Localism Bill

Debate between Lord McKenzie of Luton and Baroness Hamwee

Monday 31st October 2011 Lords Chamber

[Lord McKenzie of Luton]

My Lords, we have added our names to this amendment, for reasons which I will try to explain. As I understand the Government's position, this provision is meant not to change the current position—they may confirm or deny this—but to clarify it, as the noble Lord, Lord Greaves, said. The problem in seeking to clarify it, for some of us at least, is that they have unbalanced it and made it difficult. The noble Baroness, Lady Hamwee, advanced the point that, as drafted, the “just because” was the get-out but I contend that if you have to ignore anything that the decision-maker has previously done with a view to a matter, directly or indirectly, there is not much else that that decision-maker could have done which could then be the subject of a challenge on predetermination.

[Baroness Hamwee]

My Lords, I was not intending to describe it as a get-out but to say that “just because” could also be read as “only because”. Although those are not words that one would normally find in legislation, they are very helpful and descriptive in this context.

[Lord McKenzie of Luton]

I take that point but, even if it is “only because”, what else might a decision-maker do that you have to take account of if you can ignore all of the things that are described in this provision? That seems to be the fundamental problem.

My noble friend Lord Snape asked: what is predetermination? As I understand it, predetermination is having a closed mind at the point when you make a decision. Is that not important, because if people are coming to local councils seeking decisions which they expect to be rationally made—whether on planning, licensing or anything else—are they not entitled to have a case that is properly made and not fettered by somebody ignoring all of that process at the point when the decision is made? That seems to be the key difference between predetermination and predisposition.

The noble Baroness, Lady Gardner of Parkes, said that people will always have their pet subjects, and there is absolutely nothing wrong with that. Predisposition means having a view that, other things being equal, this is what you support and this is what you do not, and it does not preclude you from having, for example, manifesto commitments. That is reflective of the current position. The problem with the clause, for some of us at least, is that it unbalances that decision. It may give clearer protections or guidance to councillors in respect of what they can and cannot do but it does not address the other side of that equation: the circumstances where somebody has a closed mind and would seek to exercise judgment on something when they should not. That seems very important to me.

Things are not helped by the demise of the Standards Board for England, which set out guidance on all of this, but I understand that there is also legal precedent and case law around all of this. My noble friend Lord Sewel raised the point about collective decisions. There is nothing wrong with a party group sitting around and having discussion on an issue. The key is that when you come to the point of making that decision—whether it is in the council chamber, the committee chamber or elsewhere—the mind is at least ajar. I think that was the terminology that was used.

The noble Baroness, Lady Eaton, said that councillors have long walked this difficult line, and she is absolutely right. I agree and, in our view, the line does not need to be changed. Yet the terms of this clause are potentially changing it and that is the problem we are seeking to address by this provision. Our position is as follows: we support the proposition that those who have a closed mind on an issue should not participate in decision-making and could invalidate it if they did. We understand that this is also the Government's position, from debates on previous stages of the Bill where we have had amendments around this. It may be particularly relevant to planning and to other decisions as well.

We differentiate predetermination from predisposition and understand that the Government also do that. Having clarity on the scope and protections that this gives to councillors is to be encouraged but issues of a closed mind or otherwise are properly to be assessed when formal decisions are to be taken. We understand that this is also the Government’s position. The problem is that, in framing the scope and protections for local councillors, there must not be opportunities for those with closed minds to have their actions and utterances ignored in evaluating whether they had already predetermined the matter when making decisions. These are matters of probity.

If it is right that we agree on those propositions about the difference between predisposition and predetermination—determined at the point when the decision is made—we should be focused on how we achieve the legal construct that deals with that. That is the real matter before us and the matter in this amendment. In this regard, we consider that the amendment moved by the noble Lord, Lord Pannick, which is also in the name of my noble friend Lord Hart, achieves those objectives. However, we are very clear that the clause as it stands makes things worse and muddies the waters on principles and issues that I think we are not apart on.

Localism Bill

Debate between Lord McKenzie of Luton and Baroness Hamwee

Monday 12th September 2011 Lords Chamber

[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.

--- Later in debate ---

[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.

Police Reform and Social Responsibility Bill

Debate between Lord McKenzie of Luton and Baroness Hamwee

Thursday 9th June 2011 Lords Chamber

[Baroness Hamwee]

My Lords, I am relieved at the way this debate has developed because, when I first saw this amendment, knowing of the noble Lord’s seniority in his party I wondered whether this was some sort of “done deal”. Clearly, that is not the case. It sounds terribly patronising to say this, but the balanced attitude which noble Lords have displayed in their speeches is extremely welcome. The noble Lord, Lord Condon, talked about not exempting the police force en bloc, but where is the demarcation line? I think that all noble Lords have recognised that there needs to be one. Like other noble Lords, I think that health and safety, with a capital H and a capital S, is important and has had an unjustifiably bad press—not that I tend to read that press but one cannot avoid hearing about it. The law in regard to health and safety, and certainly the way in which it is applied, may have gone too far one way, but the pendulum should not swing too far in the other direction.

[Lord McKenzie of Luton]

My Lords, I thank the noble Lord, Lord Blencathra, for introducing this fascinating debate. However, I should make clear that we on this side join the Police Federation in opposing the amendment, which would remove from police officers the statutory protection afforded by the Health and Safety at Work etc. Act 1974. We believe that this would be a seriously retrograde step.

I had made a note to remind the noble Lord that a Conservative Government had brought the police service within the health and safety legislation through the 1997 Act but clearly I did not need to do so. Therefore, I congratulate him on mentioning that. Notwithstanding the debate that we have had, I believe that it was the right thing to do. I am not familiar with the detail of the prosecutions that took place, which were clearly traumatic and difficult for two very senior members of the police force. The message I take from that is that the prosecution did not succeed and that common sense prevailed. That is the real message. I am grateful that the noble Lord, Lord Condon, said that and recognised that events have moved on.

Perhaps I may pick up the issue around myths, because health and safety is beset by myths, half-truths, and sometimes downright fabrications. The police have been on the receiving end of this too often. As my noble friend Lord Hunt said, this is sometimes because people want to use health and safety as an excuse for not doing something, sometimes by overzealous application of health and safety requirements and sometimes due to ignorance of the law. The HSE, together with partners in local authorities and the wider health and safety community, has gone to great lengths to push back against these myths and to explain what is required. I shall come back specifically on that in relation to a case that the noble Lord, Lord Dear, mentioned.

My noble friends Lord Harris and Lord Hunt got it absolutely right. My noble friend Lord Harris said that it was important to inculcate health and safety into the mainstream of an organisation and to address it proportionately. Analysis shows that organisations, whichever one we are talking about, with good health and safety management invariably have other good management systems in place. My noble friend Lord Hunt referred to the positive impact of the 1974 legislation. That is right. It has stood the test of time. It is non-prescriptive and is meant to be operated proportionately. My noble friend said that sometimes it is the role of overzealous consultants to encourage people down paths that are not required under the legislation. One of the things on which I would congratulate the Government is the introduction of a register for consultants. It is work that we could claim to have started in our term of office and it will help to address this issue.

The noble Baroness, Lady Hamwee, referred to the bad press that the Health and Safety Executive and others get. Let me refer to the report of the noble Lord, Lord Young of Graffham, mentioned by the noble Lord, Lord Blencathra. In Appendix D, entitled “Behind the myth: the truth behind health and safety hysteria in the media”, he picks up one of the issues referred to by the noble Lord, Lord Dear. The appendix refers first to the “Story” and states:

“In May 2007, newspapers published a story concerning the death of a 10-year-old boy who drowned while fishing for tadpoles with his siblings in an outdoor pond. Questions were asked about the role of the emergency services and accusations were made that the policemen involved stood by and watched a boy drown because health and safety rules forbade them from entering the water to save him”.

The report goes on to record the “Reality”. It states:

“Fishermen noticed that two children had fallen into the pond and they tried to bring the children in with their fishing tackle. They managed to drag a girl out of the pond but were unable to reach her brother. One of the fishermen tried to call 999 but was unable to get through so he called his wife. She rang the police and reported the incident. There was some confusion over the location of the incident and this resulted in the police attending the incorrect location. At the same time Police Community Support Officers were undertaking a normal patrol when they came across the incident. They alerted police officers to the correct location. The boy’s step-father and friend arrived at the pond just before the police officers. They immediately dived into the water and brought the child to the surface. The police officers then arrived and one of them dived into the water and helped to bring the boy onto the bank. Unfortunately by this point he had been underwater for 20 minutes”.

That is the gap between the myth and the reality.

I am bound to say that there are responsibilities on us all not to recycle these myths. The noble Lord, Lord Young of Graffham, when addressing the IOSH conference a little while before he was formally appointed, cited an incident some 18 months before when two police community support officers had stood by and watched a 10 year-old boy, who had jumped into a pond to rescue his sister, drown. The noble Lord said that they explained afterwards that they had not had their health and safety course on rescuing people. He also said that if that was thought to be completely exceptional, there was a case only a few weeks before where a man allegedly drove his car containing his two children into the river. He and the boy escaped but his sister was trapped screaming in the car. The two policemen stood by for 92 minutes while a diving team was brought from the other end of the county and said later that they were not allowed to rescue the girl themselves on health and safety grounds, and she died the following day. We all need to be mindful not to recirculate these myths.