Localism Bill

Baroness Gardner of Parkes Excerpts

Monday 31st October 2011 Lords Chamber

[Lord Snape]

My Lords, I am reluctant to intervene in the debate but do so having listened to the arguments for the amendment put forward so ably by my noble friend Lord Hart. Like my noble friend Lord Sewel the noble Baroness, Lady Hamwee, I had the honour—I will not do irony, either—to serve on a local authority before being elected to the other place. Not being a lawyer, I would like the Minister to tell me what predetermination actually means. Like my noble friend Lord Sewel, I confess that the Labour group on the local authority of which I was a member, eventually becoming leader, met before council meetings and decided the group view on various issues. Is that predetermination, or not? If it is, is it caught by the provisions of the Bill?

I take the view that both Houses of Parliament interfere far too much in local authority matters. I well understand the view that where planning matters are concerned the letter of the law should be laid down and followed. The previous Labour Government created a standards authority for local government, which quickly became bogged down. If you traded insults in a council chamber, a complaint was made to that body and all sorts of trivia were discussed at that level. I do not wish to tie the hands of local authority members more than successive governments have done over the years, but I am concerned about both the clause and my noble friend’s amendment.

My noble friend is not just a lawyer—he advises lawyers, as well. He is doubly damned in my eyes, I have to tell him. But he did not define predetermination in speaking to the amendment. Like my noble friend Lord Sewel, I think that the Minister really ought to do so. I end as I began: tying the hands of local authority members is something that both Houses of Parliament have done over the years, in my view quite unnecessarily.

[Baroness Gardner of Parkes]

The noble Lord, Lord Pannick, always moves his amendments superbly, and I am fascinated by them, although I heard it elsewhere than in the Chamber this evening, and I apologise for that. But I think that he does not look at this matter from the point of view of people being elected. Ever so many people are elected simply because they have always had some pet subject that was very much of local interest, and that is what got them elected. Any of those people, under this amendment, will find themselves being accused or blamed for the fact that they fought in that way. I am thinking of the Member of the House of Commons, who was elected on the single issue about the hospital in Worcestershire, and elected not once but twice on that issue. Would we have all condemned him if he had shown a particular interest in the hospital in Worcestershire? It is unrealistic to believe that people could be completely opposed to something that they had fought for for years.

The other side of that is that anyone sitting on any planning committee should do so with an open mind. If they do not have one, they have no right to sit on that committee and they should declare it as such. That should deal with the matter, rather than this amendment.

[Lord Greaves]

I declare an interest, since it is Third Reading, or redeclare an interest as a member of Pendle Borough Council, which has a local planning authority on whose planning committee I sit.

I smiled when the noble Lord, Lord Sewel, got into a little bit of trouble for trying to use his native Bradfordian flat irony in your Lordships' House, which is something that I also get into trouble about for the same reasons. I sometimes think that we should run a campaign so that we have a means of telling Hansard to insert a smiley at appropriate places, but I suspect that that is a campaign that I will not win in my lifetime.

I regret the fact that I did not get involved more in this issue in Clause 25, as it now is, earlier in the passage of the Bill. It is not completely satisfactory as it stands, but I think that the amendment from the noble Lord, Lord Pannick, would make things worse. I shall explain why in a minute. I do so not from his position as an eminent lawyer who knows about things like predetermination, predisposition and perhaps predestination as well, I do not know—or perhaps not. I come from the point of view of how these things are now looked at in local government. What people have not really been talking about is that within local government there is a general belief at the moment that there are two types of issue. There are those that people say are in some way quasi-judicial, or involve things like appointments and disciplinary hearings, as well as planning and licensing, whereby the approach of councillors has to be less predisposed than on other matters. When I got back on the council eight years ago, I spent the whole election campaign speaking about the number of empty, boarded-up houses in my ward. I thought that the position had deteriorated appallingly in the six years I had not been a councillor. The electors actually agreed with me, for once. I have spent a lot of the eight years since then working hard on the council to do something about that problem. I am totally biased on this matter; I think that it is an appalling problem, and I campaign on the council and outside the council to try to solve it and make no bones whatever about that. But if a planning application came up in relation to one of those houses, I would step back and regard it and treat it as a planning application. That is quite well known within local government, although perhaps not as well known in some councils as it should be—but it is the case. Therefore, there is a problem here in that both the Bill and the amendment are broad-brush and do not make that distinction between different types of issue, which are certainly well understood within local government.

I have problems with the words predisposition and predetermination. It may be that in the courts of this land they are well understood, but I do not believe that most councillors would understand those words if you put them to them. The word that is more used in local authority government in relation to that kind of problem is fettering. Councillors are told that they must not fetter their discretion when it comes to things like licensing and planning applications. That is the word that is used—but fettering includes both predisposition and predetermination. The attempt to pull back from the straitjacket that councillors are in at the moment is well done.

I do not think that the position is well understood, as the noble Lord, Lord Pannick, said on Report and said again today, but one problem is that different councils apply different rules. In some cases, when planning applications are submitted—that is probably what we are talking about most here—councillors are banned absolutely from speaking to anybody, including residents, applicants, objectors or the local press. Some councils are absolutely draconian in doing this: one is not allowed to talk to anybody unless one is in the presence of a planning officer. That is totally unrealistic on many councils that do not have lots of spare planning officers to wander around with councillors who are talking to people on their patch.

All this did not originally come from the courts. I particularly noticed it because I was not a councillor for six years and during that time, between 14 and eight years ago, the whole regime changed. It came from decisions of the Local Government Ombudsman, where there were complaints that councillors had made up their mind on planning applications before the applications were dealt with. It also came from references to the standards authorities, particularly the Standards Board for England. That is where this whole regime within local government has come from.

The noble Baroness, Lady Gardner of Parkes, made the point that councillors are different because they are elected. Therefore, the regime that has to apply to councillors as opposed to other public officials and people serving on tribunals and so on is different because they are elected. Very often they have fought election campaigns and taken part in local campaigning. We have examples from around the country. A market town provides one classic example. A particular political party had campaigned vigorously against the redevelopment of a town centre that involved a big supermarket as the core of that redevelopment. All its councillors—the party had swept the board—were banned from taking part in the part in the decisions once they were elected because it was said they had fettered their discretion because they were part of a party which had won elections on that basis. Clearly there is a huge conflict here between local democracy and fair decision-making. Electors cannot be expected to understand that.

Regarding the amendment moved by the noble Lord, Lord Pannick, I would say that there is a lot of talk of bail hostels. As long as a bail hostel is small and is confined to an existing house, I do not think it needs planning permission. It is not a good example in that sense, but I understand the point made by the noble Lord. We have all had to deal with a very difficult application where a lot of residents have been strongly opposed to it, yet it has actually been right. That is when councillors have to gird their loins and do what is right. They do not always do it, but that is democracy.

The amendment of the noble Lord is an admirable attempt to clarify the position. Subsection (2)(c) of the amendment states that,

“an earlier statement or conduct by the decision-maker that amounts to predetermination shall be taken into account and given such weight as is appropriate in the circumstances of the case”,

I do not believe that even local authority lawyers will understand that sufficiently to give clear advice to their councillors, and councillors certainly will not understand it because they will not understand what amounts to predetermination. The words,

“given such weight as is appropriate in the circumstances of the case”,

are a recipe for a lot of lawyers to earn a lot of money when matters come to court to determine what they mean in the circumstances of a particular case. I do not believe it is a useful check on what one does in a particular circumstance that happens locally. Therefore, I do not think the amendment of the noble Lord provides clarity. In a practical sense, at a local level, it will make matters a lot worse, with no clarity.

The problem is that council lawyers are well known for being top of the league of people who err on the side of caution on pretty well everything. If the House were to pass this, it would result in no change to the present position, in which it is the councillors who are totally fettered from doing the job that people elect them to do.

The noble Lord, Lord Hart of Chilton, said that if councillors are given the advice that they cannot say or do anything or take part in any discussions before it goes to a planning committee, it is bad advice. All I can say is that if it is bad advice, it is universal bad advice. Given the choice of two not wholly satisfactory wordings, I very much prefer that of the Government.