Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Pannick Excerpts

3rd reading
Tuesday 4th July 2023 Lords Chamber

[Lord Faulks (Non-Afl)]

My Lords, I thank the Minister for tabling these amendments in response to amendments tabled by me and the noble Lord, Lord Godson, which were supported by the noble Baroness, Lady Hoey. I thank the Minister and his officials very much for the constructive way in which they engaged with us to produce this complex amendment in response to our simpler but plainly inadequate amendment. I also thank the noble Lord, Lord Butler, who is not in his place. He supported the amendment on the basis of the well-understood Carltona doctrine.

I have also been asked to mention the noble Lord, Lord Howell, who is in the interesting position of being the only living Minister who was in Northern Ireland at the time and directly involved with this and a number of other ICOs. I thank him and many other noble Lords for their help with these amendments. They will do a great deal to restore the Carltona principle to its proper place and it will put right a decision of the Supreme Court which was no doubt reached in good faith but which was, in retrospect, wrongly decided.

I have a couple of questions for the Minister, of which I have given him notice. The first is in relation to the commencement date for the two new clauses. They are described as coming into force two months after Royal Assent. I understand what he says about those extant criminal appeals. It seems that delaying this for two months risks there being some further appeals which will go forward on the rather unfortunate premise that the relevant ICOs were unlawfully entered into. Can he clarify that?

Secondly, the second proposed new clause contains an order-making power, for regulations under Section 55(2), which is consequential on the section and allows a Minister to amend this Act. They are subject to the affirmative procedure, but I am concerned, as the House always is, by powers of this scale. I seek an assurance from the Minister: although I know that the current Secretary of State will not be amending the Act to, in any way, take away with the left hand what it has given with the right, it would be useful to have on record the assurance that the Bill does not intend to amend its provisions in any substantial way, particularly those that are the subject of these amendments.

I welcome these amendments and thank the Government very much for their co-operation.

[Lord Pannick (CB)]

My Lords, I support the amendments, but mention has been made of the Supreme Court judgment in R v Adams [2020] UKSC 19, which caused the difficulties that these amendments are designed to address.

On 26 June, on Report, my noble friend Lord Faulks referred to Policy Exchange as having

“consistently and cogently argued that the decision flew in the face of the well-established Carltona doctrine”.

That has been explained as the doctrine that the powers of the Secretary of State may be exercised on their behalf by junior Ministers or officials. My noble friend Lord Butler of Brockwell expressed concern that the Carltona judgment

“has been thrown into doubt by this judgment”,

which he described as “this very extraordinary ruling”. The noble Lord, Lord Howell of Guildford, said that he was

“astonished, frankly, that such a legal error could have been made”.—[Official Report, 26/6/23; cols. 502-6.]

The judgment of the five judges of the Supreme Court was given by the late Lord Kerr of Tonaghmore, a distinguished and much-respected jurist. In his judgment, Lord Kerr recognised the role and importance of the Carltona principle. His reasoning was that the principle did not apply in the Gerry Adams case, because of the specific wording of the relevant statutory provision, which expressly distinguished between the making of the detention order and the signing of the order. The statutory provision said that the order could be signed by the Secretary of State, a Minister of State or an Under-Secretary of State. Lord Kerr’s conclusion was that the distinction expressly drawn in the statutory provision between the making and the signing of the order necessarily meant that only the Secretary of State could make the order.

My point is that it is simply wrong to accuse Lord Kerr of ignoring the Carltona principle or throwing it into doubt. The judgment, whether or not you agree with it—different views are, of course, permissible—was based on an analysis of the express terms of the relevant statutory provision. I am concerned that this House should not unfairly impugn the reputation—the well-deserved, high reputation—of the late Lord Kerr.

If I understood the Minister’s opening remarks correctly, he said that the amendment restores the legal position, as it had been widely understood by Ministers, prior to the Supreme Court judgment. With respect, that is not quite right, because Lord Kerr’s judgment refers to the legal advice that was given to the Attorney-General in July 1974 by JBE Hutton QC, later Lord Hutton of Bresagh. Mr Hutton, as he then was, advised Ministers through the Attorney-General. I quote from paragraph 6 of the judgment of Lord Kerr that

“a court would probably hold that it would be a condition precedent to the making of an ICO that the Secretary of State should have considered the matter personally”.

I repeat: I support the amendment, but I hope it is appropriate to put those matters on record.

European Union (Withdrawal Agreement) Bill

Lord Pannick Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

It is a pity for me that we have not succeeded in getting far with the Government in negotiation up to this point, but there is always the hope that something may happen. I certainly want to show as open a way to the Government as I possibly can to try to get on with this matter, which is important constitutionally, although it may not look that important to politicians generally. However, it is a very important part of our constitutional arrangement to secure the independence of the judges. I therefore intend to pursue this amendment, subject to what your Lordships may have to say about it.

[Lord Pannick (CB)]

My Lords, I declare an interest as a practising barrister. I have signed Amendments 12 and 13, tabled in the name of the noble Lord, Lord Beith, but I am very happy to support the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern. The reason is that Clause 26 is fundamentally objectionable, because it would give the Minister a delegated power to decide which courts should be able to depart from judgments of the Court of Justice and what test those courts should apply. These are powers which step well over the important boundary between the Executive and the judiciary. They are matters which should not be decided by Ministers.

Perhaps I may briefly respond to the points made by the noble and learned Lord, Lord Keen, the Minister in Committee, because I anticipate that the noble Lord, Lord Callanan, will make the same points as his substitute today, as we have heard from the noble Lord, Lord Beith. The first point that the noble and learned Lord, Lord Keen, made was that we are not, as he put it, in “novel territory”, because Section 6 of the 2018 Act has already looked at which courts should have this power. The simple answer is that what is novel is a delegated power for Ministers, which I have described.

The noble and learned Lord’s second point was that there are safeguards because Clause 26 requires Ministers to consult the judiciary. That does not reassure me; it is still Ministers who will decide these important matters. His third point was that the power would, as he put it,

“be employed in a way that is consistent with our own constitutional norms and traditions”.—[Official Report, 15/1/20; col. 691.]

I suggest that it is no answer to the conferral of unacceptably broad powers to have Ministers assure us that they will exercise those powers reasonably. The objection is to the powers being conferred on Ministers, because once they are conferred the political and legal constraints if they decide to act unreasonably are limited.

The noble and learned Lord’s fourth point was that there are diverse views on the question of which courts should be able to depart from Court of Justice decisions, but this is not a new issue. We debated it at length on the 2018 legislation. Ministers have had plenty of time to consider whether the solution adopted in 2018 requires amendment. If Ministers want more time, and want to consult, the answer is not for them to take unacceptably broad powers. The answer is to bring a short Bill before Parliament, in a month or so, proposing such amendments—and then Parliament can decide.

These amendments raise issues of considerable constitutional concern and importance. As the noble Lord, Lord Beith, said, they have absolutely nothing to do with the merits of Brexit, the terms on which we leave the EU or the timetable for Brexit. It is, I suggest, our constitutional responsibility, when a Government bring forward a provision as constitutionally objectionable as Clause 26, to ask the House of Commons to think again. That is particularly so when, as the noble Lord mentioned, the Government have been in two minds—to put it politely—on this issue today.

[Lord Howarth of Newport]

The noble Lords and noble and learned Lord who have already spoken have advised us, rightly, that there are extremely important constitutional issues raised in Clause 26. They have dwelt upon the manner in which Ministers would trespass upon the proper responsibility of the judiciary. I simply add the thought that by taking powers to deal with these matters under regulations, Ministers are also trespassing upon the proper responsibility of Parliament, because Parliament would not be able to give adequate consideration to what could be very important policy decisions by Ministers. They might be seeking to require the courts to consider different tests where environmental policy, or workers’ rights policy and law, are concerned. These must be matters for Parliament to be able to consider fully and deal with in primary legislation.

The adoption of these powers by the Government would be doubly offensive in constitutional terms. The noble and learned Lord, Lord Mackay of Clashfern, has proposed a partial remedy at least that is, as always, both wise and practical. I simply say to the House that if we approve the amendment that he has tabled, and I hope we will, it is no more than damage limitation and does not undo all the mischief that this clause provides.

Freedom of Establishment and Free Movement of Services (EU Exit) Regulations 2019

Lord Pannick Excerpts

Wednesday 23rd October 2019 Lords Chamber

These regulations are a clear breach of the undertakings given to Parliament. They should be withdrawn, a full legal and impact analysis should published and, if the Government want to bring them back, they should do so in the proper way via primary legislation.

[Lord Pannick (CB)]

My Lords, I share the concerns expressed by the noble Lords, Lord Stevenson and Lord Oates. In his opening remarks, the Minister emphasised that these regulations impose no new obligations, but that is not the concern; the concern is whether they remove existing rights. He was anxious to downplay their impact, yet at the same time he told the House that they are necessary because, unless they are implemented, this country might face problems at WTO level. I am puzzled as to how those two matters can be reconciled. I would be grateful for his elaboration on that point.

In any event, it seems to me, as it does to the noble Lords, Lord Stevenson and Lord Oates, that these are very complex matters, and in my view they are highly inappropriate for a statutory instrument. They surely cry out for detailed assessment as to their purpose and effect as a matter of policy by primary legislation. The method being used by the Government is delegated legislation under Section 8 of the European Union (Withdrawal) Act 2018. Noble Lords will recall the sensitivity of that issue, the care and attention which this House in particular gave to the powers being conferred on the Government and its anxiety to constrain the use of such powers so that they did not relate to matters of policy. As the noble Lord, Lord Oates, indicated by reference to the speech of David Davis, the then Secretary of State, that was the view of the Government themselves.

I remind the House that the Government have made it clear from the outset that these delegated powers would be used only in the most circumscribed way. The White Paper that preceded the publication of the Bill Legislating for the United Kingdom’s Withdrawal from the European Union said at paragraph 3.17:

“Crucially, we will ensure that the power”—


that is, the power to make delegated legislation—

“will not be available where Government wishes to make a policy change which is not designed to deal with deficiencies in preserved EU-derived law arising out of our exit from the EU”.

The Explanatory Notes that accompanied the EU withdrawal Bill 2018 said at paragraph 14:

“The Bill does not aim to make major changes to policy or establish new legal frameworks in the UK beyond those which are appropriate to ensure the law continues to function properly from day one. The Government will introduce separate primary legislation to make such policy changes which will establish new legal frameworks”.


It seems to me, as it does to the noble Lords, Lord Stevenson and Lord Oates, that these regulations are in breach of those statements. I share the regret which the amendment proposed by the noble Lord expresses.

[Baroness McIntosh of Pickering (Con)]

My Lords, since the noble Lord, Lord Oates, and I entered the House together on the same day, I always follow closely what he says. He said that the position of UK nationals could be placed in jeopardy in the member states and other countries mentioned in the statutory instrument.

Paragraph 2.4 of the Explanatory Memorandum states:

“Directly effective rights derived from TFEU Articles are based on reciprocal relationships between EU Member State territories. Directly effective rights derived from EU bilateral and multilateral agreements are based on reciprocal relationships between EU Member State territories and certain non-EU territories”.


The Parliamentary Under-Secretary of State for the department who introduced the statutory instrument in Committee in the other place said that a reason for it was sovereignty. He stated:

“Given that the rights will no longer be reciprocated, failing to disapply the rights in UK law would leave a lack of clarity as to whether EU nationals and nationals of countries with associated agreements had additional rights, compared with nationals of other countries, to challenge the laws and decisions of UK authorities after Brexit”.—[Official Report, Commons, Third Delegated Legislation Committee, 21/10/19; col. 4.]


The SI and this debate so far seem to be silent on what the position will be of British nationals working, either having established their service or with free movement to provide services, in another EU country.

I would be grateful if my noble friend the Minister could put my mind at rest by saying that those people will not be disadvantaged. Are we moving away from reciprocity? Will he confirm that we are seeking to negotiate their future rights? What is the position of lawyers? I remind my noble friend that I am a non-practising Scottish advocate who practised EU law in Brussels. I would be very pleased to know that these rights will remain reciprocated after 31 October.

--- Later in debate ---

Going forward, what we really want is reciprocity between the UK and the EU, but that is not something you can create unilaterally. We cannot do that, which is why, even though I wish things to go forward as smoothly as possible, there are certain elements—they are modest, which is why there is no impact assessment—in this which we are looking at now to try to move this forward. I can see out of the corner of my eye that the noble Lord, Lord Pannick, is very keen to stand.

[Lord Pannick]

I am very grateful to the Minister. I ask him a question out of genuine puzzlement, in the sense of my noble and learned friend Lord Brown of Eaton-under-Heywood. His argument to the House, as I understand it, is that there is no need to worry because the individuals concerned will continue to enjoy the directly effective rights which are being brought across into our domestic law by the 2018 Act. My puzzlement is because Regulations 2(1) and 3(1) both say that any,

“rights, powers, liabilities, obligations, restrictions, remedies and procedures”,

which continue by virtue of Section 4(1) of the 2018 Act,

“cease to be recognised and available in domestic law”.

I am puzzled because I am concerned that the read-across is being disapplied by this very regulation.

[Lord Duncan of Springbank]

It is quite clear that we have not succeeded in convincing the noble Lord that the reality is that the retained EU law, which this House fought so carefully over and which was enshrined in the withdrawal agreement, sets out the rights of individual EU nationals in this country with regard to their ability to be employed or self-employed, to offer services and so on. That is contained in retained EU law and will become operational and functional at that point in the future.

Here we are talking about making adjustments to that retained EU law for certain rights to invoke the previous entity of the EU as a means of engaging directly with the Government as a challenge. It is that part we are talking about today.

--- Later in debate ---

[Lord Duncan of Springbank]

The noble Baroness will be aware that the Government’s policy is to secure that deal. That is why we are here. The reason this has had to come forward in the manner in which it has is that, although this House and the other place have been clear that they do not wish the UK to leave with no deal—which I wholeheartedly share and endorse—that is not in our gift alone to ensure. The unintended consequences of actions that may unfold over the next few weeks could lead us into a scenario in which a no deal does emerge, and that scenario is the one we are touching on here. If it does not emerge, we will not have any of the risks we are touching on here because we will continue, I hope, to move into an implementation period during which we negotiate that future relationship. That is the point. This instrument is here because, in a scenario in which we end up outside the EU, these elements will be deemed necessary. As I said, the purpose is to ensure that in those small areas this aspect of the law is addressed.

I think I need to write—and am willing to do so—to every noble Lord who has received letters raising these concerns to set out the situation, in language clearer than my department has thus far achieved, to ensure that those individuals have confidence that they will not find themselves in any of the darker scenarios of which they may be fearful. That is critical and I give that commitment here at the Dispatch Box. If noble Lords will contact my office, I will write to every individual to ensure that they fully appreciate exactly what this suite of statutory instruments means and, in particular, what it does not mean. It is critical that that is done.

[Lord Pannick]

Perhaps I may suggest to the noble Lord that a more sensible approach would be to withdraw these regulations and redraft them so that they say precisely what they are intended to achieve and what rights are preserved.

[Lord Duncan of Springbank]

I disagree with the noble Lord for one simple reason. This is the moment when we face the question of whether we shall exit the EU with or without a deal. The purpose behind my offer is to reassure those individuals who fear that they will be in some way undermined in their rights in this country. They need to be reassured and I would much rather do that today. I am not sure I can sign all the letters in one go but, over the next few days, I will be keen to write to all those individuals affected. In so doing so, I hope to reassure them that this instrument does not do what they are fearful of. That is the most important aspect: this does not do what they fear it does. It is critical that it is taken from this debate, however it resolves itself, that there will be no impact on the 2.3 million EU citizens residing here; they will be in no way affected. They will be able to do their business, be it in self-employment, the operation and delivery of services or any other aspect. That must be taken from the debate today, irrespective of how we get to that conclusion.

I hope that in so doing I can not only give confidence to the noble Lord, Lord Stevenson of Balmacara, but, more importantly, give the individuals who have approached him and a number of other noble Lords the confidence that they need right now. On that basis, I beg to move.

Localism Bill

Lord Pannick Excerpts

Monday 31st October 2011 Lords Chamber

Moved by

[Lord Pannick]

3: Clause 25, page 36, line 37, leave out subsection (2) and insert—
“(2) In deciding whether a decision-maker had, or appeared to have had, a closed mind to any extent when making the decision—
(a) the relevant time at which that issue is to be assessed is when the decision of the relevant authority was formally taken;(b) an earlier statement or conduct by the decision-maker that amounts to predisposition is irrelevant; and(c) 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.”

[Lord Pannick]

My Lords, Clause 25 is directed at the concern that local councillors must be able to express views on controversial local issues such as, for example, whether to give planning permission for a bail hostel without being accused of bias when the issue comes up for a vote at the council meeting. There are two main objections to the drafting of Clause 25 which the amendment seeks to rectify. The courts have adopted a sensible approach in this context and a local councillor can express strong views on an issue prior to the council meeting as long as he maintains an open mind in the sense that he is willing to listen to the competing arguments and the advice of officials at the council meeting before casting his vote. The courts have explained that the common law allows strong predisposition and the holding of strong prior opinions; it prohibits only predetermination, the closing of the mind and the unwillingness to listen to the debate before casting a vote. It is extremely unclear whether this distinction between predisposition and unlawful predetermination is being maintained by Clause 25 or whether it is, in some respects, being amended. It is so unclear that it will inevitably lead to protracted and expensive litigation, a process that will undermine rather than advance the Government’s objective. That is the first objection.

The second objection to Clause 25 which the amendment seeks to rectify is that it appears—I say “appears” because the clause is very difficult to interpret—to provide that as long as the local councillor says or does nothing at the council meeting to indicate a closed mind it is legally irrelevant what he or she may have said or done before the meeting to demonstrate a closed mind—that is, predetermination. For example, if at the council meeting the councillor says nothing during the debate but votes against the bail hostel, under Clause 25 there could be no legal complaint of predetermination. That would be so even though, on the way into the council meeting, he announces to the television news cameras outside that he is not interested in what is going to be said at the debate. That would be a substantial change in the law and one very much to be regretted.

The two concerns that I have outlined are exacerbated because Clause 25 will apply not only to controversial political decisions in local government but to all functions, including, for example, employment and contracting decisions. In those other areas, in particular, it is of great importance that local councillors have an open mind; that they hear the arguments at the council meeting and listen to the advice of officials before they make up their mind.

I have received a letter from Mr Clive Lewis QC, who is the chairman of the Constitutional and Administrative Law Bar Association, a copy of which I sent to the Minister, expressing concerns very similar to those I have set out. I have also been informed by the Association of Council Secretaries and Solicitors that it, too, is very concerned that Clause 25 as currently drafted will lead to uncertainty and run the risk that serious cases of alleged bias could not be challenged in the courts.

I am very grateful to the Minister’s officials for taking time to seek to explain to me the reasoning behind Clause 25 at a meeting last month. However, my concerns remain. This amendment would set out—I hope clearly—the principles stated by the courts so that local councillors and their advisers would be in no doubt that the prior expression of strong opinions is not prohibited by law. Even at this late stage of consideration of the Bill I hope the Minister will think again on this subject. I beg to move.

[Lord Hart of Chilton]

My Lords, my name is associated with this amendment and I support it for the following reasons. I believe it is common ground that councillors should not be prevented from or penalised for speaking their minds on the hustings. I do not accept the anecdotal evidence that if councillors speak out on an issue then they are banned from voting at a committee. If they are being given that advice then it is bad advice and it should be clarified. You do not need a statutory provision to do that.

A predisposition has always been permitted but not a predetermination. I think it is also common ground that decision-makers must approach their task with an open mind. They must listen and consider all the arguments and then reach a conclusion. It is self-evident, for example, that a Secretary of State who as a local MP has crusaded passionately against wind farms saying there are no arguments in their favour cannot decide an appeal against the refusal of a wind farm planning application. He must—and I am sure he would—recuse himself.

In the present case, in a much less exalted position but important nonetheless, a councillor who declares himself opposed to an application and states he is determined to vote it down ought not to pursue such a course up to and including the planning meeting. However, the Bill appears to provide a loophole for this by affording an opportunity for a councillor to state wholesale opposition right up to the door of the planning meeting and then to remain silent at the meeting itself nevertheless casting his vote. In such a case the provisions of the clause mean that clear evidence of bias, which that is, is impermissible evidence. That cannot be right. At worst this clause could, I fear, become a bigot’s charter, which cannot be in the public interest.

The amendment offers a solution. It confirms the present position of predisposition but provides a potential sanction for predetermination if the circumstances permit. I emphasise that this does not prevent the crusader councillor from crusading. He can attend usbthe council meeting to represent his views but he must not, if his mind is made up before the meeting, participate in the voting on the decision itself. That must be left to those who come with an open mind to listen to all the arguments before finally coming to a decision. That is the law and it is in the public interest that it be upheld.

The current wording of the Bill does not do so. It could well be used as shield or a licence for bias and is bad policy because the clause applies not just to planning but to all functions of authorities, some even more sensitive, where greater restraint on strong expressions of view is called for. Cases of bias are extremely difficult to get on their feet. This clause makes it almost impossible because those who are biased will now remain silent during the committee’s deliberations.

--- Later in debate ---

With this explanation, I hope that the noble Lord will feel able to withdraw his amendment.

[Lord Pannick]

I am very grateful to noble Lords who have spoken in this fascinating debate and to the Minister for his detailed response. I shall respond briefly, attempting to avoid any indication of exacting purity that may offend the noble Lord, Lord True, or indeed any other form of reprehensible purity on this matter.

The Minister indicated that there is nothing wrong with the common law rules, and I respectfully agree with him. The problem, the Minister said, is the erroneous advice that is being given to local councillors up and down the land. The problem with that analysis is that, if the advice is the erroneous advice, we should deal with that advice. Let us not amend the common law in a way that changes the current position—and changes it by excluding from relevance the legal material that can demonstrate that there is unlawful predetermination.

[Earl Attlee]

May I explain the advantage of Clause 25 and the way that it is drafted? If I was a councillor and engaging, as a layman, with officials who were giving me advice, I would be able to produce the words in Clause 25 and say, “It says here that I can express a view”, and there would be very little that officials could do to counteract that.

[Lord Pannick]

I understand the point and am grateful to the Minister. However, the clause introduces clarity by amending the common law, which the Minister is concerned to maintain. The clause does not maintain the existing common law rules, which the Minister considers entirely adequate. The clause excludes from consideration anything that is said or done prior to the council meeting at which the issue is to be discussed, however extreme the previous statement may be. I entirely accept that what the councillor said prior to the council meeting may not be determinative of whether there is unlawful predetermination, but it must be relevant. That is the objection to Clause 25: it purports, in the Minister’s words, to restate the common law, which the Minister regards as entirely appropriate and unexceptionable. What it actually does is amend the existing common law in a way that will prevent real cases of predetermination being brought and succeeding.

Real concern was expressed in this debate that it is absolutely vital that local councillors should be able to express their views on matters powerfully and strongly if they wish. The noble Baroness, Lady Eaton, and the noble Lords, Lord True and Lord Greaves, made this point. I entirely agree with them that that is the common law position. The cases make it absolutely clear that local councillors deciding any matter are not impartial in the sense required of a judge; they have political allegiances, their politics involve policies and they are entitled to express their views—of course they are. The case of Lewis v Redcar and Cleveland Borough Council in 2009, covered from page 83 of Volume 1 of the Weekly Law Reports, is the leading Court of Appeal judgment. It says that any local councillor who expresses his views powerfully and strongly on any view is not guilty of unlawful predetermination so long as he is prepared to keep an open mind when he goes to the council meeting.

The noble Lord, Lord Sewel, and the noble Lord, Lord Snape, asked for reassurance in relation to the role of party groups and party whips in local government. That, too, has been considered by the courts. In the same case of Lewis v Redcar and Cleveland Borough Council, the Court of Appeal approved an earlier judgment in 1985 by the noble and learned Lord, Lord Woolf—then Mr Justice Woolf—where he said:

“I would have thought that it was almost inevitable, now that party politics play so large a part in local government, that the majority group on a council would decide on the party line in respect of the proposal. If this was to be regarded as disqualifying the district council from dealing with the planning application, then if that disqualification is to be avoided, the members of the planning committee at any rate will have to adopt standards of conduct which I suspect will be almost impossible to achieve in practice”.

[Lord Greaves]

I apologise for intervening, but I wonder whether the noble Lord is aware that there is a very widespread view within local government, which in my view is widespread in its application, that on things that are thought to be quasi-judicial like licensing and planning applications there is no party whipping. There may be discussions, but no party whip is applied.

[Lord Pannick]

I understand that, of course; I am responding to the point made that if our amendment were to be carried, this would in some way affect the existence of that whipping that does take place in local government—those elements of party control that are effective. Let me just complete the citation from Mr Justice Woolf: he concluded that there is no objection to any of this so long as, when the councillors come to the council meetings, they have an open mind in the sense that they are prepared to listen to the competing arguments.

The noble Lord, Lord Greaves, was rightly concerned that we should do nothing that should enable lawyers to make lots of money out of all this. That is a very laudable objective. My concern is that Clause 25 is so unclear that it will inevitably provoke litigation, and it will do so because the Minister says that it is not changing the common law but merely expressing it, whereas its terms manifestly do change the common law.

[Lord True]

On the question of litigation, will the noble Lord answer the point that my noble friend Lord Greaves and I made? If we are concerned about litigation, surely the construction of his proposed new subsection (2)(c),

“as is appropriate in the circumstances of the case”,

which may, as construed with the rest of the section, apply to any decision of any form made by a councillor, is pretty ripe for litigation. Therefore, I do not think his argument that the Government may cause more litigation stands up. Let him answer on this one.

[Lord Pannick]

My answer to the noble Lord is that paragraph (c) is simply designed to maintain—as the Government say they wish to maintain—the existing common law principle, which is that the judge will indeed look at all the circumstances of the case and decide whether there has been unlawful predetermination. I am not seeking to change the common law position; I am seeking to maintain it. The Minister has the same objective; he does not have the objective—as I understood him—of changing the substance of the common law. The objection to Clause 25 is that, on its wording, that is precisely what it will do, or there is a real risk it will do that. That is why it needs further consideration.

In the hope that the result in your Lordships’ House is neither predetermined—

[Lord Sewel]

Could the noble Lord explain how his amendment would affect, for example, the situation where, a councillor at a committee meeting having argued very strongly on one side but the party group having met and decided collectively on a different position, the councillor then says, when approached immediately before the council meeting, “I am changing my vote”, and, when asked why, says, “That was the decision of the group and I accept it” and then goes into the council meeting and votes in accordance with the decision of the group? How would the amendment address that issue?

[Lord Pannick]

The amendment would address that issue by dealing with the question in the same way as the common law deals with it at the moment. No judge is going to accept that there is unlawful predetermination simply because a local councillor has followed the whip that is imposed by his own party or his own group. This happens day after day in local government, and there are no cases that can be pointed to in which the courts have said that that is unlawful predetermination. It is not unlawful predetermination because the local councillor has listened to the matters addressed in the local council meeting.

We are dealing with a phantom problem that is created by erroneous advice being given, or is said to be given, to local councillors up and down the land. We are dealing with it in Clause 25 in a way which is going to make the problem far, far worse; and it is for that reason that I wish to test the opinion of the House.