Localism Bill

Baroness Hamwee Excerpts

Monday 12th September 2011 Lords Chamber

[Lord Beecham]

My Lords, the ingenuity of the noble Lord’s colleagues defies description. I certainly welcome this sensible amendment. However, it is timely to say a word in favour of the leader and executive model and, in particular, to draw attention to the one part of the recent publication by the noble Lord, Lord Adonis, with which I agree. In relation to elected mayors, the paper makes a strong point. I told him that I agreed with something he had written and he was surprised. The relevant part is the emphasis that he makes about the need for a strong and independent scrutiny function, with which I entirely agree under whatever system is operated—be it mayoral, leader and executive or a straight committee system.

There are those who are still in love with the old-style committee system; the notion that you have a collection of Socratic city elders engaged in philosophical dialogue about the affairs of state in a particular borough or authority. I am bound to say that that does not accord with my own experience, particularly after serving for many years as chairman of committees, leader of the council, and so on.

When I departed to the Siberian power station of the arts and recreation committee, having given up the leadership and any other executive position—by choice I may say; it was self-imposed exile—I discovered that as a back-bench member of the traditional committee system one’s influence was pretty limited. When you are in the chair you can move things on quite briskly: you have an agenda and you get it through. When you are a back-bench member you usually have a political group meeting beforehand. It may last about an hour and there are 12 or 15 of you, which gives an average of four or five minutes each. The point of the formal meeting is to get it over with as quickly as possible. In reality, very little of the purported scrutiny takes place in the traditional committee system nor is there very much influence over policy.

That was summarised for me most effectively one day—I hope your Lordships will forgive this brief anecdote. I had missed a committee meeting of the arts and recreation committee but went to the next one. I read the minutes, which said that a member had raised a question about birds eating the grass seed in the Leazes Park allotments. I thought to myself, “Has it really come to this?”. We had an £800 million budget, with goodness knows how many problems and opportunities to debate, and the most the member could think of to raise at a committee meeting was birds eating grass seed at an allotment. I do not say that that entirely characterises the committee system, but there is some danger of that happening.

The main thrust of my, perhaps somewhat tedious, observations is to recommend that, whatever the circumstances, there must be a strong and independently sourced scrutiny role, not only to hold the executive to account, because perhaps too much of scrutiny has been based on a retrospective look at the actions of an executive, but to look forward, and, as it should be, in an unwhipped forum, at policy, development and so on. That is not incompatible with a committee system, but in reality, in my experience, it rarely took place that way. It needs a push for strong scrutiny and I hope that irrespective of the provisions of the Bill, the Government will encourage authorities to maintain and enhance that scrutiny role, whatever type of authority they are and whatever model of governance they adopt. I certainly would not oppose these amendments to give councils the option to choose their own system.

[Baroness Hamwee]

My Lords, my noble friend, who I understand has executive responsibility for grass seed in the London Borough of Sutton, along with allotments and other matters, would have wanted to have come back to say that these amendments are not about the merits of any particular system, but about local decisions about what is appropriate for each local authority.

I think that the noble Lord, Lord Beecham, would agree that scrutiny is a developing art rather than a science, and that the experience of different systems over the past 10 years has contributed to an extension of that expertise.

This is not much of an anecdote I am afraid, but my first experience of scrutiny was as a member of what we then called the performance review committee, which was formed largely to respond to what the Audit Commission had to say about what was going on in the authority. My goodness, things have moved a long way since then. I agree with the noble Lord that if scrutiny is to be good, it needs to be much more constructive than simply looking back and commenting on decisions and actions that have been taken.

I do not think that what underlies these amendments needs in any way threaten the development of scrutiny. Further, I should declare an interest as a member of the advisory board at the Centre for Public Scrutiny. It will be interesting to see how the art of scrutiny develops further under another mix of arrangements across authorities.

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[Lord Jenkin of Roding]

My Lords, noble Lords may recollect that on several occasions during the Committee stage I was moved to criticise and protest about the mass of detailed prescriptive measures in the Bill, with the prospect of more to come through the battery of regulations that are foreshadowed in the legislation. My main point can be stated very simply: at the centre of Part 1 is the welcome provision that gives local authorities a general power of competence. Whereas in the past they could do only what statute allowed them to do, now they will have the same competence as individuals. In other words, at a stroke local authorities can cast off the shackles of government control. Yet at almost every point in this Bill, in every part and schedule, there are pages and pages of directions going into the minutest detail of how local authorities must implement these provisions.

As I pondered this my mind went back to what is, I am afraid, another anecdote in the form of an old political joke. A communist orator was haranguing the crowd saying, “It’s the rich who have their dinners at the Ritz hotel and the poor have to go to Smokey Joe’s. But when the red revolution comes and you get your freedom, it will be the rich who will have to go to Smokey Joe’s and you’ll be able to eat your dinner in the Ritz”. The little man at the back put up his hand and said, “I’d rather go to Smokey Joe’s”. The orator said, “When the red revolution comes and you get your freedom, you’ll damn well do what you’re told”.

The local authorities associations have made it very clear that they dislike being told how to do things. They dislike being told how to write letters, how to conduct referendums, how to co-operate and much else besides. I voiced their dissatisfaction and I was not alone. In all parts of the House, noble Lords supported my protests, and at times I became quite heated.

My noble friend Lord Tope, who is very experienced in these matters, noted that there has been a culture in Whitehall whereby they feel they have a duty to tell local authorities how to carry out their functions. However, he also noted that the local authorities themselves have absorbed that culture to the extent that they now expect to be told how to do things. My noble friend on the Front Bench has already indicated some movement in this and we are very grateful.

Before the Recess, I sought out my right honourable friend Greg Clark, the Minister of State in charge of the Bill. He agreed to meet me with a deputation from the Local Government Association and London Councils. At that meeting, which happened a few days after the start of the Recess, we set out our concerns and provided him with a long list of detailed provisions, which we believed could be dropped without affecting the purposes of the Bill.

After discussion, the Minister agreed. He agreed that his officials and those of the associations should get together during the Recess with a view to agreeing what might be dropped. Last week I was sent a long letter from the department setting out the amendments whose purpose Ministers were minded to accept, others which they were reluctant to accept, and some where decisions still have to be made. It was not everything but it is a very good start. I expressed my pleasure both to the officials and to the Minister.

The House has already welcomed Amendments 120 to 131 removing the powers to make regulations in respect to area committees and conditions which apply to the creation of such committees. We have also just accepted Amendments 132 to 150, substantially simplifying the scrutiny provisions, and these certainly stemmed from the discussions.

I am told other amendments will be tabled about the frequency and conduct of referendums. We will also come to the amendments on the right to challenge, Amendments 197E to 197G, where there is to be guidance instead of statutory prescription. There are also amendments on the community right to buy, Amendments 203, 203B and 203C.

These are a very welcome start and there is the prospect of more to come, especially on planning. Some of my amendments in the group, led by Amendment 155, have been dealt with, and I warmly welcome the government amendments in the group.

I end by picking out two of my amendments—it would be tedious to go through the lot—that have not been accepted so far. They are Amendments 158 and 159 on referendums, and Amendment 204 on the duty to co-operate. On referendums, there are two distinct issues: first, when and in what circumstances a referendum should be held; and, secondly, how they should be conducted. On the first issue, it would seem sensible to deal with that on each occasion that it comes up in the Bill, because they may differ from case to case. On the second issue, however, it really is necessary to stop telling local authorities how to suck eggs. They have great experience in running referendums and they should be trusted to do that properly, not have to be told how to do it.

Amendment 204 refers to the duty to co-operate set out in Clause 98. I really do not believe that local authorities need to be told how to co-operate. They, after all, have been co-operating with each other for a very long time and it is an impertinence to have to spell out in the Bill how they are supposed to do it. They are well accustomed to doing it and they should be trusted. I hope that my noble friend may be able to comment on both the referendums and the duty to co-operate.

I referred at the beginning of my speech to the culture—perhaps it might be better called a mindset—whereby Whitehall feels that it has to tell local authorities how to conduct their functions, while the local authorities expect to be told. If the general power of competence is to mean anything in practice, that culture—that mindset—has to be changed. The best way to start changing it is to stop doing it. I beg to move.

[Baroness Hamwee]

My Lords, unless the Minister is about to move the government amendments—I was wondering whether she was going to do that—perhaps I should keep going.

[Baroness Hanham]

Perhaps I will move those amendments—that is, I will speak to them. I am constantly being reminded about that, and quite rightly too. They are Amendments 156, 157 and 162. In Committee, as the noble Lord, Lord Jenkin, has reiterated, there are a number of provisions in Schedule 2 to the Bill which noble Lords considered were either overly prescriptive or unnecessary. While I have not been able to act on all of their concerns, Amendments 156 and 157 remove provisions in relation to the actions a local authority must take following a referendum about a change in governance model. I hope that that will be another of the deregulatory ways that we deal with today.

In doing so, these amendments put beyond any doubt that local authorities must act in accordance with the wishes of local people as expressed at a referendum. In light of the Delegated Powers and Regulatory Reform Committee’s comments we have also tabled Amendment 162, which provides that regulations made under Section 9MG in relation to the conduct of governance referendums will be subject to the affirmative resolution procedure.

[Baroness Hamwee]

My Lords, I was intending to comment on only one of the noble Lord’s amendments. I agree very much with the thrust of his comments but I would simply take up with him whether at this point we should be dealing with Clause 98. I am concerned about applying the general points that he has made at this stage to a very contentious part of the Bill. As he said, Amendment 204 would delete the provision for statutory guidance about the duty to co-operate, which is, in full, a:

“Duty to co-operate in relation to planning of sustainable development”.

One would have had to be in a very faraway country to be unaware of how contentious “sustainable development” and its application have become—interestingly, led by the Daily Telegraph—over the last two or three weeks.

I find it difficult to make a judgment about the need or otherwise and the desirability or otherwise of statutory guidance without debating the substantive duty. I have always had a concern about legislation purporting to tell local authorities how to co-operate—I share that very much with my noble friend—but without discussing the whole substantive provision, I find it difficult to come to a view as to whether or not statutory guidance is desirable. It is very difficult to take this proposition along with the others and, as I say, I very much agree with the points that he has made where they arise in other parts of the Bill.

[Lord McKenzie of Luton]

My Lords, I follow the noble Baroness, Lady Hamwee, on this point. Your Lordships’ House should give the noble Lord, Lord Jenkin, great thanks for the diligence with which he has pursued this issue right from the start of the Bill. He has been consistent in challenging the unnecessary powers that have littered the Bill and, going through the list before us tonight, I do not have any problem with the amendments, with the possible exception of Amendment 204. As the noble Baroness says, planning has become, almost overnight, incredibly contentious. We are not now going to reach the substantive provisions until October and I think that it would be better to view them in the round and as a whole. It would be quite difficult to see the lack of guidance somewhere in the system relating to the duty to co-operate. It is a departure and a new issue in planning. It is the replacement of regional planning. It is very important that we get it right.

I accept the noble Lord’s point that when an individual authority is going to consult it does not need guidance on that. Local authorities are well experienced in doing that, but this is guidance in the context of some new planning requirements and it would be premature to do away with the prospect of government having some guidance on the generality; not just bilateral consultations and relationships between authorities, but multilaterally and where the sub-region fits. The guidance that might flow from this could be really helpful in that regard.

I do not wish to detract from the fantastic job the noble Lord has done in leading the charge on these issues. That is the only issue I take with the list that is before us.

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[Baroness Hamwee]

My Lords, the word that I stumbled over when I first read Clause 14(2) was “just”. Not justice, which of course is important, but “just because”, which is not the sort of language that one normally sees in legislation. However, since the noble Lord has spoken, and having heard what he said, which I found extremely helpful, the word that now concerns me is “might”. Clause 14(2)(a) refers to a view that a decision-maker,

“took, or would or might take”.

How does “might” stand in the context of the distinction between predisposition and predetermination? I am far more confused than I was 10 minutes ago.

[Lord Beecham]

My Lords, I support the amendments tabled by my noble friend Lord McKenzie—especially the second amendment in the group. We are entering difficult territory, as outlined clearly by the noble Lord, Lord Pannick. At the very least, given the potential difficulties that might arise from a change, there ought to be a proper, evidence-based review, and three years should be sufficient for that. There are clear dangers in the way that the clause is drafted, and we cannot overlook the political background to its production. Its provenance lies in political debate, with those on one side claiming that it is improper to prevent councillors campaigning on issues and then voting on them. Of course, that is perfectly legitimate in the context of any council policy such as education, social care or whatever: but not in a situation that is quasi-judicial, which is how planning and licensing decisions should be taken.

I am afraid that the rather loose terminology deployed on political platforms colours one’s view of the potential impact of the proposal in Clause 14. It also raises the possibility of undue pressure being applied to elected members who will no longer have the defence that, “I must not indicate how I am going to vote because I am obliged to look at all sides of the case”. That might be regarded as being swept away. I am not saying that it is the intention of the clause to sweep it away, but that inference might be drawn by those seeking to solicit the support of members. One must not assume that that solicitation will always be on the part of electors. It may be on the part of those on the other side of the proposal: namely, the developers. It is invidious to place members in that position. They need the protection of the kind of approach that the noble Lord, Lord Pannick, has enunciated.

I hope that the Minister will look again at this, particularly at Amendment 165A, and whether that can be deployed to mitigate the impact of Clause 14. In any event, however, I hope he would accept, or just consider accepting, Amendment 165B, which would allow the situation to be reviewed in this rather delicate area on the basis of evidence rather than surmise. We are looking, at this late hour, for some commitment to think again and talk again about this in order to avoid potential future difficulties for elected members and officers of the council as well. It would also provide clarity for public applicants and objectors alike.

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[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.