To receive notification of any matters which the chair determines should be considered as urgent business and the special circumstances which have made the matters urgent, and to receive any announcements from the chair.
Minutes:
The Chair of Council, Councillor Robb, advised that, in accordance with Section 100B (4) (b) of the Local Government Act 1972, she had agreed to take one item of urgent business at the meeting – the election of a Leader of the council in light of Councillor Cooper given notice that she would be retiring as Leader of the council at the meeting.
The reason for urgency being that Councillor Cooper gave notice of her intention to resign after the publication of the agenda for the meeting. There must be continuity in terms of the Leader of the Council, and it is therefore important to ensure the council elects a new Leader which could not wait until the next Council meeting.
The Chair further advised that agenda item 10 – the report of the Leader of the council – would be taken at agenda item 7 to allow Councillor Cooper to provide her report. The urgent item would be taken prior to the other business on the agenda.
The Chair invited Patrick Arran, Head of Legal and Democratic and Monitoring Officer, to make a statement to clarify legal issues around the transgender motion adopted by Council at the December 2020 meeting. The text of the statement is set out below:
“Good evening councillors,
I have asked the Chair if I may have the opportunity of addressing Council regarding the motion to Council on the 22December 2020 entitled:
“Council notes that Trans people face significant disadvantage in society”.
I will be happy to discuss any issues regarding this statement with members outside the meeting, but I am not able to answer any questions during the meeting.
A corporate complaint was made regarding the motion by a resident, and I reviewed the background to the resolution and complaint shortly after I came into post. I have not upheld the complaint, and this was communicated to the complainant in my letter of the 23 of September 2021.
As a starting point, it is my view that the motion was clearly one
which Council was lawfully entitled to accept and make a resolution
upon. The motion
was political in nature, intended to be aspirational, was clearly
something of relevance to the Council and was non-binding in nature
or legal effect.
However, and perhaps understandably for a political motion, the wording of three elements of the resolution lacked legal precision in terms of definitions and impact.
This is certainly not a criticism - this is the nature of political discourse, politicians raise issues of genuine concern by way of motion as part of the democratic process.
As an aside, I am more than happy to help with the drafting of motions should any member require it, indeed, I would prefer to be involved at the formative stage of a motion.
I need to outline to Council for the record, the interpretation that we must place on certain elements of the resolution made. This is to ensure that there is no doubt about the considerations members and officers consider when making decisions around service provision.
Firstly, it is important that I make it clear that Council motions do not and cannot legally bind the Executive in relation to executive functions. In other words, the Council resolutions did not override or affect the lawful exercise of the Council’s public functions in relation to the provision of services, and no services have been affected by the resolution.
In short, the terms of the resolution must be read in the context that it is always subject to an implied requirement to act lawfully.
I would therefore provide clarity around the following elements of the resolution as follows:
“[t]rans men are men, trans women are women and that non-binary genders are just as valid”
The intent of the motion and the statements was to demonstrate support and solidarity with trans people. It was not intended to be an assertion of biological / and or social / and or legal fact.
However, for the purposes of making decisions around service provision, the Council is only permitted to legally recognise someone’s sex as that recorded at birth unless a gender recognition certificate has been issued.
The Equality Act is also clear that the right to recognition in one’s acquired sex is not absolute and there will be circumstances where the Council must recognise that there is a necessity for segregation in order to give due consideration to other protected characteristics such as religion or belief.
Whilst I recognise that the intent of the motion was to demonstrate support and seek to address disadvantages in society, the statement in relation to non-binary genders is legally incorrect because there is – perhaps currently - no legal recognition of such identity. As such, the Council cannot legally consider non-binary genders as a factor when making decisions.
“Ensure that all Council services, both directly provided and through partners, are fully accessible to all, regardless of their sexuality or gender identity”
I understand that the intent of the wording was to ensure that all services are fully accessible to all and is again intended to set out the Council’s commitment to the PSED.
There is a potential for this to be read as providing precedence to the protected characteristics of sexual orientation and gender re-assignment which, though
not the intention, needs to be clarified. Essentially, the way in which this would be applied is that services would be accessible to all in accordance with the law and officers would ensure that there would be no unintended consequences.
“that the Council’s constitution, policies, forms, and all internal and external communications are gender neutral”
The Council cannot legally commit to gender neutrality as suggested by the resolution. Again, I entirely accept and appreciate that this element was intended to demonstrate solidarity with trans people, but it could lead to unintended consequences in the unlikely event it was interpreted in too restrictive a way.
It would be a disproportionate approach in that it goes beyond that which might reasonably be regarded to protect the rights of trans people without apparent consideration for the rights of others.
Thank you”.
The Chair provided general housekeeping information.