councillors.
This notification has legal implications for Oldham Council but under civil, not criminal law.
It is important to make the distinction between civil and criminal law because the notice created some confusion which has been translated into social media communications creating a misleading interpretation of the present situation. Breaches of civil law are unlawful, and breaches of criminal law are illegal with each being dealt with in very different ways.
There are a number of acts of parliament that apply to the situation in Oldham and that begins with Section 5 of the Local Government and Housing Act 1989 which obliges the Monitoring Officer to alert the Council to its potential of being in breach of legislation, ethical governance and accountability. It is not in itself a conclusion that the Council is acting unlawfully.
The legislation under which the Council may be in breach of its obligations are the Local Government Act 2000 and the Children Act 2004.
Under the Local Government Act 2000, a council, such as Oldham, is required to elect a leader and form a cabinet. There are other options depending on the type of council in question.
The first opportunity to establish that leadership was at the Annual Meeting in May which found itself unable to elect a mayor or leader.
The second opportunity came on 15 June followed by another resumption on 1 July and on to the Full Council meeting on 15 July. At each of those meetings the Council was unable to reach agreement on a Leader, leaving the Council in jeopardy of breaching its obligations under the Local Government Act 2000.
Councils are obligated to appoint a councillor with responsibility for children under Section 19 of the Children Act 2004. Without Oldham Council electing an executive leader and appointing a cabinet, this position remains unfilled.
This brings us to the issue of the Section 5 notification which effectively gives the Council 21 days to produce a solution to its potential breach of legal obligations. Consequently, a special full council meeting will be held on 20 August at 6PM and if an agreement is not reached, then Mr Bougatef will necessarily refer the matter to the Secretary of State for Housing, Communities and Local Government.
The Secretary of State has powers under the Local Government Act 1999 to intervene in circumstances such as identified under the Section 5 notice.
Recent instances of such action by a Secretary of State include Birmingham City Council in 2023 when a Section 114 notice was issued concerning the financial situation the council found themselves in and where commissioners were appointed to resolve the problem.
It should be noted that Oldham Council is not at present in any financial jeopardy and services are not threatened in the short term. The Council is not in criminal breach of any legal obligation and there is nothing preventing Councillors from representing their constituents in furthering their interests.
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