Glasgow Corporation v Flint. Flint v Glasgow Corporation
| Jurisdiction | Scotland |
| Judgment Date | 16 March 1966 |
| Docket Number | No. 16. |
| Date | 16 March 1966 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
BurghBurgh accountsObjectionsSundry services accountsPayments for home telephones for town councillorsWhether ultra vires.
The Corporation of Glasgow made payments to town councillors towards the cost of telephones in their homes. These payments were charged against the sundry services accounts and therefore formed a charge on the funds raised by the levying of rates.
Held that as admittedly there was no express statutory power to make the payments and as there was no express statutory power to which they were incidental, the payments were illegal.
BurghBurgh accountsObjectionsCommon good accountsPayments for home telephones for town councillorsPurpose to facilitate communication between councillors and constituents and so benefit the citizensLocal Government Act, 1948 (11 and 12 Geo. VI, cap. 26), secs. 112 (1), 114 (3), 115.
BurghMagistrates and town councilValidity of exercise of powersIncidental benefit to councillors.
Sec. 112 (1) of the Local Government Act, 1948, enacts:"A member of a body to which this Part of this Act applies shall be entitled to receive a payment where (b)additional expense to which he would not otherwise have been subject is necessarily incurred by him for the purpose of enabling him to perform any approved duty as a member of that body " Sec. 114 (3) enacts:"Where a body to which this Part of this Act applies has power, otherwise than under this Part of this Act, to defray expenses incurred by any person in respect of which that person is entitled to a payment under this Part of this Act, that power shall not be exercised otherwise than in accordance with the provisions of this Part of this Act " Sec. 115 enacts:"In this Part of this Act the expression approved duty in relation to a member of a body, means (a) attendance at a meeting of the body (b) the doing of any other thing approved by the body for the purpose of, or in connection with, the discharge of the functions of the body " All these sections are in Part VI of the Act.
In order to facilitate communications between individual councillors and their constituents, and so benefit the community, the Corporation of Glasgow made payments from the common good to such town councillors as chose to claim towards the cost of installing telephones in their houses, the rental and calls. The Corporation did not act in accordance with the provisions of sec. 114 (3).
Held (1) that, although a councillor might gain some incidental advantage, he was not thereby in breach of his fiduciary duty; (2) that sec. 114 (3) did not apply in respect that the expense of a telephone was not (a) necessarily incurred or (b) incurred to enable a councillor to perform an approved duty; and (3) that as the primary purpose was to benefit the whole community, the payments were legal.
BurghMagistrates and town councilValidity of exercise of powersMembers having pecuniary interestLocal Government (Scotland) Act, 1947 (10 and 11 Geo. VI, cap. 43), sec. 73 (1).
Sec. 73 (1) of the Local Government (Scotland) Act, 1947, enacts:"If a member of a local authority has any pecuniary interest direct or indirect in any contract or other matter and is present at a meeting of the authority at which the contract or other matter is the subject of consideration, he shall not vote on any question with respect to the contract or other matter."
Members of a town council voted on a proposal that telephones should be installed at the expense of the corporation in the homes of such members as asked for them.
Held that sec. 73 (1) applied only to an interest of a member as an individual, not to an interest which arose solely by reason of his membership, and therefore did not prohibit the members from voting on the proposal.
Sundry Services Accounts Case.
On 6th May 1964 the Secretary of State, having received an interim report from David Flint, chartered accountant, the auditor of the sundry services accounts of Glasgow Corporation, intimated to the town clerk of Glasgow that certain payments made by the Corporation and charged against these accounts were ultra vires and therefore illegal, and that he proposed to decide accordingly, and at the request of the Corporation he stated a case for the opinion of the Court of Session.
The case set forth that the following facts were admitted or had been established:"At a meeting of the Corporation of the City of Glasgow (hereinafter referred to as the Corporation) held on 25th October 1962 a motion in the following terms was carried: That the Corporation grant to its elected representatives allowances in respect of home telephone expenses. Thereafter the Corporation agreed that the motion be remitted to the General Finance Committee to prepare and submit to the Corporation for approval, details of the scheme of allowances proposed for adoption. On 2nd November 1962, at a meeting of the said General Finance Committee a motion was carried approving a scheme for the provision of home telephone facilities for the members of the Corporation. The said scheme was in the following terms: while it was to be understood that members were under no obligation to accept any payment under the proposed scheme or to arrange for the installation of telephones where none existed(a) the installation charge be paid by the Corporation (any additional charges, e.g., extensions, coloured telephones, etc., to be met by the members), where no telephone existed, and (b) an allowance equivalent to the annual rental plus 3 per annum towards calls be paid by the Corporation half-yearly in arrears as from 1st November 1962. On 8th November 1962, at a special meeting of the Corporation there was carried a motion approving that portion of the minutes of the said General Finance Committee in which the said scheme was embodied. Thereafter, following upon and in terms of the said scheme, the Corporation made certain payments to members of the Corporation in respect of home telephone allowances. In the year to 31st May 1963, the said payments were as follows:
Telephone installation charges |
63 0 0 |
Allowances equivalent to |
|
Annual rentals |
305 18 4 |
Calls at the rate of 3 per annum |
67 4 5 |
436 2 9 |
The said payments were duly recorded in the accounts of the sundry services of the Corporation and accordingly formed a charge on the funds raised by the Corporation by means of the levying of rates. On 21st June 1963 David Flint, chartered accountant, the auditor appointed by the Secretary of State for Scotland under and in terms of section 197 of the Local Government (Scotland) Act, 1947, to audit the said accounts, made an interim report to the Secretary of State in terms of section 201 of the said Act. In the said interim report the said auditor stated that, for the reasons therein outlined, the said payments were in his opinion contrary to law. Thereafter, the Secretary of State caused the said interim report to be intimated to the Corporation and to the town clerk thereof. In response to the said intimation the Secretary of the Scottish Development Department received a letter dated 29th July 1963 containing submissions and arguments in support of the legality of said payments."
The town clerk's letter dated 29th July 1963, referred to in the stated case, contained the following passage:"It was within the knowledge of the Corporation that similar facilities (varying only in degree) had been provided by many other local authorities in Scotland (in some cases for a long period of years) without exception being taken to or questions raised as to the legality of such expenditure. The opinion is widely held that under modern conditions the telephone is a normal mode of communication, replacing the need for lengthy correspondence and to a great extent providing a better and more efficient means of allowing members to carry out their many and varied functions. Notepaper and envelopes have from time immemorial been made available to councillors for their official correspondence without question. The extension of the principle to telephone facilities is regarded as a natural corollary in the interests of good administration. It is submitted that the Acts and regulations quoted by the auditor have no relevance or bearing on the question. Specific statutory authority cannot always be quoted for every single act of a local authority, as was evidenced in the case ofGraham v. Corporation of GlasgowSC, 1936 S. C. 108. Much must be read into the general powers of a local authority to take appropriate steps to permit it and its members to carry out the statutory functions imposed on them by Parliament in accordance with normally accepted standards of administration. It is on this basis that the Corporation, following the practice of many other local authorities, seeks to justify the provision of telephone facilities in the homes of councillors within the reasonable limits which have been laid down in the Corporation's resolution."
The question of law was:"Were the said payments in said accounts ultra vires of the Corporation and accordingly contrary to law?"
The case was heard before the Second Division on 21st and 22nd December 1965, when the Lord Advocate (Stott, Q.C.) and Prosser appeared for the Secretary of State, outlined the relevant statutory provisions and narrated the circumstances, but made no submissions.
The cases were advised together on 16th March 1966,
LORD JUSTICE-CLERK (Grant).These two cases are stated by the Secretary of State for the opinion of the Court of Session under section 201 of the Local Government (Scotland) Act, 1947.3 They relate to payments made by Glasgow Corporation to certain councillors to cover the installation costs and rental of telephones in their private houses, together with a small fixed sum towards the cost of calls. For the year to 31st May 1963 these payments were made out of rating income, being charged to the sundry services account. For...
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