Baroness Hanham
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, in Committee, I gave a commitment to consider the noble Lord’s amendments aimed at removing the Secretary of State’s powers to make regulations prescribing rules and restrictions about the discharge of functions of local authority executives by area committees. I am delighted to say that today we are bringing forward amendments which achieve those aims.
Amendments 120 to 131 and 160 delete in their entirety the Secretary of State’s powers to make regulations in relation to area committees and remove unnecessary conditions, which previously applied to the creation of such committees, including the maximum area that a committee could cover. In future, councils will be free to set up whatever area committees they wish and give them whatever executive functions they consider appropriate without having to rely on regulations made by the Secretary of State. I hope that noble Lords will agree that this is a good deregulationary part of my work. I beg to move.
Lord Jenkin of Roding
I very much welcome what my noble friend has said. I shall refer to this a little later when we come to the Amendment 155 group.
Lord Beecham
My Lords, I welcome the noble Baroness’s acceptance of the concerns that were raised and their reflection in this group of amendments. If we could have similar co-operation over the rest of the Bill, we would be delighted—and surprised.
Baroness Hanham
“(iiia) by an area committee,”
“(aa) by an area committee,”
(a) by an area committee, or(b) ”
(a) by an area committee, or(b) ”
“(5A) Where by virtue of this section any functions may be discharged by an area committee, then, unless the senior executive member otherwise directs, the committee may arrange for the discharge of any of those functions by an officer of the authority.”
““senior executive member” means—(a) in the case of a mayor and cabinet executive, the elected mayor;(b) in the case of a leader and cabinet executive (England), the executive leader.”
Baroness Hanham
Baroness Hanham
My Lords, I gave a similar commitment in Committee to consider the amendments which aimed at removing overly prescriptive and complicated arrangements on necessary regulation-making powers in order to simplify and strengthen local government’s scrutiny arrangements. Having considered the issues carefully, including with the Centre for Public Scrutiny, I am pleased to bring forward amendments which achieve a number of these aims.
On the removal of unnecessary restrictions on referral of matters by non-committee members, Amendments 134 to 139 remove prescription about matters which may be referred to a scrutiny committee by councillors who are not members of the scrutiny committee. In future, these councillors will not be restricted to the referral of local government matters only. Instead, they may refer a wider range of matters to scrutiny committees for consideration, thus enhancing their role as advocates of their local communities.
In terms of referral of matters to the scrutiny committee, the amendments broaden the range of issues that can be brought before that committee by non-committee members. It will, of course, remain for the scrutiny committee to decide what course of action is appropriate following any referral, as is the case now.
With regard to local improvement targets and local area agreements, Amendments 140, 142 and 147 remove the link between local government scrutiny and local improvement targets in local area agreements. Partner authorities will be required to have regard to the reports and recommendations of scrutiny committees that relate to any of their functions exercised in relation to the committee’s area or residents of that area. This empowers local authorities to hold partner authorities to account for wider activities they undertake, thus ensuring that local people have a say on matters that affect them.
On the simplification of local government scrutiny arrangements, our remaining Amendments 132, 133, 141, 143, 144, 145, 146, 148, 149, 150 and 164 place the scrutiny committees of non-unitary district councils into an equivalent position to those of other authorities. They enable scrutiny committees in non-unitary district councils to hold partner authorities to account, and at the same time the amendments greatly simplify the scrutiny provisions and remove delegated powers of the Secretary of State.
I hope that noble Lords will agree that these amendments represent an improvement to the provisions, and will therefore be happy to accept them.
Lord Beecham
My Lords, I confess that I find it difficult to keep up with the speed of the amendments, but I will try. I hope that noble Lords will forgive me if I have misunderstood something. I say again that I welcome the thrust of the amendments in this group. However, I am not clear about Amendment 133, which refers to page 215 of the Bill. It appears to delete a reference to scrutiny of crime and disorder matters. I may be wrong, but as I read it, the amendment takes out the obligation or possibility of an overview and scrutiny committee scrutinising the police. I may have that wrong: it does not sound right as I say it. However, looking at the drafting, I wonder whether the amendment has that effect. New Section 9F states:
“An overview and scrutiny committee of a local authority may not discharge any functions other than … its functions under this section and sections 9FA to 9FJ, … its functions under section 19 of the Police and Justice Act”.
I would like confirmation that it will still be possible to scrutinise such matters.
I presume that the passenger transport authorities that we have just referred to, with their extended powers, would potentially be subject to scrutiny as a local authority partner. If that could be confirmed, I would be delighted and would congratulate the Minister on this group of amendments.
Baroness Hanham
My Lords, I am sure that there is a fantastic explanation for this, but I am bound to say that at the moment I do not have it to hand. I am sure that the intention is to ensure that scrutiny continues, because that is our whole purpose. If I get a note in the coming seconds, I will share it with the noble Lord. If I do not, I will write with the answer and apologise for not being able to respond in person.
Baroness Hanham
(i) the authority’s area, or(ii) the inhabitants of that area.”
(i) the relevant committee is a non-unitary district council committee, or(ii) ”
“non-unitary district council committee” means—
(a) an overview and scrutiny committee of a district council for a district in a county for which there is a county council, or(b) a sub-committee of such a committee,”
“relevant partner authority”, in relation to a relevant committee that is a non-unitary district council committee, means—
(a) the county council for the county concerned, or(b) any person (other than the district council concerned) who is a partner authority in relation to that county council for the purposes of Chapter 1 of Part 5 of the Local Government and Public Involvement in Health Act 2007, other than a chief officer of police.”
Lord Beecham
Lord Beecham
My Lords, the amendment deals with matters affecting a more controversial element of the Bill: namely, the position relating to elected mayors. It deals with the power of the Secretary of State to make various regulations and prescriptions concerning the election of such mayors, to which new Section 9N in the schedule also relates. I note that the Electoral Commission has taken the view that:
“Elections for Mayor are often exciting local affairs, with colourful personalities clashing on issues relevant to their area”.
That is an interesting piece of publicity for the concept, which my noble friend Lord Adonis will undoubtedly confirm. However, there are some reservations, to put it mildly, about the strength of the argument behind it, which suggests that elected mayors are a superior form of local governance calculated to promote greater interest in local democracy and a higher turnout.
The Lord Bishop of Birmingham
My Lords, I listened with interest to the argument of the noble Lord, Lord Beecham. I bring before the House an amendment that assumes that there will be a process for elected mayors in the foreseeable future. I was part of a cross-party community group from Birmingham that met the Secretary of State for Communities and Local Government last Thursday. We found that our concerns were listened to favourably. They are reflected in the amendment that is before the House this evening. The city of Birmingham is expecting to have a vigorous debate leading up to a referendum in May 2012 on whether to have an elected mayor. As some noble Lords will know, Birmingham has a long tradition of vigorous civic leadership, not least in the past 20 years of the present arrangements. Now, in the largest local authority in the country, in a creative city of many faiths and cultures that trades in a global market, there is a desire for continued and even enhanced strong and vigorous governance.
In the event of a yes vote, Amendment 151C seeks to have an election for mayor as soon as possible after the referendum. There are two benefits of this that we put to the Secretary of State, which we think he heard favourably, especially when there are vital financial, social and cultural decisions to take. First, we seek to minimise the potential paralysis in leadership over many months between a referendum and an election for a mayor, and secondly—which should be of interest to all of us at this stage—we seek to keep the cost of any mayoral election to a minimum. I do not doubt that there are factors about other elections under consideration, but I ask the Minister to respond favourably to this amendment. If Birmingham and other cities in the country say yes to having a mayor, we expect the mayor to be in post without delay and at minimum cost.
Lord Adonis
I strongly support what the right reverend Prelate has just said. In my role as director of the Institute for Government, I joined the cross-party civic delegation from the city of Birmingham that met the Secretary of State last week and raised the issue that the right reverend Prelate has just described about what will happen after the referendum next May if there were to be a positive vote. The view strongly held in the city of Birmingham, and in other cities where the issue of an elected mayor is being debated at the moment, is that it is unacceptable for there to be a full year’s delay between a positive referendum result and the first election of a mayor to take charge of the city’s governance. Essentially, we would have a year of paralysis in which the existing administration would be a lame duck. My noble friend Lord Beecham holds strong views against mayors, but I imagine he will agree that it is not a good idea to leave the government of a great city in a state of limbo for a full 12 months.
The purpose of the amendment tabled by the right reverend Prelate, to which I put my name, is to encourage the Secretary of State to align the first mayoral election with any other election that may be taking place in those cities between May 2012 and May 2013, which is fully within the discretion that the Secretary of State has to make regulations specifying the date of the first election. Even if there were not to be an election in those cities earlier than May 2013, it may be that there is a case for the first election of the mayor to take place before that date.
The Institute for Government published a report a few weeks ago highlighting the paralysis that would follow a positive election result if no election for the mayor were to take place for a year. In that report, we suggested that the first election for the mayor should take place in September 2012. If there is to be an election for police commissioners across the country in November 2012—a matter to be debated by the House later this week—aligning the first mayoral election with the police commissioner election would make a great deal of sense. It may be that the will of the House and of Parliament will be to move the police commissioner election to a later date. Whatever the date of the first elections to take place in cities with a positive referendum result, the first elections after May 2012 should, by the will of the leaders of those cities, take place a great deal sooner than May 2013, and if it is possible to align them with other elections that would be the best course.
What we are looking for from the noble Baroness is a sympathetic response to the argument for an early mayoral election where there is a positive vote in the referendums next May and any encouragement that she can give to the concept of aligning the first mayoral election with any election that might take place sooner than May 2013. In particular, if police commissioner elections are to take place in autumn 2012, any words of encouragement she can give as to the willingness of the Government to bring forward regulations that would align the first mayoral elections with those police commissioner elections would be very well received in Birmingham and in the other cities where there may be a positive referendum result next May.
Baroness Hanham
My Lords, I thank noble Lords for raising these matters. I have an immediate answer to the noble Lord, Lord Beecham, about whether the orders would come to Parliament: where there is a proposal for a referendum, that is an affirmative order in Parliament. I think I explained that in Committee. It is Parliament’s decision brought forward at the time of the secondary legislation. Mayors will not be forced on any cities, as I have said on many occasions, but cities will be obliged to take it into consideration in a referendum and those will all come to Parliament.
Amendment 151A seeks to take away the power of the Secretary of State to make regulations setting the date of elections for, and the terms of office of, elected mayors. As the noble Lord, Lord Adonis, and the right reverend Prelate the Bishop of Birmingham have said, Amendment 151C seeks to provide that any first mayoral elections shall take place no later than the first date of elections in the area. As the noble Lord, Lord Adonis, explained, that would be any election that was likely to take place after a referendum on 15 November 2012.
As I have explained previously, the regulating power would allow for an earlier first election than May 2013. Such an approach would be in line with previous practice, where first elections for mayors have on occasion taken place in October, before reverting to the usual May cycle. I know the right reverend Prelate and the noble Lord, Lord Adonis, have had discussions with the Secretary of State about this. The most encouraging I can be is to say that the issue is well understood; no decisions have yet been taken on it but we are due to produce secondary legislation before the end of the year and decisions will be taken before then. I am sure the noble Lords will be involved in some of the discussions on that. I cannot give a firm commitment at the moment that that will happen but, as I say, there is a very clear understanding of the proposals made and the reasons and rationale behind them.
Those were not very long answers but they were not very long amendments. I ask noble Lords not to press their amendments in the light of my response.
Lord Beecham
My Lords, I am grateful to the noble Baroness for her assurance that parliamentary approval will be required before designating any authority to have a referendum. However, I am surprised and disappointed that it should be thought necessary for the Secretary of State to prescribe a referendum when it is evident from the absence of any requisition by a mere 5 per cent of the electorate that there is any such interest from the local community to start with.
Moving on to the amendment tabled by the right reverend Prelate and supported by my noble friend, I find it surprising that it should be thought that paralysis would ensue if there was a delay of a year between the referendum and a subsequent mayoral election. It could even have been argued that it would have been better to have followed the precedent of the 1973 local government reorganisation, when a shadow authority was elected and did not actually take office for a year. That actually gave the incoming authority time, on new boundaries and all the rest of it, to assimilate the problems of the area and develop an appropriate response, changing structures and the like. To suggest that it is essential to move straight into the position where the nature of the authority changes during the year strikes me as illogical, potentially disruptive and damaging, and in fact onerous for the newly elected incumbent, should there be any newly elected incumbents to that position. He or she would be entering into office half way through the year, unable to do very much at all about the existing budget, and contending with structures that would be difficult to rearrange in a short time.
Moreover, in terms of cost, surely it would be less expensive to have an election coinciding with the normal municipal election in the following year. I quite take the point made by the noble Baroness that there have been some instances of mid-year referendums, but if one is looking at the issue of cost it is, I should have thought, clearer that there would be a cost saving to have them at the same time as the local election. Indeed, that point has been made for us, conveniently, in connection with the debate over the timing of the elections for police commissioners, if indeed we are to have those.
Lord Adonis
Is my noble friend aware that in only one of the cities in which referendums are going to be held next May will there be a municipal election in 2013? In all of the other cities there would need to be a special election held in May 2013 if the election of the mayor were to take place anyway. I assume that my noble friend does not think that paralysis is an issue. I do not understand the read-across with shadow authorities at all—a shadow authority has been created, whereas the mayor by definition has not been elected, so that point does not hold. I assume that my noble friend, in his antipathy to mayors, does not think that it is a good idea to delay by a full two years the interval between a positive referendum result and the first election of a mayor.
Lord Beecham
I am certainly tempted to think so, but I will resist the temptation. In any event, what would be the worst thing of all, I suspect, is the coincidence of a police commissioner election and a mayoral election. We would then have two elections which would be, and I quote again,
“exciting local affairs, with colourful personalities”,
with one running for mayor and one running for police commissioner, and, quite conceivably, on conflicting manifestos. I think that that would be an absolute recipe for confusion and the worst of all possible worlds. We will revert, no doubt in a couple of days, to the issue of the timing of any police commissioner elections, but if the current intention of the Government is to proceed in November, then I think that that makes the proposition advanced by the right reverend Prelate and my noble friend quite difficult and untenable. I hope that the Government will think again, or think further, about the proposition that has been put to them, and will in particular avoid that coincidence.
For myself, I think the shadow proposition would actually be better, but of course there is not an amendment to that effect, so I cannot very well move it. I think the worst of all possible worlds would be police commissioner elections and mayoral elections in however many authorities there will be—there are 11 authorities coming forward. So I hope that the Government will, on this occasion, prove unbending. I beg leave to withdraw my amendment.
Baroness Hanham
Baroness Hanham
My Lords, I am giving prezzies all through this part of the Bill. I cannot believe it. It seems an unusual situation, which is why I am commenting. In Committee, my noble friends Lord Tope and Lord Palmer of Childs Hill tabled amendments aimed at removing any delay between the time a local authority resolves to change its governance arrangements and the implementation of that change. During the debate, I stated that I had some sympathy with the points raised by noble Lords, particularly about the time that has to elapse before changes in governance arrangements can be implemented.
Having taken this matter further, I am happy to tell noble Lords that Amendments 152 to 154 build on their amendments to deliver the desired effect. In essence, these amendments provide that, after a passing of a resolution to change governance arrangements, a local authority can make that change, in the case of moving to the mayoral model, three days after the election of the first mayor; in the case of moving from the mayoral model, three days after the end of the term of office of the serving mayor; and, in all other circumstances, including moving to the committee system, at the first annual meeting after the resolution or such other later annual meeting specified by the local authority itself in its resolution to change governance arrangements. Local authorities therefore will be able to resolve at any time to change their governance arrangements and implement those changes without any unnecessary delay and at a time that best suits their circumstances.
In Committee, there were clearly concerns that there was a hiatus between a proposal put forward for new governance and its being able to be implemented. It seemed quite a long time, so we have taken account of that and I hope the amendments make it clear that there need not be any delay. I beg to move.
Lord Tope
My Lords, I thank the Minister for expressing her sympathy for what we were saying so well tonight. We of course welcome these amendments. I had the distinct impression that because of this not being perhaps a major part of the Bill, the Government had not properly taken account of the effect that if those councils which wished to change their governance arrangements now, as soon as they are able to under this Bill, had whole council elections, as we have in London and a number of other parts of the country, they would be waiting until after 2014 to be able to make the changes. Those councils which had whole-council elections this year would have to wait another four years to do it. That made no sense so I am pleased that the Minister recognised that and I welcome these amendments.
The amendments will be particularly welcome in a number of councils—certainly ones in London that I know of—which have, in effect, already changed their governance arrangements but hold meetings of the executive after the committee meetings. The meeting of the executive lasts for five minutes and agrees with every decision just taken by the committee. That is the procedure they use in order to get around the system as it is at the moment. It would clearly be even more of a nonsense if that sort of thing were to carry on for another two or three years. I welcome these amendments very much and I know that they will be welcomed in a number of councils, including my own, which are intending to make these changes as soon as the law permits.
Lord Beecham
My Lords, the ingenuity of the noble Lord’s colleagues defies description. I certainly welcome this sensible amendment. However, it is timely to say a word in favour of the leader and executive model and, in particular, to draw attention to the one part of the recent publication by the noble Lord, Lord Adonis, with which I agree. In relation to elected mayors, the paper makes a strong point. I told him that I agreed with something he had written and he was surprised. The relevant part is the emphasis that he makes about the need for a strong and independent scrutiny function, with which I entirely agree under whatever system is operated—be it mayoral, leader and executive or a straight committee system.
There are those who are still in love with the old-style committee system; the notion that you have a collection of Socratic city elders engaged in philosophical dialogue about the affairs of state in a particular borough or authority. I am bound to say that that does not accord with my own experience, particularly after serving for many years as chairman of committees, leader of the council, and so on.
When I departed to the Siberian power station of the arts and recreation committee, having given up the leadership and any other executive position—by choice I may say; it was self-imposed exile—I discovered that as a back-bench member of the traditional committee system one’s influence was pretty limited. When you are in the chair you can move things on quite briskly: you have an agenda and you get it through. When you are a back-bench member you usually have a political group meeting beforehand. It may last about an hour and there are 12 or 15 of you, which gives an average of four or five minutes each. The point of the formal meeting is to get it over with as quickly as possible. In reality, very little of the purported scrutiny takes place in the traditional committee system nor is there very much influence over policy.
That was summarised for me most effectively one day—I hope your Lordships will forgive this brief anecdote. I had missed a committee meeting of the arts and recreation committee but went to the next one. I read the minutes, which said that a member had raised a question about birds eating the grass seed in the Leazes Park allotments. I thought to myself, “Has it really come to this?”. We had an £800 million budget, with goodness knows how many problems and opportunities to debate, and the most the member could think of to raise at a committee meeting was birds eating grass seed at an allotment. I do not say that that entirely characterises the committee system, but there is some danger of that happening.
The main thrust of my, perhaps somewhat tedious, observations is to recommend that, whatever the circumstances, there must be a strong and independently sourced scrutiny role, not only to hold the executive to account, because perhaps too much of scrutiny has been based on a retrospective look at the actions of an executive, but to look forward, and, as it should be, in an unwhipped forum, at policy, development and so on. That is not incompatible with a committee system, but in reality, in my experience, it rarely took place that way. It needs a push for strong scrutiny and I hope that irrespective of the provisions of the Bill, the Government will encourage authorities to maintain and enhance that scrutiny role, whatever type of authority they are and whatever model of governance they adopt. I certainly would not oppose these amendments to give councils the option to choose their own system.
Baroness Hamwee
My Lords, my noble friend, who I understand has executive responsibility for grass seed in the London Borough of Sutton, along with allotments and other matters, would have wanted to have come back to say that these amendments are not about the merits of any particular system, but about local decisions about what is appropriate for each local authority.
I think that the noble Lord, Lord Beecham, would agree that scrutiny is a developing art rather than a science, and that the experience of different systems over the past 10 years has contributed to an extension of that expertise.
This is not much of an anecdote I am afraid, but my first experience of scrutiny was as a member of what we then called the performance review committee, which was formed largely to respond to what the Audit Commission had to say about what was going on in the authority. My goodness, things have moved a long way since then. I agree with the noble Lord that if scrutiny is to be good, it needs to be much more constructive than simply looking back and commenting on decisions and actions that have been taken.
I do not think that what underlies these amendments needs in any way threaten the development of scrutiny. Further, I should declare an interest as a member of the advisory board at the Centre for Public Scrutiny. It will be interesting to see how the art of scrutiny develops further under another mix of arrangements across authorities.
Baroness Hanham
My Lords, I was fascinated by the ruminations of the noble Lord, Lord Beecham, on the committee system. He had some lovely anecdotes and we enjoyed them enormously. The fact is that whether or not the noble Lord likes the committee system, it is now going to be part of the governance arrangements that local councils can decide to use. The important aspect of the amendment is to ensure that there is no hiatus in any change of governance and that it can be implemented immediately. We all know what happens when there is a gap and you have to wait a long time to implement another stage.
I agree with my noble friend Lady Hamwee about scrutiny. Nothing in these arrangements would stop a local authority from having scrutiny committees. If it has a committee system, it can have a scrutiny system running alongside those arrangements. Nothing here would put those arrangements under threat. In broad terms, the noble Lord, Lord Beecham, may have supported these amendments, although he did have a little beef, to which we all listened with great interest, about the committee system. I beg leave to—
Lord Taylor of Holbeach
My Lords, perhaps we could reconsider government Amendment 152.
Baroness Hanham
“(3) Subject to subsection (2) and section 9MB(2), the local authority may take steps for the purposes of preparing for the change or implementing it (including steps relating to transitional arrangements).
(4) If the local authority is not currently operating a mayor and cabinet executive and the change does not provide for the local authority to operate a mayor and cabinet executive, a “relevant change time” for the purposes of subsection (2) is a time during—
(a) the first annual meeting of the local authority to be held after the resolution to make the change in governance arrangements is passed, or(b) a later annual meeting of the local authority specified in that resolution.(5) If the local authority is not currently operating a mayor and cabinet executive and the change provides for the local authority to operate a mayor and cabinet executive, a “relevant change time” for the purposes of subsection (2) is—
(a) a time during the third day after the day of the declaration of the result of the poll at the first election of the mayor, or(b) if a person is returned as the mayor at that first election without a poll being taken, a time during the third day after the day on which a poll would have been taken.(6) If the local authority is currently operating a mayor and cabinet executive and the change provides for the local authority to cease to operate a mayor and cabinet executive, a “relevant change time” for the purposes of subsection (2) is a time during the third day after”
Lord Jenkin of Roding
Lord Jenkin of Roding
My Lords, noble Lords may recollect that on several occasions during the Committee stage I was moved to criticise and protest about the mass of detailed prescriptive measures in the Bill, with the prospect of more to come through the battery of regulations that are foreshadowed in the legislation. My main point can be stated very simply: at the centre of Part 1 is the welcome provision that gives local authorities a general power of competence. Whereas in the past they could do only what statute allowed them to do, now they will have the same competence as individuals. In other words, at a stroke local authorities can cast off the shackles of government control. Yet at almost every point in this Bill, in every part and schedule, there are pages and pages of directions going into the minutest detail of how local authorities must implement these provisions.
As I pondered this my mind went back to what is, I am afraid, another anecdote in the form of an old political joke. A communist orator was haranguing the crowd saying, “It’s the rich who have their dinners at the Ritz hotel and the poor have to go to Smokey Joe’s. But when the red revolution comes and you get your freedom, it will be the rich who will have to go to Smokey Joe’s and you’ll be able to eat your dinner in the Ritz”. The little man at the back put up his hand and said, “I’d rather go to Smokey Joe’s”. The orator said, “When the red revolution comes and you get your freedom, you’ll damn well do what you’re told”.
The local authorities associations have made it very clear that they dislike being told how to do things. They dislike being told how to write letters, how to conduct referendums, how to co-operate and much else besides. I voiced their dissatisfaction and I was not alone. In all parts of the House, noble Lords supported my protests, and at times I became quite heated.
My noble friend Lord Tope, who is very experienced in these matters, noted that there has been a culture in Whitehall whereby they feel they have a duty to tell local authorities how to carry out their functions. However, he also noted that the local authorities themselves have absorbed that culture to the extent that they now expect to be told how to do things. My noble friend on the Front Bench has already indicated some movement in this and we are very grateful.
Before the Recess, I sought out my right honourable friend Greg Clark, the Minister of State in charge of the Bill. He agreed to meet me with a deputation from the Local Government Association and London Councils. At that meeting, which happened a few days after the start of the Recess, we set out our concerns and provided him with a long list of detailed provisions, which we believed could be dropped without affecting the purposes of the Bill.
After discussion, the Minister agreed. He agreed that his officials and those of the associations should get together during the Recess with a view to agreeing what might be dropped. Last week I was sent a long letter from the department setting out the amendments whose purpose Ministers were minded to accept, others which they were reluctant to accept, and some where decisions still have to be made. It was not everything but it is a very good start. I expressed my pleasure both to the officials and to the Minister.
The House has already welcomed Amendments 120 to 131 removing the powers to make regulations in respect to area committees and conditions which apply to the creation of such committees. We have also just accepted Amendments 132 to 150, substantially simplifying the scrutiny provisions, and these certainly stemmed from the discussions.
I am told other amendments will be tabled about the frequency and conduct of referendums. We will also come to the amendments on the right to challenge, Amendments 197E to 197G, where there is to be guidance instead of statutory prescription. There are also amendments on the community right to buy, Amendments 203, 203B and 203C.
These are a very welcome start and there is the prospect of more to come, especially on planning. Some of my amendments in the group, led by Amendment 155, have been dealt with, and I warmly welcome the government amendments in the group.
I end by picking out two of my amendments—it would be tedious to go through the lot—that have not been accepted so far. They are Amendments 158 and 159 on referendums, and Amendment 204 on the duty to co-operate. On referendums, there are two distinct issues: first, when and in what circumstances a referendum should be held; and, secondly, how they should be conducted. On the first issue, it would seem sensible to deal with that on each occasion that it comes up in the Bill, because they may differ from case to case. On the second issue, however, it really is necessary to stop telling local authorities how to suck eggs. They have great experience in running referendums and they should be trusted to do that properly, not have to be told how to do it.
Amendment 204 refers to the duty to co-operate set out in Clause 98. I really do not believe that local authorities need to be told how to co-operate. They, after all, have been co-operating with each other for a very long time and it is an impertinence to have to spell out in the Bill how they are supposed to do it. They are well accustomed to doing it and they should be trusted. I hope that my noble friend may be able to comment on both the referendums and the duty to co-operate.
I referred at the beginning of my speech to the culture—perhaps it might be better called a mindset—whereby Whitehall feels that it has to tell local authorities how to conduct their functions, while the local authorities expect to be told. If the general power of competence is to mean anything in practice, that culture—that mindset—has to be changed. The best way to start changing it is to stop doing it. I beg to move.
Baroness Hamwee
My Lords, unless the Minister is about to move the government amendments—I was wondering whether she was going to do that—perhaps I should keep going.
Baroness Hanham
Perhaps I will move those amendments—that is, I will speak to them. I am constantly being reminded about that, and quite rightly too. They are Amendments 156, 157 and 162. In Committee, as the noble Lord, Lord Jenkin, has reiterated, there are a number of provisions in Schedule 2 to the Bill which noble Lords considered were either overly prescriptive or unnecessary. While I have not been able to act on all of their concerns, Amendments 156 and 157 remove provisions in relation to the actions a local authority must take following a referendum about a change in governance model. I hope that that will be another of the deregulatory ways that we deal with today.
In doing so, these amendments put beyond any doubt that local authorities must act in accordance with the wishes of local people as expressed at a referendum. In light of the Delegated Powers and Regulatory Reform Committee’s comments we have also tabled Amendment 162, which provides that regulations made under Section 9MG in relation to the conduct of governance referendums will be subject to the affirmative resolution procedure.
Baroness Hamwee
My Lords, I was intending to comment on only one of the noble Lord’s amendments. I agree very much with the thrust of his comments but I would simply take up with him whether at this point we should be dealing with Clause 98. I am concerned about applying the general points that he has made at this stage to a very contentious part of the Bill. As he said, Amendment 204 would delete the provision for statutory guidance about the duty to co-operate, which is, in full, a:
“Duty to co-operate in relation to planning of sustainable development”.
One would have had to be in a very faraway country to be unaware of how contentious “sustainable development” and its application have become—interestingly, led by the Daily Telegraph—over the last two or three weeks.
I find it difficult to make a judgment about the need or otherwise and the desirability or otherwise of statutory guidance without debating the substantive duty. I have always had a concern about legislation purporting to tell local authorities how to co-operate—I share that very much with my noble friend—but without discussing the whole substantive provision, I find it difficult to come to a view as to whether or not statutory guidance is desirable. It is very difficult to take this proposition along with the others and, as I say, I very much agree with the points that he has made where they arise in other parts of the Bill.
Lord McKenzie of Luton
My Lords, I follow the noble Baroness, Lady Hamwee, on this point. Your Lordships’ House should give the noble Lord, Lord Jenkin, great thanks for the diligence with which he has pursued this issue right from the start of the Bill. He has been consistent in challenging the unnecessary powers that have littered the Bill and, going through the list before us tonight, I do not have any problem with the amendments, with the possible exception of Amendment 204. As the noble Baroness says, planning has become, almost overnight, incredibly contentious. We are not now going to reach the substantive provisions until October and I think that it would be better to view them in the round and as a whole. It would be quite difficult to see the lack of guidance somewhere in the system relating to the duty to co-operate. It is a departure and a new issue in planning. It is the replacement of regional planning. It is very important that we get it right.
I accept the noble Lord’s point that when an individual authority is going to consult it does not need guidance on that. Local authorities are well experienced in doing that, but this is guidance in the context of some new planning requirements and it would be premature to do away with the prospect of government having some guidance on the generality; not just bilateral consultations and relationships between authorities, but multilaterally and where the sub-region fits. The guidance that might flow from this could be really helpful in that regard.
I do not wish to detract from the fantastic job the noble Lord has done in leading the charge on these issues. That is the only issue I take with the list that is before us.
Lord Beecham
My Lords, I warmly congratulate the noble Lord, Lord Jenkin, on his numerous amendments, particularly those he has moved this evening, with the possible exception—I agree with my noble friend Lord McKenzie—of Amendment 204. It is not that I wish to see detailed prescription about how the duty to co-operate should be exercised. My concern has been about what will happen in the event that local authorities do not co-operate. I have voiced that concern on previous occasions. There are cases where there are difficulties on land allocation for housing and that kind of issue where there needs to be some mechanism to resolve a dispute or to be available when co-operation is not forthcoming. That apart, I certainly endorse the noble Lord’s view about the highly detailed prescription around referendums. Indeed, one could go further. I notice in new Section 9MC, for example, that regulations include,
“the manner in which a petition is to be presented to a local authority”.
That is presumably on one knee, held up on a cushion or something. It is bizarre. There is far too much of all that.
I also cannot understand how anyone can believe that a change of governance in the town hall is going to excite the local electorate. It is just arguable that the mayoral referendum might, although as I indicated, turnouts would not suggest a huge demand. But if an authority chose to go from a committee system to a leader and executive system, I do not think that that would be much argued about and discussed in heated fashion in the ward that I represent, the one represented by the noble Lord, Lord Shipley, or frankly anywhere.
This whole referendum process, which we will debate in a different context later on, is going too far. It may be that the Secretary of State now fancies himself as Napoleon III—possibly not. But it is too easy a device to resort to. God help us if we have a series of referendums about this at great cost with very little participation. It is the wrong mechanism. Councils should be trusted in ordinary circumstances—I take the point about a change to the mayoral system—to come to their own conclusions about the form of governance. It is not a matter about which the electorate is in the least concerned. If people were, they could exercise their views at the ballot box in the ordinary way.
I am very much in sympathy with the noble Lord’s amendments and when we return to referendums in a different context later I hope that there will be some cross-party support. I agree with my noble friend Lord McKenzie that we need to look again at the issue of the duty to co-operate, which is in a different category.
Baroness Hanham
My Lords, again we are having a major discussion on the amount of regulation in the Bill and the amount that we can try to remove as time goes on. My noble friend Lord Jenkin has been very clear all the way through that he thinks that there is too much prescription within the legislation. Sometimes I have agreed with him as in the area committees on which we have removed all the regulation today and sometimes we believe that there is a rationale for that amount of detail in the Bill. Some of what I will say falls along those lines. Where we have been able to take parts out as in my previous amendments we have done so, but there are still areas where—I hate to disagree with my noble friend Lord Jenkin—we are not quite on the same track.
I will briefly go through the amendments that my noble friend has tabled and give my reasons why we may not be able to accept them. Amendment 155 deletes new Sections 9MD and 9ME from Schedule 2 to the Bill. These new sections replicate the safeguards which the previous Government sought to establish and which this House approved, so I hope that we will have support from noble Lords opposite. They enable the Secretary of State to ensure that local people can have their say on governance arrangements if needed—for example, in cases where referendums have not been held when required or where unreasonable arrangements or timeframes are being proposed.
It could be argued that these powers are not necessary given the provisions in new Section 9N, but we do not believe that to be the case. Orders under that new section can require only a mayoral referendum and not referendums on any other form of governance—unlike the provisions in new Sections 9MD and 9ME.
Amendments 158 and 159 would remove the ability of the Secretary of State to make regulations about the conduct of governance referendums. As I have tried to explain, I have listened carefully during the course of our proceedings to concerns about the amount of delegated powers, but I am afraid that I am not going to be able to agree with the amendments. As with many provisions in Schedule 2 to the Bill, the power in new Section 9MG to make provision about the conduct of local governance referendums replicates an existing power in the Local Government Act 2000. Regulations were last made under the 2000 Act in 2007. Our broad intention is to replicate these regulations when bringing forward new secondary legislation under this provision in the Bill. The current regulations cover all aspects of organising and conducting polls at governance referendums, including the opening hours of polling stations and the content of ballot papers, ensuring polls are held in accordance with the practices for an election.
Given the importance of the referendum’s subject matter and the fact that the result will be binding on the council concerned, I think that not only are these regulations needed but that the level of detail about the procedure to be followed is appropriate. It is vital for local people to be assured that robust, fair, open and consistent arrangements are put in place for governance referendums in order for them to feel that their vote will count.
Should noble Lords accept our Amendment 162, regulations made under new Section 9MG will be subject to affirmative resolution procedure. Accordingly, I hope that noble Lords will have the opportunity to debate and consider the content of the regulations before they are made.
Amendment 159A seeks to delete the Secretary of State’s power in new Section 9N to make an order requiring specified local authorities to hold a mayoral referendum. This power is central to delivering the coalition agreement commitment to create directly elected mayors in the 12 largest cities in England, subject to confirmatory referendums. The power in new Section 9N to provide for mayoral referendums in our largest cities does just that, and nothing more. It will allow for local people to make their choice at a referendum, and in those cities where there are votes in favour of the mayoral model, for the city to be governed by an elected mayor.
Amendment 204 would remove the requirement—the noble Baroness, Lady Hamwee, touched on this—for bodies subject to the duty to co-operate to,
“have regard to any guidance given by the Secretary of State about how the duty is to be complied with”.
The duty to co-operate signals a significant change in the way that strategic planning will happen. There are conflicting views on whether the duty to co-operate will be overly prescriptive—the point my noble friend Lord Jenkin was making—or too flexible. Indeed, we have been criticised by some in the House for the lack of prescription in our approach to strategic planning and have debated amendments to define the outputs, process and boundaries to be used by local councils. We consider that strategic planning needs to be a flexible process that allows councils to decide how best to serve their local communities, businesses and interested parties and we continue to reject prescriptive approaches. A duty to co-operate is intended to drive a culture change and new spirit of partnership working in the ways that councils and other public bodies work on strategic planning matters. It will be vital that councils and their partners rise to the challenge. Any guidance issued will be light touch rather than prescriptive, will focus on ensuring the efficient introduction of new policies and will be produced in consultation. In the light of the explanation I have given, I hope that my noble friend will be willing to withdraw the amendment.
Lord Jenkin of Roding
My Lords, when I tabled these amendments the purpose was to have a debate of exactly the kind which we have just had. I am sorry that it has come fairly late in today’s proceedings but I am immensely grateful to those in all parts of the House who have recognised that there is an issue here which had to be addressed—and it is being addressed. Noble Lords have said kind things about me but Greg Clark responded immensely positively to the approach which I made. Officials in the department and in the local authority associations have worked very hard to do this.
As regards what amendments should go into the group, I tabled a lot of the amendments and asked the Government Whips Office to put them all together so that we could have a debate. Of course, we will come back to some of these issues at a later stage. I think both the noble Lord, Lord Beecham, and my noble friend have indicated that there are issues to which we shall need to come back. As I understand our rules, when we get to Amendment 204, it is perfectly possible for anybody to move it and speak to it. The fact that it has appeared in an earlier group is not an absolute bar. However, in the light of the publication of the framework planning policy paper, we may well look at some of these issues. As the noble Lord has said, that will be in October on the last two days of our Report proceedings.
I take the point that some of these amendments may well merit considerably longer debate than we have had today. However, I think that the purpose of this debate has been served. I think that Ministers in my noble friend’s department have recognised that the Bill’s drafting has gone through the other place apparently without much being said about this. We started the argument in Committee here and it has now been accepted that this is not the appropriate way for the Government to treat local authorities these days, particularly in the light of the general power of competence. Nevertheless, there will be other opportunities to come back to some of these issues, and I hope that those opportunities will be taken. I cannot say that the Bill is going to get any shorter, because in the course of the proceedings of the last two days in Committee we have added a great deal to it, but those measures have been welcomed in all parts of the House.
I hope that we have now started the process of trying to dismantle this mindset of local authorities having to be told how to do their job. They are responsible, elected bodies, and if they are going to have a general power of competence, let them get on with it. I beg leave to withdraw the amendment.
Baroness Hanham
Baroness Hanham
(a) for “regulations made under section 18” substitute “section 9E(2)(b)(iiia), (3)(aa), (4)(a) or (5)(a)”, and(b) after “Act 2000” insert “or under regulations made under section 18 of that Act”.”
Lord McKenzie of Luton
Baroness Hanham
Lord McKenzie of Luton
Baroness Hanham
Baroness Hanham
“Timetables for changing English district councils’ electoral schemes
(1) The Local Government and Public Involvement in Health Act 2007 is amended as follows.
(2) Omit the following provisions (which provide that councils may pass resolutions to change their electoral schemes only in certain permitted periods)—
(a) section 33(4), (6) and (7) (district councils changing to whole-council elections),(b) section 38(4), (6) and (7) (non-metropolitan district councils reverting to elections by halves), and(c) section 40(4), (6) and (7) (district councils reverting to elections by thirds).(3) In section 33 (resolution for whole-council elections: requirements) after subsection (3) insert—
“(3A) The resolution must specify the year for the first ordinary elections of the council at which all councillors are to be elected.
(3B) In the case of a district council for a district in a county for which there is a county council, the year specified under subsection (3A) may not be a county-council-elections year; and here “county-council-elections year” means 2013 and every fourth year afterwards.”
(4) In section 34(2) (years in which whole-council elections to a district council are to be held if scheme under section 34 applies) for paragraphs (a) and (b) substitute—
“(a) the year specified under section 33(3A) in the resolution, and(b) every fourth year afterwards.”(5) In section 34 (scheme for whole-council elections) after subsection (4) insert—
“(4A) Ordinary elections of councillors of the council under the previous electoral scheme are to be held in accordance with that scheme in any year that—
(a) is earlier than the year specified under section 33(3A) in the resolution for whole-council elections, and(b) is a year in which, under the previous electoral scheme, ordinary elections of councillors of the council are due to be held.(4B) In subsection (4A) “the previous electoral scheme” means the scheme for the ordinary elections of councillors of the council that applied to it immediately before it passed the resolution for whole-council elections.”
(6) After section 31 insert—
“31A Minimum period between resolutions to change electoral schemes
If a council passes a resolution under section 32, 37 or 39 (“the earlier resolution”) it may not pass another resolution under any of those sections before the end of five years beginning with the day on which the earlier resolution is passed.”(7) In section 57 of the Local Democracy, Economic Development and Construction Act 2009 (requests for review of single-member electoral areas by councils subject to a scheme for whole-council elections) after subsection (4) (meaning of “subject to a scheme for whole-council elections”) insert—
“(4A) A district council is also “subject to a scheme for whole-council elections” for those purposes if—
(a) section 34 of the Local Government and Public Involvement in Health Act 2007 (scheme for whole-council elections) applies to the council, but(b) by virtue of subsection (4A) of that section (temporary continuation of previous electoral scheme), not all the members of the council are to be elected in a year in which ordinary elections of members of the council are to be held.””
Baroness Hanham
My Lords, we have already removed restrictions which applied to local authorities when they are deciding to change their governance arrangements. We have debated those this evening. Amendment 165 seeks to remove further prescription and restrictions imposed by the previous Government on local authorities in relation to changing their scheme of elections. Amendment 165 inserts a new clause into the Bill that removes in their entirety the current rules that stipulate that district councils may only resolve to change their scheme of elections during permitted periods. Permitted periods would last just over six months and occur only every four years.
We believe that local authorities should be free to make such decisions at a time that is right for them and their local communities, not during a time period dictated to them by central government. Accordingly, this amendment provides that in the future district councils in England that wish to change their scheme of elections will be able to resolve to do so at any time and will be able to specify the date on which they will hold their first whole council elections. In order to prevent local authorities from repeatedly changing their electoral schemes, and the uncertainty and disruption this may bring, Amendment 165 provides that, once a local authority has resolved to change its scheme of elections, it may not make another such resolution for a period of five years.
The current position, where district councils in two-tier areas are prevented from holding elections in the same year as the county council—that is in the fallow year—is also maintained. This is to ensure that there is clarity among local people about the role and functions of different tiers of local government in their area and to avoid voter confusion. In an area where there is no county council, no such restrictions on the date of the first whole-council election will apply. The decision will be entirely for the council concerned. Amendment 244 makes consequential amendments to the 2007 Act.
Lord McKenzie of Luton
“( ) The provisions of this section are without prejudice to the general obligation of a decision-maker to maintain an open mind in considering the issues relevant to the decision.”
Lord McKenzie of Luton
My Lords, I shall speak also to Amendment 165B. The purpose of Amendment 165A is to clarify whether the provisions of Clause 14 change the basic position that, in exercising discretion in making decisions, a councillor must not have a closed mind. This is especially relevant to, but not limited to, matters of planning. It is understood that the purpose of Clause 14 is to seek to clarify the position of councillors who, despite guidance from the Standards Board—which will now disappear—have considered themselves constrained in offering views on matters for fear of invalidating a decision or themselves being subject to challenge.
There has been a series of legal decisions which have sought to draw the line between legitimate predisposition and unlawful predetermination. The courts have accepted that councillors are likely to have, and indeed are entitled to have, a disposition in favour of a particular decision. An open mind is not an empty mind; it is ajar. Contrast that predisposition with circumstances where a person has closed their mind to all considerations other than an already held view—predetermination. The courts have recognised two types of predetermination: actual predetermination and apparent predetermination. The latter, apparent predetermination, is where a fair-minded and well informed observer, looking objectively at all circumstances, considers that there is a real risk that one or more of the decision-makers has refused even to consider a relevant argument. These matters have previously been commented on also by the Standards Board for England, including how the code might be impacted. Obviously, this all falls by the wayside subject to the outcomes of deliberations that we may have on this issue in due course.
When we debated this in Committee, we took it that Clause 14 was not intended to change the law and that decision-makers remain required to maintain an open mind in considering views relevant to a decision. Perhaps the Minister could confirm that that is the Government’s position. This is what Amendment 165A seeks to put on the face of the Bill. Assuming we are at one on this issue, what is the position on apparent predetermination? It would seem that Clause 14 changes the law because it precludes a fair-minded, well informed observer from looking objectively at all the circumstances. So can the Minister say what type of evidence would be taken into account when determining whether a person had a closed mind?
We do not oppose provisions which seek to enshrine in primary legislation the protections for councillors associated with predisposition—if the noble Lord, Lord Newton, were here, I would say that we accept the Lady Newton test in that regard—and we remain unconvinced that in doing so the Government have not opened the door to undermining the protections of probity long afforded by the concept of predetermination. Of course, this is happening when the Standards Board for England is disappearing from the scene.
In view of the uncertainty created by what is happening, Amendment 16 simply calls for the Secretary of State to review the consequences of this clause and to report to Parliament within three years. I beg to move.
Lord Pannick
My Lords, I have added my name to Amendment 165A. I share the concerns that have been expressed by the noble Lord, Lord McKenzie of Luton. This is not the ideal time of day to discuss the intricacies of local government law, but there are three points that I want to make.
First, existing case law makes it very clear, and rightly so, that in the context of local government, a predisposition to decide an issue in a particular way is lawful. There is nothing unlawful in a councillor saying to constituents that he or she agrees with or disagrees with a planning proposal, and is minded to support it, or indeed oppose it, in the planning committee, provided that the councillor adds that he cannot commit himself and that he must consider all the points that are raised before he decides how to vote.
What is unlawful is for the councillor to have or give the appearance of having a closed mind. That is predetermination of the matter, such that he or she will not listen to the arguments that are advanced in favour of or against the planning or other proposal put before the council. The Court of Appeal set out these basic principles very clearly indeed, in 2008, in the case of the Queen on the application of Lewis v Redcar and Cleveland Borough Council [2009], Volume 1 of the Weekly Law Reports, 83.
Lord Justice Rix stated at paragraph 94 to 96—and the other two judges adopted the same approach—that local councillors who are deciding a planning matter, or any other matter, are not required to be impartial in the sense required of a judge. The law as it is recognises that local councillors have political allegiances, that they have politics, and that their politics involve the adoption of policies. There is nothing wrong with that, and it is highly desirable that it remain the case, so long as there is no closing of the mind before the planning or other committee decision and the vote. The law strikes the right balance.
Secondly, although I think the law has the balance correct at the moment, I have no objection to legislation setting out this position and clarifying the matter, removing any doubt. However, it is vital that the legislation must get the balance right. My concern is that Clause 14 as currently drafted does not make it clear that although predisposition is permissible—indeed, may be desirable—predetermination is not permissible. Clause 14(2) is too broadly drafted.
Suppose the councillor says publicly, a month before a controversial planning application is considered by the planning committee, “I am going to vote against the proposal for the bail hostel. I was elected on a platform to oppose this planning development, and I am simply not interested in the arguments that may be advanced in favour of this proposal.” That would be a clear case of predetermination. Clause 14(2) would appear to make such a statement irrelevant in law. If we enact this legislation in this current form, such statements would be said to be, for the purposes of Clause 14(2)(a), something previously done by the decision-maker which,
“directly or indirectly indicated what view the decision-maker took, or would or might take, in relation to a matter”.
I hope that Clause 14 is not intended to exclude reliance in court on such a statement as evidence of impermissible predetermination. If it were intended to have that effect, it would be a substantial change in existing law and would be very much a change for the worse, because it would allow councillors to predetermine issues.
My third point, therefore, is that Clause 14 needs revision to tighten the language and avoid the ambiguity that I have indicated. There are various ways in which this could be done. One is by Amendment 165A. I hope very much that the Minister—I think that it is the noble Lord, Lord Taylor, who will be responding—will tell the House that he will take this matter away and will, with his officials, give further consideration to this important question before Third Reading.
Baroness Hamwee
My Lords, the word that I stumbled over when I first read Clause 14(2) was “just”. Not justice, which of course is important, but “just because”, which is not the sort of language that one normally sees in legislation. However, since the noble Lord has spoken, and having heard what he said, which I found extremely helpful, the word that now concerns me is “might”. Clause 14(2)(a) refers to a view that a decision-maker,
“took, or would or might take”.
How does “might” stand in the context of the distinction between predisposition and predetermination? I am far more confused than I was 10 minutes ago.
Lord Beecham
My Lords, I support the amendments tabled by my noble friend Lord McKenzie—especially the second amendment in the group. We are entering difficult territory, as outlined clearly by the noble Lord, Lord Pannick. At the very least, given the potential difficulties that might arise from a change, there ought to be a proper, evidence-based review, and three years should be sufficient for that. There are clear dangers in the way that the clause is drafted, and we cannot overlook the political background to its production. Its provenance lies in political debate, with those on one side claiming that it is improper to prevent councillors campaigning on issues and then voting on them. Of course, that is perfectly legitimate in the context of any council policy such as education, social care or whatever: but not in a situation that is quasi-judicial, which is how planning and licensing decisions should be taken.
I am afraid that the rather loose terminology deployed on political platforms colours one’s view of the potential impact of the proposal in Clause 14. It also raises the possibility of undue pressure being applied to elected members who will no longer have the defence that, “I must not indicate how I am going to vote because I am obliged to look at all sides of the case”. That might be regarded as being swept away. I am not saying that it is the intention of the clause to sweep it away, but that inference might be drawn by those seeking to solicit the support of members. One must not assume that that solicitation will always be on the part of electors. It may be on the part of those on the other side of the proposal: namely, the developers. It is invidious to place members in that position. They need the protection of the kind of approach that the noble Lord, Lord Pannick, has enunciated.
I hope that the Minister will look again at this, particularly at Amendment 165A, and whether that can be deployed to mitigate the impact of Clause 14. In any event, however, I hope he would accept, or just consider accepting, Amendment 165B, which would allow the situation to be reviewed in this rather delicate area on the basis of evidence rather than surmise. We are looking, at this late hour, for some commitment to think again and talk again about this in order to avoid potential future difficulties for elected members and officers of the council as well. It would also provide clarity for public applicants and objectors alike.
Lord Taylor of Holbeach
Nobody will deny that this is a complex area. Previous position and predetermination can meld into a situation where drafting legislation can be difficult. I want to reassure noble Lords on what Clause 14 is about and what it is not about. The provision in the Bill does not have any effect on the legal effects of a local authority member being predetermined. The legal position is, and will remain, that a local authority member making a decision should have an open mind. Whatever he or she may have said about the way they were going to vote or whatever campaigns there were, we are in practical politics and we know that people will campaign on issues. The clear point of focus of any legislation and the law, currently and as a result of Clause 14, is that the decision should be made with an open mind.
I recognise that the noble Lord, Lord Pannick, is one of the most eminent lawyers in the House, and I say that knowing there are many eminent lawyers in this House. However, I hope he will agree—I think he does, along with the noble Lord, Lord McKenzie—that the courts have been very sensible in recognising that politicians hold views and there is nothing wrong with them holding views. The way we drafted these positions in Clause 14 is to make it clear to those less well versed in the law—and that is certainly true of the majority of us—that politicians are free to talk to the public about issues and free to campaign on important issues. It will ensure that, at the end of the day, prior indications of an opinion will not be treated as evidence of predetermination.
Perhaps I can reassure the noble Lord, Lord McKenzie, that the only evidence that can be presented to show that a person does not have an open mind is that which exists at the point of the decision-making process. Therefore, prior comments, commitments and pledges do not matter as long as the local authority member clearly listens to the evidence and makes his decision. It may accord with his prejudice or his predisposition, but any evidence that he has a closed mind can only be made at the point when he makes that decision and not at any point prior to that.
Lord Pannick
I am grateful to the Minister for giving way. Do I understand him to be saying that any prior statement is irrelevant to the question of whether the councillor had an open mind at the time of decision-making? If that is what the Minister is saying, the example that I gave in my contribution to this debate would be irrelevant even though, surely, it would be highly material to the question of whether at the time of the decision the councillor had an open mind.
Lord Taylor of Holbeach
The test is that the decision-making process is key and the councillor demonstrates the ability to listen to the argument and to vote accordingly at the time of the decision-making. That is the current position in law. There is no suggestion that because somebody has campaigned on an issue they should not be free. Indeed, I think the House would acknowledge that people who have campaigned on issues should be free, as long as they demonstrate at the point at which the decision is being made that they have been prepared to consider opposing arguments. The fact that they have voted in accordance with their previous position does not necessarily mean that they predetermined the decision. That is precisely what this clause is designed to make clear.
I hope noble Lords will understand that this is a genuine attempt to provide clarification on a difficult area. To the extent that Amendment 165B has been tabled to suggest that this should be subject to review, it is unnecessary because, as we stated in our published impact assessment for this provision, there will be a post-implementation review to ascertain its impact. It will provide all the information that noble Lords have been seeking through presenting Amendment 165B. I hope the noble Lord will withdraw the amendment.
Lord McKenzie of Luton
My Lords, I thank the Minister for his reply and the noble Lord, Lord Pannick, and my noble friend Lord Beecham for their support on this amendment. I am sorry if collectively—it is probably my fault—we have confused the noble Baroness, Lady Hamwee.
I do not think the Minister’s response has moved us forward on this issue. If anything, I think it has moved us backwards. We accept that these are complex issues and that drafting legislation is difficult. The noble Lord, Lord Pannick, said that he thought that the courts have hitherto got the balance about right. If the Minister thinks through the logic of what he has just said, if you can judge whether somebody had a closed mind only at the point of taking a decision, and if you have to leave aside and close your mind to all the previous evidence, even though any reasonable person might say that in particular circumstances it was abundantly clear that an individual had closed his mind, could that not leave the process open to massive abuse, because all somebody who wishes to thwart or support a decision needs to do is to behave sensibly and appropriately on the day at the point of the decision-making, even though he might have made his position absolutely clear before that? I am not a lawyer, although the noble Lord, Lord Pannick, certainly is, but it seems to me that the position he put in his example—that Clause 14(2) means that you have to exclude all that evidence when it comes to court, if that is where it arrives, and the Minister said that you do—must constitute a change in the law as it is at the moment. I do not think that the Government are in the right place. We are not trying to be difficult. This is not a party political issue, and I understand the Minister trying to get it right for councillors so that they are free of the fear that they may have been subject to to date, but I simply do not think that the Government are right. We are obviously not going to press Amendment 165A tonight, but I urge that we have the opportunity to have some discussion with officials between now and Third Reading—and I would welcome the input of other noble Lords, particularly the noble Lord, Lord Pannick—with the right to bring it back if necessary. There is a risk that we are changing the law.
Lord Taylor of Holbeach
Of course we are always happy to discuss matters further, but I wanted to make the Government’s position quite clear. The clarification in Clause 14 is designed to make clear that there is a point at which predetermination can be adjudged, and that is the point at which a decision is made. To present any other points as being the point at which predetermination exists obviously becomes extremely complicated because you get involved with statements that have been made before the decision was presented before the member concerned.
Lord McKenzie of Luton
My Lords, I understand exactly that it is at the point at which the decision is made that people’s minds ultimately become closed, but that is where some judgment must be made. The issue is whether in making that judgment you ignore everything that has gone before. That is the point that we are struggling to understand.
Baroness Hamwee
My Lords, I suggest to the noble Lord that the words which had initially confused me—making the decision “just because” of these factors—in fact answer his point. I think that those words “just because” mean that they are a consideration but they are not the only consideration. They are part of all the criteria that should be assessed when judging whether or not a mind has been closed. I can see that we are not going to take it further today. I just wanted to put that into the arena as well and assure the noble Lord that it was not he who confused me.
Lord McKenzie of Luton
I am grateful to the noble Baroness but I do not think it helps us. If somebody who has done something said something, just because they have said that, if the provision requires you to not focus on that, not to take that into account in making a decision, you can count that decision only once and this excludes it. Perhaps we ought to see whether we can make some progress on this outside of these deliberations, but I really do not believe that the Government are in the right place on this.
Lord Pannick
Does the noble Lord accept that the Minister is undoubtedly right that the question of whether or not the councillor has a closed mind must be assessed as at the date when the council takes the decision? My concern—I ask whether it is his concern—is that it appears from the Minister’s observations that he is suggesting that anything that the councillor says at an earlier date, however extreme it may be, is irrelevant to the question of whether the councillor had a closed mind as at the date of the council decision. That seems to be the issue.
Lord McKenzie of Luton
Yes, I am grateful to the noble Lord. That is exactly my concern and I honestly do not think we have had clarification on that. Perhaps we can take this forward by other means. With the leave of the House, I beg leave to withdraw the amendment.