Enterprise and Regulatory Reform Bill

Debate between Lord Pannick and Lord McKenzie of Luton

Monday 22nd April 2013 Lords Chamber

[Lord Pannick]

My Lords, I supported the noble Baroness, Lady Turner of Camden, and the noble and learned Lord, Lord Hardie, on Report, and I continue to do so. The Minister said earlier in this debate that we are considering cases where the employer has done nothing wrong. With great respect, that is a fundamental misunderstanding. The employer is liable only if the claimant can prove a breach of health and safety legislation. The employer is liable only if the claimant can prove that the breach has caused the injury. To require the employee also to prove negligence would impose an unreasonable burden. I take the point made by the noble Lord, Lord Faulks, that it is not an impossible burden. However, I suggest that it is an unreasonable burden because the relevant information will normally be information in the knowledge of the employer, and the costs and delay of the litigation—a point which the noble Lord, Lord Faulks, did not mention—would surely be disproportionate in all these circumstances to any legitimate interest, especially when the reality is that the employer can, and normally does, have liability insurance. For those brief reasons I will support the noble and learned Lord, Lord Hardie, should he divide the House this evening.

[Lord McKenzie of Luton]

My Lords, we remain steadfast in our opposition to the Government’s position, and fully support the case led by the noble and learned Lord, Lord Hardie, and spoken to in support by my noble friend Lady Turner and the noble Lord, Lord Pannick. We are dismayed that parliamentary process has allowed so little time for consideration of this matter in the House of Commons and that more than a century—in fact, nearly 150 years—of settled law is being overturned on the basis of such brief deliberation.

The arguments to remove Clause 61 from this Bill have not of course changed in the few weeks since we last debated the matter. Nor have the serious consequences which will ensue should we not carry the day. Removal of the existing right of an employee to rely on a breach of health and safety legislation represents a fundamental shift, and one which is to the detriment of employees.

We heard before, and again today, that having to prove negligence will provide a more difficult route to getting redress. The burden of proof will shift to employees, or to the family in the case of a fatality at work, there will be a requirement for more evidence-gathering and investigation, and the incurring of greater costs. In that respect there will be no lessening of the regulatory burden on employers. This change goes well beyond the issue of strict liability which the Government’s own impact assessment accepts is likely to give rise to only a small number of claims.

The issue of a near impossible burden referred to by the noble Lord, Lord Faulks, I think in our previous debate, was not applied generally but specifically to those circumstances where strict liability has hitherto been in force.

Localism Bill

Debate between Lord Pannick and Lord McKenzie of Luton

Monday 12th September 2011 Lords Chamber

[Lord McKenzie of Luton]

My Lords, I shall speak also to Amendment 165B. The purpose of Amendment 165A is to clarify whether the provisions of Clause 14 change the basic position that, in exercising discretion in making decisions, a councillor must not have a closed mind. This is especially relevant to, but not limited to, matters of planning. It is understood that the purpose of Clause 14 is to seek to clarify the position of councillors who, despite guidance from the Standards Board—which will now disappear—have considered themselves constrained in offering views on matters for fear of invalidating a decision or themselves being subject to challenge.

There has been a series of legal decisions which have sought to draw the line between legitimate predisposition and unlawful predetermination. The courts have accepted that councillors are likely to have, and indeed are entitled to have, a disposition in favour of a particular decision. An open mind is not an empty mind; it is ajar. Contrast that predisposition with circumstances where a person has closed their mind to all considerations other than an already held view—predetermination. The courts have recognised two types of predetermination: actual predetermination and apparent predetermination. The latter, apparent predetermination, is where a fair-minded and well informed observer, looking objectively at all circumstances, considers that there is a real risk that one or more of the decision-makers has refused even to consider a relevant argument. These matters have previously been commented on also by the Standards Board for England, including how the code might be impacted. Obviously, this all falls by the wayside subject to the outcomes of deliberations that we may have on this issue in due course.

When we debated this in Committee, we took it that Clause 14 was not intended to change the law and that decision-makers remain required to maintain an open mind in considering views relevant to a decision. Perhaps the Minister could confirm that that is the Government’s position. This is what Amendment 165A seeks to put on the face of the Bill. Assuming we are at one on this issue, what is the position on apparent predetermination? It would seem that Clause 14 changes the law because it precludes a fair-minded, well informed observer from looking objectively at all the circumstances. So can the Minister say what type of evidence would be taken into account when determining whether a person had a closed mind?

We do not oppose provisions which seek to enshrine in primary legislation the protections for councillors associated with predisposition—if the noble Lord, Lord Newton, were here, I would say that we accept the Lady Newton test in that regard—and we remain unconvinced that in doing so the Government have not opened the door to undermining the protections of probity long afforded by the concept of predetermination. Of course, this is happening when the Standards Board for England is disappearing from the scene.

In view of the uncertainty created by what is happening, Amendment 16 simply calls for the Secretary of State to review the consequences of this clause and to report to Parliament within three years. I beg to move.

[Lord Pannick]

My Lords, I have added my name to Amendment 165A. I share the concerns that have been expressed by the noble Lord, Lord McKenzie of Luton. This is not the ideal time of day to discuss the intricacies of local government law, but there are three points that I want to make.

First, existing case law makes it very clear, and rightly so, that in the context of local government, a predisposition to decide an issue in a particular way is lawful. There is nothing unlawful in a councillor saying to constituents that he or she agrees with or disagrees with a planning proposal, and is minded to support it, or indeed oppose it, in the planning committee, provided that the councillor adds that he cannot commit himself and that he must consider all the points that are raised before he decides how to vote.

What is unlawful is for the councillor to have or give the appearance of having a closed mind. That is predetermination of the matter, such that he or she will not listen to the arguments that are advanced in favour of or against the planning or other proposal put before the council. The Court of Appeal set out these basic principles very clearly indeed, in 2008, in the case of the Queen on the application of Lewis v Redcar and Cleveland Borough Council [2009], Volume 1 of the Weekly Law Reports, 83.

Lord Justice Rix stated at paragraph 94 to 96—and the other two judges adopted the same approach—that local councillors who are deciding a planning matter, or any other matter, are not required to be impartial in the sense required of a judge. The law as it is recognises that local councillors have political allegiances, that they have politics, and that their politics involve the adoption of policies. There is nothing wrong with that, and it is highly desirable that it remain the case, so long as there is no closing of the mind before the planning or other committee decision and the vote. The law strikes the right balance.

Secondly, although I think the law has the balance correct at the moment, I have no objection to legislation setting out this position and clarifying the matter, removing any doubt. However, it is vital that the legislation must get the balance right. My concern is that Clause 14 as currently drafted does not make it clear that although predisposition is permissible—indeed, may be desirable—predetermination is not permissible. Clause 14(2) is too broadly drafted.

Suppose the councillor says publicly, a month before a controversial planning application is considered by the planning committee, “I am going to vote against the proposal for the bail hostel. I was elected on a platform to oppose this planning development, and I am simply not interested in the arguments that may be advanced in favour of this proposal.” That would be a clear case of predetermination. Clause 14(2) would appear to make such a statement irrelevant in law. If we enact this legislation in this current form, such statements would be said to be, for the purposes of Clause 14(2)(a), something previously done by the decision-maker which,

“directly or indirectly indicated what view the decision-maker took, or would or might take, in relation to a matter”.

I hope that Clause 14 is not intended to exclude reliance in court on such a statement as evidence of impermissible predetermination. If it were intended to have that effect, it would be a substantial change in existing law and would be very much a change for the worse, because it would allow councillors to predetermine issues.

My third point, therefore, is that Clause 14 needs revision to tighten the language and avoid the ambiguity that I have indicated. There are various ways in which this could be done. One is by Amendment 165A. I hope very much that the Minister—I think that it is the noble Lord, Lord Taylor, who will be responding—will tell the House that he will take this matter away and will, with his officials, give further consideration to this important question before Third Reading.

--- Later in debate ---

[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.

[Lord Pannick]

Does the noble Lord accept that the Minister is undoubtedly right that the question of whether or not the councillor has a closed mind must be assessed as at the date when the council takes the decision? My concern—I ask whether it is his concern—is that it appears from the Minister’s observations that he is suggesting that anything that the councillor says at an earlier date, however extreme it may be, is irrelevant to the question of whether the councillor had a closed mind as at the date of the council decision. That seems to be the issue.

[Lord McKenzie of Luton]

Yes, I am grateful to the noble Lord. That is exactly my concern and I honestly do not think we have had clarification on that. Perhaps we can take this forward by other means. With the leave of the House, I beg leave to withdraw the amendment.