Localism Bill

Lord Taylor of Holbeach Excerpts

Monday 12th September 2011 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, perhaps we could reconsider government Amendment 152.

[Lord Tope]

I would be enormously grateful if the Minister could move the amendment that we have just welcomed, but my understanding is that she has withdrawn it.

--- Later in debate ---

[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.

[Lord Taylor of Holbeach]

Nobody will deny that this is a complex area. Previous position and predetermination can meld into a situation where drafting legislation can be difficult. I want to reassure noble Lords on what Clause 14 is about and what it is not about. The provision in the Bill does not have any effect on the legal effects of a local authority member being predetermined. The legal position is, and will remain, that a local authority member making a decision should have an open mind. Whatever he or she may have said about the way they were going to vote or whatever campaigns there were, we are in practical politics and we know that people will campaign on issues. The clear point of focus of any legislation and the law, currently and as a result of Clause 14, is that the decision should be made with an open mind.

I recognise that the noble Lord, Lord Pannick, is one of the most eminent lawyers in the House, and I say that knowing there are many eminent lawyers in this House. However, I hope he will agree—I think he does, along with the noble Lord, Lord McKenzie—that the courts have been very sensible in recognising that politicians hold views and there is nothing wrong with them holding views. The way we drafted these positions in Clause 14 is to make it clear to those less well versed in the law—and that is certainly true of the majority of us—that politicians are free to talk to the public about issues and free to campaign on important issues. It will ensure that, at the end of the day, prior indications of an opinion will not be treated as evidence of predetermination.

Perhaps I can reassure the noble Lord, Lord McKenzie, that the only evidence that can be presented to show that a person does not have an open mind is that which exists at the point of the decision-making process. Therefore, prior comments, commitments and pledges do not matter as long as the local authority member clearly listens to the evidence and makes his decision. It may accord with his prejudice or his predisposition, but any evidence that he has a closed mind can only be made at the point when he makes that decision and not at any point prior to that.

[Lord Pannick]

I am grateful to the Minister for giving way. Do I understand him to be saying that any prior statement is irrelevant to the question of whether the councillor had an open mind at the time of decision-making? If that is what the Minister is saying, the example that I gave in my contribution to this debate would be irrelevant even though, surely, it would be highly material to the question of whether at the time of the decision the councillor had an open mind.

[Lord Taylor of Holbeach]

The test is that the decision-making process is key and the councillor demonstrates the ability to listen to the argument and to vote accordingly at the time of the decision-making. That is the current position in law. There is no suggestion that because somebody has campaigned on an issue they should not be free. Indeed, I think the House would acknowledge that people who have campaigned on issues should be free, as long as they demonstrate at the point at which the decision is being made that they have been prepared to consider opposing arguments. The fact that they have voted in accordance with their previous position does not necessarily mean that they predetermined the decision. That is precisely what this clause is designed to make clear.

I hope noble Lords will understand that this is a genuine attempt to provide clarification on a difficult area. To the extent that Amendment 165B has been tabled to suggest that this should be subject to review, it is unnecessary because, as we stated in our published impact assessment for this provision, there will be a post-implementation review to ascertain its impact. It will provide all the information that noble Lords have been seeking through presenting Amendment 165B. I hope the noble Lord will withdraw the amendment.

[Lord McKenzie of Luton]

My Lords, I thank the Minister for his reply and the noble Lord, Lord Pannick, and my noble friend Lord Beecham for their support on this amendment. I am sorry if collectively—it is probably my fault—we have confused the noble Baroness, Lady Hamwee.

I do not think the Minister’s response has moved us forward on this issue. If anything, I think it has moved us backwards. We accept that these are complex issues and that drafting legislation is difficult. The noble Lord, Lord Pannick, said that he thought that the courts have hitherto got the balance about right. If the Minister thinks through the logic of what he has just said, if you can judge whether somebody had a closed mind only at the point of taking a decision, and if you have to leave aside and close your mind to all the previous evidence, even though any reasonable person might say that in particular circumstances it was abundantly clear that an individual had closed his mind, could that not leave the process open to massive abuse, because all somebody who wishes to thwart or support a decision needs to do is to behave sensibly and appropriately on the day at the point of the decision-making, even though he might have made his position absolutely clear before that? I am not a lawyer, although the noble Lord, Lord Pannick, certainly is, but it seems to me that the position he put in his example—that Clause 14(2) means that you have to exclude all that evidence when it comes to court, if that is where it arrives, and the Minister said that you do—must constitute a change in the law as it is at the moment. I do not think that the Government are in the right place. We are not trying to be difficult. This is not a party political issue, and I understand the Minister trying to get it right for councillors so that they are free of the fear that they may have been subject to to date, but I simply do not think that the Government are right. We are obviously not going to press Amendment 165A tonight, but I urge that we have the opportunity to have some discussion with officials between now and Third Reading—and I would welcome the input of other noble Lords, particularly the noble Lord, Lord Pannick—with the right to bring it back if necessary. There is a risk that we are changing the law.

[Lord Taylor of Holbeach]

Of course we are always happy to discuss matters further, but I wanted to make the Government’s position quite clear. The clarification in Clause 14 is designed to make clear that there is a point at which predetermination can be adjudged, and that is the point at which a decision is made. To present any other points as being the point at which predetermination exists obviously becomes extremely complicated because you get involved with statements that have been made before the decision was presented before the member concerned.

[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.