Welfare Reform Bill

Debate between Lord McKenzie of Luton and Lord Newton of Braintree

Tuesday 14th February 2012 Lords Chamber

[Lord Newton of Braintree]

My Lords, I had not intended to intervene either. I will do so very briefly because I have made my points at earlier stages of the Bill. My principal point, as I said to the noble Baroness, Lady Meacher, at the end of last week, was that I did not expect to be able to vote for her amendment because, while I thought that the cause was good, writing this kind of thing into primary legislation was not. That is reinforced by the points that have just been made. I see the noble Lord, Lord Walton, nodding; I am not sure that the noble Baroness, Lady Hollis, will be nodding. The very point that the degree of disability does not directly relate to the costs incurred is actually a point of not trying to write all this stuff in concrete into primary legislation, together with the variability to which the noble Lord, Lord Walton, has referred. So I very much hope that the noble Baroness will not press her amendment to a Division, even though I strongly support the general aim that she has in mind. I want to pay my own tribute to the part that she has played in focusing on this issue.

[Lord McKenzie of Luton]

My Lords, like other noble Lords, I think we should be grateful to the noble Baroness, Lady Meacher, for keeping us focused on the issue of disabled children, and to all noble Lords who have spoken in this short debate with a great deal of expertise and knowledge on the subject. They reminded us that even in this rich country there are people and families who still live in poverty and are challenged by poverty. The deliberations that we bring to bear through legislation may seem somewhat detached from that, but that legislation has a real effect on real people’s lives.

Like my noble friend Lord Peston and the noble Baroness, Lady Howe, I was a bit confused as to how this amendment became caught up in the issue of financial privilege because I thought that the Minister was on record as saying that this was not an issue of money. Indeed, the noble Baroness, Lady Meacher, confirmed that. I did not intervene in the earlier exchanges on this issue but I am somewhat concerned about aggregate figures of costs flying around, whether we agree with them or not, and tagging on to them a provision that has no cost implication at all. If that is permitted under these arrangements, it is a bit of a slippery slope.

However, we should be grateful to the Minister for his engagement running right across the Bill, particularly on this issue, and for his promise of a review on definitions and access to the various benefits. I hope that he will take account of the point made by my noble friend Lady Hollis and others that the issue of costs does not correlate exactly with severity of disability. If I have to take issue with the Minister, I wish that he had not said that his commitment to undertake this programme was conditional on the noble Baroness withdrawing her amendment. Frankly, if it is right to do it, it is right to do it.

Perhaps I may pursue one point with the noble Lord. He previously stated that families would obtain the benefit of transitional protection so that the cash amount of support under universal credit would not reduce. That would not of course protect the position in real terms but perhaps we can at last understand a little more—on the record, I hope—about how transitional protection will work. Is it to be applied separately to the differing components of universal credit or will it be looked at in aggregate? Could an increase in the housing amount, for example, mean an effective reduction in the protected disability addition? Can we also get some clarity around changes of circumstances and what types of situation would cause the transitional protection to be removed? What about, for example, a move in accommodation that might have been caused by the underoccupation provisions that we debated previously and will debate again shortly? Could that represent a change of circumstances that could cut off that vital transitional protection?

I do not wish to go over all of our powerful debate on this issue. I acknowledge the commitments that the Minister has made but repeat that we should be thankful to the noble Baroness, Lady Meacher, for keeping us focused on this important issue.

Welfare Reform Bill

Debate between Lord McKenzie of Luton and Lord Newton of Braintree

Wednesday 25th January 2012 Lords Chamber

[Lord Newton of Braintree]

My Lords, I just want one penn’orth. I completely support these amendments, but they give me the opportunity which I missed earlier in these proceedings to record on the Floor of the House that the single silliest thing in this whole affair is the determination of the Department for Communities and Local Government to have separate council tax benefit systems in every corner of the country. That is a battle to be fought again on another day. I had devised an amendment that could have brought it up today, but I decided that discretion was the better part of valour at this stage. However, there is a local government finance Bill coming down the path. My noble friend—and, above all, his noble friends in the DCLG—should know that some of us are going to go on worrying away at this total absurdity, which I know is not supported in the DWP itself. These amendments may help to mitigate the effects but they will not completely eliminate them, and I shall go on trying to eliminate them.

[Lord McKenzie of Luton]

My Lords, I concur completely with what the noble Lord, Lord Newton, has just said. We obviously will not oppose these amendments, but that should not be taken to mean that we are supportive of this proposition. When I say that I concur completely, I am not saying I am sure that this is the single silliest thing in this Bill—but it is certainly in the top 10. The briefing note that we had makes it clear that the support for council tax in future is likely to be based on a system of means-tested discounts. How on earth that can sit sensibly with universal credit and single tapers is a mystery to me. Maybe we will be enlightened when we get that legislation, which I think will come our way quite shortly. We could have a long debate around this today, as it is a real flaw in the universal credit, but I accept the need for this amendment, as it makes the data-sharing coherent.

Welfare Reform Bill

Debate between Lord McKenzie of Luton and Lord Newton of Braintree

Monday 12th December 2011 Lords Chamber

[Lord McKenzie of Luton]

My Lords, we support this amendment, and consider, as my noble friend Baroness Hollis does, that council tax benefit should be dealt with as part of the universal credit.

My noble friend delivered a devastating critique of the proposal in Committee and has done so again today. Indeed, I thought I saw the Minister nod in approval at one stage. If he did not nod in approval at my noble friend, perhaps he did for the contribution of the noble Lord, Lord Newton.

[Lord Newton of Braintree]

He welcomed it.

[Lord McKenzie of Luton]

Very good. Of course, this issue is having to be considered, as has been said, against the backdrop of the overall funding for council tax benefit being reduced by 10 per cent but with commitments to protect awards of council tax support for pensioners and possibly for other vulnerable groups. This means, as has been said, that support for working age claimants is to be squeezed dramatically.

The consultation on this proposition, the Localism Bill, closed two months ago, and perhaps we can know when the Government’s response to this will be forthcoming. Quite apart from the administrative consequences of the proposed localism of the benefit, there is, as my noble friend pointed out, a fundamental difference compared with what happens currently. Under present arrangements, council tax benefit is demand led. Whatever the calculation shows is due is made available to the claimant, by offset against the council tax bill, with full reimbursement from the DWP. It is, as my noble friend explained, the AME—annually managed expenditure—bit of government spending.

This will in effect change under a localised system. If claims under a localised system exceed the budgetary amount locally, authorities will have much more limited resources from which to meet the increased demand. They might dip into reserves, if they have any, or they might make the system less generous in a subsequent period. They might switch expenditure from other local authority spend, but given the savage cuts to local authority budgets that have been made recently, there does not seem to be much room for manoeuvre to do that.

It is suggested that local authorities might approach a localised system on some consortium basis, and therefore that other local authorities will help out. I suggest that the prospects for this are not strong. One consequence of these constraints will be that local authorities will inevitably budget on a prudent basis, building in contingencies that will further diminish the resources available to claimants of a localised system. That indeed is what the risk assessment will dictate.

The main reason advanced by the Minister, Grant Shapps MP, in evidence to the CLG Committee for the localisation of council tax benefit was that for local authorities,

“the big advantage is that they will have a stake for the first time in what people who live in those homes are doing; in other words, an incentive to help get the person back into work”.

This is a rather strange view: that it takes possible savings from a benefit pot for local authorities to have an incentive to help people back to work. It is a view that ignores, or is ignorant of, the proactive and imaginative work that many local authorities do to help local residents into work. However, in any event, the driver for having clear incentives to support work is supposed to be the universal credit itself. If there is any incentive in the system, there is a risk that local take-up campaigns will diminish, as any wider take-up will come from the resources of the council.

We have yet to know how much central direction there will be for a localised system. If the Government run true to form, there will be quite a lot. This was certainly the outcome of the Localism Bill, which espoused localism and gave additional powers to local authorities but came with lots of strings attached, as the noble Lord, Lord Newton, will recall, despite some of those strings being removed in your Lordships’ House. There will clearly have to be central direction if the position of pensioners is to be protected, and some form of direction to deal with tapers and work incentives.

We understand, to follow the line of questioning by the noble Lord, Lord German, that the Minister will say that he cannot support a change to the universal credit to include a council tax benefit now. However, there is nothing to stop it being included in the future, as the Bill now stands. If this is the Government’s position, will the Minister confirm that he considers that regulations under Clause 11 will be the route to effect this?

The noble Lord, Lord German, also raised some fascinating questions about how this works for Wales and Scotland. Can the Minister say whether the proposition that he will advance tonight will be, “Don’t worry about it now—you can get it all back in due course.”? What changes would have to be made to the systems that are currently being built to put this into effect? Including council tax support as part of universal credit is of course not without its challenges, particularly the payment issue, so perhaps we can hear whether there has been any thinking around that matter.

However, we support my noble friend’s strong contention that the sensible, practical and principled way to deal with council tax benefit is to include it as part of universal credit. We believe that the Minister, a very logical person, must have come to the same conclusion. If a strong vote today will help his cause, we are more than prepared to play our part.

Welfare Reform Bill

Debate between Lord McKenzie of Luton and Lord Newton of Braintree

Monday 12th December 2011 Lords Chamber

[Lord Newton of Braintree]

My Lords, I do not know whether the Minister wants to give guidance on that point or to take it up later. I want to intervene briefly, and slightly apologetically, because, like the noble Lord, Lord Kirkwood, I was a bit late on the scene, but I am conscious that I played some part on this subject in Committee, so I think that it would be wrong to keep my head completely down in this debate.

I differ from my noble friend Lord Kirkwood in one respect; I think that the objective of what the Secretary of State describes as culture change in this field is not unworthy. Apart from that, I agree with pretty well everything that the noble Lord said. However, we need to remember something I learnt in various roles, including in my early years as a junior Social Security Minister when I became, it was be fair to say, friends, more or less, with the noble Baroness, Lady Lister. As I said in another context recently, culture change is not an event; it is a process. It takes time and not everyone will get through it. In an organisation, if you want a culture change and people cannot accommodate it, sooner or later they and the organisation have to part company, and they do something else.

This is the social security system, and people cannot part company with it. There is nowhere else for them to go, and we cannot abandon them. There is therefore real force in some of the concerns that are being expressed. Some people, such as those I tried to help in my former constituency, simply will not be able to manage. What are we going to do about them? As I say, we cannot abandon them. I might say that this will feed into something that is coming up later: whether rent should be paid directly to landlords. In some cases, where they cannot manage they will put the food for the baby first and the rent will not be paid. Then there will be another little problem, and someone will have to sort them out. Let us not pretend that this is easy, even if the objective is worth while.

I am not sure—and here I look with some trepidation at the noble Baroness, Lady Lister—that inserting into the Bill an insistence on ossifying fortnightly payments is right. The Bill already provides for some flexibility. Some benefits—including disability living allowance, I think I am right in saying—are paid monthly. This is not a simple picture. We do, however, need that flexibility where it is clear that failing to pay at more frequent intervals will multiply problems, difficulties and further costs in other parts of the system. The Bill allows for that, and I welcome that, but we need clear indication from the Minister this afternoon that this flexibility will be used.

[Lord McKenzie of Luton]

My Lords, first, I thank the government French Bench for facilitating the debate on these three amendments, after the hiccup we had at the start, and I thank the noble Lord, Lord Brooke, for his helpful advice. I say to the noble Lord, Lord German, in respect of his comments on Amendment 3, that I take the point. If he wants, perhaps, a more iterative process, I am happy to accept an amendment to our amendment. I am bound to say that we rather learnt about calling for reviews from the Liberal Democrats and Conservatives when we were in government—it has the merit of generally not having much of a price tag attached to it.

We start our deliberations on Report by considering the important aspect of how universal credit would work—that is, how payment would be affected, especially the frequency of the payment. However, let me first put in context our approach to the general issue. As we have clearly stated on the record, we support the concept and broad approach of universal credit, a benefit system that provides in-and-out-of-work support, as a clear system of the income disregards and common tapers has significant potential, not least the prospect of clearer incentives for work.

As has been apparent from our Committee sessions, and the matters that we will discuss on Report, the manner in which it is proposed to be introduced is, we believe, flawed. Some of the shortcomings are resource issues—work incentives for second earners—but some are potential failings in the base architecture: the exclusion of council tax benefit; the treatment of self-employed people; and, also, the payment arrangements. I agree with the noble Lord, Lord Kirkwood, that this is not a peripheral operation or issue—this is central to how the system should work.

We will come on to discuss issues about which member of the couple should receive payment and how landlords are to be treated—as the noble Lord, Lord Newton, has indicated. The amendments we are considering now address the vital matter of frequency of payment. Amendment 3, tabled in my name and that of my noble friend Lady Hayter, calls for,

“a review into the impact of payment arrangements on claimants, to conclude one year after the coming into force of this Act”.

I will acknowledge that it might be more appropriately triggered by the universal credit provisions coming into force. We see this review focusing on the impact on claimants by looking at it from the claimant’s perspective. In Grand Committee on 10 October this year, at col. GC 440, the Minister referred to the research being undertaken, particularly around the frequency of payment. An obligation to undertake an early review of how things are working in practice and a report to Parliament would be entirely consistent with the Government’s evidence-based approach to this issue.

We know that at present JSA is paid fortnightly in arrears, that ESA is normally paid fortnightly in arrears, income support is normally paid fortnightly in arrears, and that tax credits are paid on request either weekly or every four weeks, although I think one would acknowledge that HMRC has an overriding discretion in that respect. Housing benefit is normally payable in arrears at intervals of a week, two weeks, four weeks or one month, but as I understand it, if the rent allowance is greater than £2 a week, the claimant can require it to be paid fortnightly. So in having for universal credit the norm as monthly payments, the Government are clearly not seeking to get the best fit with the current components that are to be displaced. Indeed, I think that the Minister and this debate have acknowledged that. He said on the same occasion in Grand Committee:

“With this system, we are one of the drivers of the way people behave and of social change”.—[Official Report, 10/10/11; col. GC 441.]

I support the comments that have been made by a number of contributors, including by my noble friend Lady Sherlock, about culture change, but culture change to what effect in this respect? We understand and accept the thrust of a system that encourages people into work and helps them to understand the benefits of work by seeing its financial rewards, but what is so important about trying to encourage people to get used to a monthly payment and budgetary arrangement rather than one on a different basis, even if they were in a position to do that? The noble Lord, Lord Freud, also referred in Grand Committee to his search for flexibility. If this is an acknowledgment that monthly does not have to be the rigid approach to payment, we may be closer on this issue than perhaps we thought.

We heard from the noble Baroness, Lady Meacher, my noble friend Lady Lister and other noble Lords about compelling reasons why payments on a monthly basis will create particular difficulties for some families, and not just a small minority of supposedly inadequate budgeters. As for mimicking work, which we have heard as well, while 75 per cent of those in employment are paid monthly, 25 per cent are not and half of those earning £10,000 a year or less are paid less frequently than monthly. We heard in Committee and again today about the growth in the business of payday loans. Recent surveys show that nearly half of the population struggles to make earnings stretch until payday, with 7 per cent considering taking out a high interest short-term loan within the next six months. The issue of how to stop the exploitation of poor people is a debate that I hope we will have on another day.

Amendment 1, eventually moved by the noble Baroness, Lady Meacher, would require regulations to be drawn up giving claimants the opportunity to require payment of their universal credit entitlement more frequently than would otherwise flow from Clause 7. We support this amendment and so, we hope, will the Minister, because it seems to fit foursquare with his acceptance of the need for flexibility. Obviously the regulations would have to set out practical parameters to the choice available to claimants, but this should include a fortnightly option. The Minister will know also that it would not preclude arrangements where a claimant could draw down against a monthly entitlement. It would be consistent with that. Neither would it preclude the Minister from retaining the distinction between the assessment period and frequency of payment, a point made by my noble friend Lady Lister.

It is understood that the Minister may argue that the issue of frequency of payment can be addressed by the development of new banking products and that he would not wish the Bill to preclude that. That is fair enough, but we consider that the thrust of the amendment moved by the noble Baroness, Lady Meacher, would not shut out those types of options provided that there are arrangements with parameters dealt with in regulation for claimants to choose. But we do not know today that these banking products can be delivered in time for the introduction of universal credit, whether they can be comprehensively available and without high cost. Without that certainty, it is right that something is included in the Bill along the lines of Amendment 1.

Perhaps the Minister will take the opportunity to update us on the Government’s thinking in this area, as other noble Lords have requested. In particular, do they support the proposition that there should be flexibility within sensible and practicable parameters of receipt patterns? Should there be a right for claimants to choose within these parameters? Can he confirm that the arrangements being considered are not just about drawing down on a monthly payment already made in arrears?

Amendment 2 is more clear-cut and, I think, more to the liking of the noble Lord, Lord Kirkwood. It sets down a requirement for amounts to be paid fortnightly. It has the merit of being clear and closest to the current patterns of receipt, making it slightly more manageable to exist from payday to payday. We support the amendment as an alternative proposition should Amendment 1 be rejected or fail today.

Localism Bill

Debate between Lord McKenzie of Luton and Lord Newton of Braintree

Wednesday 7th September 2011 Lords Chamber

[Lord McKenzie of Luton]

Perhaps I may make it clear that we voted on the original proposition because we believed that it would secure the best outcome. As that did not succeed, it is not inconsistent to want to see a lesser position that nevertheless improves on what is in the Bill. That is entirely sensible and reasonable. Whether we will be involved in those discussions is up to the Government. If they are going to bring something back—and I believe that that is the wish of the noble Lord, Lord Greaves—we will have an opportunity in this Chamber to join in the debate.

[Lord Newton of Braintree]

Before the noble Lord withdraws the amendment, as I presume he will, I will express the hope that the House will go along with this. We got into a mess earlier over the vote because of the separation of these issues, which could have been linked. We now have an opportunity to take up the Minister's offer of discussion. I think that we should, and I hope that neither she nor we will dig in out of purism, and that the Clerks will have their ears open.

Localism Bill

Debate between Lord McKenzie of Luton and Lord Newton of Braintree

Tuesday 19th July 2011 Lords Chamber

[Lord Newton of Braintree]

My Lords, so as to avoid the risk of upsetting everyone, I promise to be very brief. I want to make a totally different point, having had my attention drawn to it by the amendment of my noble friend Lord Brooke of Sutton Mandeville, with which I have some sympathy. I should like to know—this is in the Bill—how it can be established that a body is expressly for the purposes of,

“furthering the social, economic and environmental well-being of individuals living, or wanting to live, in an area”.

What does that mean? I imagine that everybody would like to live in certain parts of London. Certainly in my county there are villages where everyone would like to live. What does this mean?

[Lord McKenzie of Luton]

My Lords, we have Amendments 148AZZD and 148AZB in this group, but before I touch on them perhaps I should say how much I agree with the noble Lord, Lord True. I think that he very much set the tone for this debate, and the noble Lord, Lord Newton, and others have supported him. We need a system which is flexible, and everyone should not be forced to follow the horrendous bureaucracy included in these provisions.

Our Amendment 148AZZD is consistent with those of my noble friends Lady Whitaker and Lord Whitty and also consistent with the amendment in the name of the noble Lord, Lord Brooke of Sutton Mandeville, whose improvisation is always a joy to the Chamber. I very much agree with his addition of the word “cultural” to one of the considerations for well-being. Amendment 148AZZD simply reiterates the point that my noble friend Lady Whitaker made—that there are concerns, particularly expressed by the RTPI, that the inclusion of the words “either or both” could mean that a local plan might be focused only on business and not have the rounded sustainable development approach. I am bound to say that concerns over that are particularly reinforced by anxieties generally that the Government are shifting the definition of sustainable development. We could be reassured on that point if we had sight of the NPPF, which I understand is very close to publication —or it was last week. That may be one point on which the noble Baroness can enlighten us when she comes to respond.

Amendment 148AZB is aligned with the amendment of the noble Lord, Lord Cotter, which has not been spoken to. Frankly, I am not enamoured of our wording but the amendment seeks to ensure that when membership of a neighbourhood forum includes individuals who work in the area, they should, like individuals living there, reflect the type and size of businesses in the area to prevent possible domination by large businesses.

Picking up a little on the point made by the noble Lord, Lord Newton, who asked what on earth is meant by “wanting to live” in an area, perhaps the Minister can help us with the definition of neighbourhood forums being open to individuals who work there. What does that mean? Clearly, if someone has a place of work in a particular area and turns up there every day, that is clear cut and straightforward, but what about a jobbing plumber who may spend part of his time working in the area and part not, or a window cleaner who has part of his round in the area and part not? Indeed, what about someone delivering those free newspapers that we get these days? Would they be included as working in the area? What about someone who works on a construction site which may be in existence for two years, possibly when the neighbourhood forum is part-way through its work? Once work is finished on the construction site, do all the workers on it cease to be members of the forum? There are real issues of definition here which simply add to concerns about bureaucracy and we deserve some answers on them.

I turn to some of the other amendments that have been spoken to. As I have indicated, we very much support the thrust of what the noble Lord, Lord True, said on his amendment. We obviously support the government amendments which provide the opportunity to withdraw designation from a neighbourhood forum, although how rare that will be remains to be seen. I have indicated that we certainly support the noble Lord, Lord Brooke, in adding “cultural” to the requirements.

The noble Lord, Lord Greaves, took us through some of the democratic deficit in his terms and what needed to be done to try to redress that: forums should be open to all individuals and must have all-elected members. We absolutely support that. He also has Amendment 148AZZJ which says that organisations must have zero or minimal charges. That is important because you could have people squeezed out of membership by someone ratcheting up the charges.

There are a number of detailed points on some of the other amendments but the broad thrust of them is to make these arrangements more democratic and more inclusive. We are certainly supportive of all that. I think that the Government should take this collection of amendments seriously and address the issue of why everyone should be forced down the same route that is prescribed in the Bill when, at the moment, there is good practice which could be developed in other ways by a range of local authorities.

Localism Bill

Debate between Lord McKenzie of Luton and Lord Newton of Braintree

Thursday 30th June 2011 Lords Chamber

[Lord McKenzie of Luton]

I am going to speak in support of what my noble friend Lord Beecham said. It is the mention of airports that I cannot resist, of course, because we have one in Luton. I know how important it is to the local community and what a generator of jobs it is. In many ways, airports are the organisations least likely to need the measure that the noble Lord proposes because they have consultative committees anyway so there is automatically a wide engagement with the community. The principle of somebody who is potentially on the receiving end of a referendum or a petition knowing about that and the local authority having to make a decision to engage with them seems to be entirely reasonable. What we are balking at is that the specific amendment is a little too prescriptive and takes us too far down an unfortunate path. However, we are all well aware of the challenges that airports in particular face.

[Lord Newton of Braintree]

My Lords, I apologise to my noble friend but tempted again I have been—on this occasion just to show how even-handed I am—to join in a little bit with the noble Lords, Lord Beecham and Lord McKenzie, with due apologies to my noble friend Lord Jenkin. It is the third arm of this that worries me most. It says,

“any other person whom the authority considers to have an interest which is likely to be affected by any steps that the authority may take to give effect to the result of the referendum”.

It is not just airports. Major commercial developments, for example, have effects over a wide area. Leaving aside Stansted, about which I know a good deal, and which would certainly be said to have effects over 30, 40, 50 or 100 or more miles, Lakeside at Thurrock has had effects on shopping centres all over Essex. It is unimaginable that the local authority would really have to consult the people of Thurrock, Chelmsford, Colchester, Braintree and Brentwood—to name the Secretary of State’s constituency and indeed that of the noble Baroness, Lady Smith. We need some caution before going down the path scripted in this amendment. That is all I would say. There may be merit in the purpose but the wording needs very careful consideration.

Localism Bill

Debate between Lord McKenzie of Luton and Lord Newton of Braintree

Thursday 23rd June 2011 Lords Chamber

[Lord Newton of Braintree]

I am made nervous by the intervention of the noble Lord because he knows much more about local government than I do, except in the indirect way that I have described. However, these are decisions of the local authority. I think I am right in saying that ultimately planning decisions could go to the whole council, although they are normally dealt with by the planning committee. Am I wrong on that? Some real issues arose towards the end of the speech of the noble Lord, Lord Greaves, concerning decisions delegated to officers by the planning committee.

However, I find it very odd. I know about the worries that underlie this sort of thing, but I make the point that planning decisions are often very, very important to local communities—I am thinking of things like supermarket applications and the like. It cannot be right that a councillor representing an area should not be allowed to express a view to his constituents that he then reflects in what he does on the council, or indeed the planning committee. If there is corruption involved, that is a different issue; but if it is a genuine view, formed on the basis of what constituents have put to him on the effects of that application on the neighbourhood, he should have the same right as a Member of Parliament in respect, for example, of an airport application, which is to express his views to his constituent and to reflect those views in his votes in the House.

[Lord McKenzie of Luton]

My Lords, I rise to speak to our amendment in this group, Amendment 96ZA, which calls for a review and report on the operation of the section and is framed really as a probing amendment. I support the probing that has been undertaken by the noble Lord, Lord Greaves, because we are seeking to understand how much difference this provision will make to the status quo. I say to the noble Lord, Lord Newton, that his exposition of what he believes the current arrangement to be is not the full position, as I understand it. That is my understanding from a non-legal background, but I will try to come on to it and explain that point.

Views have been expressed to me that this clause provides a slippery slope that will potentially undermine the integrity of decision-making, especially on planning decisions, and will be a charter to allow bias. Others welcome the clause, as we have heard today, and consider that perhaps it does not go far enough, with some confusion around the term “closed mind”. In order to understand it, I have tried to set down a baseline to judge whether it has moved us on from the current position. Perhaps the Minister will take the opportunity to explain what this intended change will mean in practice.

As I understand it, the courts currently recognise two types of predetermination: actual predetermination and apparent predetermination—the latter is why the noble Lord, Lord Greaves, is pursuing the point about “to have appeared to have had”. Actual predetermination is where,

“a person has closed their mind to all considerations other than an already held view”.

That means that the exercise of a discretionary power where one or more of the decision-makers does not in fact exercise the discretion at all is unlawful as an abuse of that discretion. Apparent predetermination is where,

“the fair minded and well-informed observer, looking objectively at all the circumstances, considers that there is a real risk that one or more of the decision makers has refused even to consider a relevant argument or would refuse to consider a new argument”.

However, predetermination of course has to be distinguished from predisposition, where a councillor may hold a view for or against a particular development, say, but has an open mind as to the merits of an argument before making a final decision. There is a difference between predetermination and predisposition. The courts, as I understand it, have moved towards a more pragmatic approach in recent years. The Standards Board of England summarised the position in a rather helpful way—I think we will miss that body—so perhaps I can just read what it says are the practicalities of local government from the case law and what has happened to date. The Standards Board says:

“The courts have accepted that these practicalities mean that the fair minded and informed observer accepts that … Manifesto commitments and policy statements which are consistent with a preparedness to consider and weigh relevant factors when reaching the final decision, are examples of legitimate predisposition not predetermination … The fact that the member concerned has received relevant training and has agreed to be bound by a Code of Conduct is a consideration to which some weight can properly be attached when determining an issue of apparent predetermination … Previously expressed views on matters which arise for decision in the ordinary run of events are routine and councillors can be trusted, whatever their previously expressed views, to approach decision making with an open mind … To suspect predetermination because all members of a single political group have voted for it is an unwarranted interference with the democratic process … Councillors are likely to have and are entitled to have, a disposition in favour of particular decisions. An open mind is not an empty mind but it is ajar”.

--- Later in debate ---

[Lord McKenzie of Luton]

My Lords, I am grateful to the Minister and I am sorry to have interrupted him on two or three occasions, but this is a very important issue. We accept the anxiety in local government about what councillors can and cannot do, and the importance, as the noble Lord, Lord Greaves, said, of the democratic component of this so that people are not precluded from campaigning on issues they feel strongly about. But that is the position at the moment, for as long as their minds are ajar.

Sometimes very cautious advice is given and therefore people tend to be more restricted than the law may otherwise allow, but notwithstanding all that—I think we have common cause in what we see as a proper outcome in this, so that if you have a closed mind or you are going to be involved in a decision, you should be able to judge the facts objectively and not predetermine the matter—I still see a difficulty in this provision. That is because I cannot see how you would ever get evidence of someone having a closed mind on the basis of this provision. It seems that you would have to ignore what they had said and done and campaigned around right up to the point when they make the decision. That seems to me to be an anomaly and I am still not sure where it leaves us.

[Lord Newton of Braintree]

My Lords, I am so encouraged and enthused by being described as helpful by my noble friend on the Front Bench—for the first time in a long time, perhaps even uniquely—that I feel the need to intervene again. I agree to some extent with what the noble Lord has just said, but my concern is that, in all honesty, I feel as though I have strayed into wonderland or into a bit of my philosophy course when I read PPE some 50 years ago. This distinction between predisposition and predetermination is like angels dancing on the head of a pin. As a councillor, you would have to be mad not to say, if you wanted to have any effect at all, that while you had had a view, you had looked at the new evidence and it had not changed your predisposition. That would not amount to predetermination. The whole thing is complete nonsense.

My concern is that it leads to a fracture in the relationship between councillors and their constituents. They have to fence with issues, pretending that they do not have a view, or telling their constituents that they do not have a view or dare not have a view because it might affect their ability to vote. That will not be understood by any ordinary person. Councillors are elected to represent people and in relation to their views. Indeed, in some circumstances they may want to express a view. This is daft, and MPs would not put up with it.

Let us take the example of Stansted, which I think has been the subject of votes in Parliament. The MP for Saffron Walden, my neighbouring constituency in the old days, was against it and would no doubt vote against it. In Braintree I was cautious because I was in favour of Stansted, but not all my constituents were, so I did keep my head down a bit. But if I had been against it, I would have been appalled if I could not have said so and then voted in Parliament. If my noble friend has a chance to say another word, can he say why things should be different for councillors from how they are for Members of Parliament? I can see no answer to that.

[Lord McKenzie of Luton]

As I understand it, the impact of this clause will make it clear that individuals can campaign as you would want, but I hang on to the point that for as long as they leave open the possibility of a change of mind in due course, having examined the facts and merits of a case, they are not precluded from campaigning at the moment either. That is why I am seeking to probe just how much difference this clause makes.

[Lord Newton of Braintree]

I understand that, but reference was made to Mr Justice Andrew Collins, a great and good man. However, I would not want to be the judge who had to distinguish between predisposition and predetermination in circumstances where the person involved denied predetermination. You would have to be a mind reader, so it is not sensible.