Localism Bill

My Lords, we have rightly just had a long debate about a major issue. In moving Amendment 88, I wish to speak also to Amendments 89, 90, 91, 92, 94, 95 and 96, with which it is grouped. Somebody who looked at them said to me that they were typical fiddly House of Lords amendments, by which I think they meant the kind of amendments that try to probe what is meant by the words set out in the Bill. We are now on Chapter 4 of Part 1, which is about predetermination. Predetermination is a doctrine that I understand is well established in common law—that people making decisions in a public capacity have to keep an open mind and not close their minds and fetter their discretion before they make those decisions. That principle is vital in the law courts. Within local government that doctrine has really taken off in the past 10 or 15 years. I was a member of a local authority until 1998, when I decided to retire and find something else to do with my life. Until then, it was not something that people paid a great deal of attention to. In planning decisions, the area where the rules on predetermination have really taken hold, if there was a proposal for a new supermarket, councillors were free to campaign about it and election campaigns could involve people expressing their views. It did not stop councillors taking part in decisions. When I went back to become a member of a local authority in 2004, the situation had substantially changed. I have been aware of that from discussions with people on local authorities since then. At that time, largely because of the decisions of the Local Government Ombudsman, particularly in planning applications, the concept of fettering one’s discretion had become a major factor. Councillors, particularly on planning committees, were warned that they must not express a view on an application before making a decision on it. On many authorities councillors were often told that they could not speak to objectors, residents or applicants—or, if they could, that they had to do so in an organised way in the presence of a planning officer. This whole doctrine has therefore taken over at least one major field of local government: planning. Over the years many of us have taken the view that this has not only fettered people’s discretion on planning applications but prevented the proper operation of local democracy. We have had ridiculous situations whereby, in one rural town in the West Midlands, candidates from our party campaigned during an election against the one big issue in the town, a major town centre development, but when they were elected to the council they were told that they could not take part in discussions on it, otherwise they risked being hauled up before the standards regime or even being taken to court. This provision is a welcome attempt by the Government to solve this problem and to put the weight back on the democratic side of the balance, at least as far as planning applications are concerned. That is not to say that people should not make the actual decisions in full knowledge of all the facts and having listened to all the arguments. They should be able to take a rational decision. However, it is ridiculous that on some of the most important proposals coming forward for decision in communities, councillors are prevented from expressing a view, and candidates at elections run the risk of finding that they cannot take part in those decisions if they had expressed a view during an election in which residents, not unreasonably, wanted to know what the candidates thought about the proposals and may well have voted on that basis. The provision in the Bill is very welcome. However, the more that I read the details, the less I understand what some of it means. Because this whole area has been tied up in legal red tape, the wording has to be absolutely right. Amendment 88 probes why the words ““to any extent”” are in subsection (1)(b), and whether that weakens the provision. Either you have a closed mind or you do not have a closed mind. Of course, you might have a closed mind at 10 am, open it again at 11 am, and close it again at noon, but I do not understand what a ““closed mind (to any extent)”” actually means. It would be helpful to have some clear understanding of that. I am not sure that I shall receive satisfactory answers on all these amendments. I may get wonderful answers this afternoon, but perhaps these are matters that require a clear explanation, perhaps in writing. Amendment 89 asks what is meant by, "““or to have appeared to have had””" a closed mind. The question, as I understand it, is whether you had a closed mind. I do not understand why ““appeared to have had”” is relevant. Either a person had a closed mind or they did not have a closed mind on the facts of the case. I question what those words mean and why they are there. I turn to Amendment 90. Clause 14(2) says: "““A decision-maker is not to be taken to have had, or to have appeared to have had, a closed mind when making the decision just because—""(a) the decision-maker had previously done anything that directly or indirectly indicated what view the decision-maker took””," et cetera. I do not understand why it says ““just””. It implies that other reasons or causes should be taken into account, and that therefore there may be circumstances where having a closed mind in combination with other factors may mean that predetermination still applies. It is fiddly legalistic wording but the word ““just”” seems a little out of place. It is an unusual word to find in legislation and it needs explaining. Amendment 91 is rather easier. The wording says, "““the decision-maker had previously done anything that directly or indirectly indicated what view the decision-maker took””." My question is, does the word ““done”” encompass and include saying something? The amendment would put ““done or said””. I am probing for clarity. Amendment 92 questions subsection (3), which is curious. Subsection (3) says that subsection (2), "““applies in relation to a decision-maker only if that decision-maker—""(a) is a member … or (b) is a co-opted member of that authority””." That is okay but it goes on to say that, "““‘co-opted member’ … means a person who is not a member of the authority but who—""(a) is a member of any committee or sub-committee of the authority””—" that is straightforward—or, "““(b) is a member of, and represents the authority on, any joint committee or joint sub-committee of the authority, and who is entitled to vote on any question””." That is fairly straightforward but it misses out people who are representing the authority on other bodies. Nowadays, with all the partnerships, joint committees, joint boards and everything else, a lot of what councils do is sending representatives to other authorities. If it is a councillor who is going, there is no problem; I assume that they are still covered by this legislation. However, if they are not a councillor—they may be a representative who is not a councillor or an officer of the council who is not a councillor—are they to be regarded as co-opted representatives and are they covered by this legislation? Should the legislation, in addition to what it says here, refer to representatives on joint boards, partnerships and indeed representatives in companies? Councils increasingly are forming joint companies of various sorts with other bodies, other councils; what is the position of people who are representatives in those companies? Amendments 95 and 96 refer specifically to the functions of an officer. There is some curious wording that I am proposing to take out, for a probing purpose. It refers to, "““functions of an office of the authority … including decisions made in the discharge of any of those functions otherwise than by the person to whom the function was originally given””." It is not clear whether these rules about predetermination apply to a council officer who is clearly representing the council in a joint committee or outside body, or whatever. It would be helpful to have some clarification on that. The references here to officers are also interesting. It is absolutely clear that in the area of planning, for example, planning officers have negotiations and discussions with applicants in which they give a very clear view on what they think the position is. There will be a pre-application discussion with a planning officer or there will be one after the application has been put in, and the planning officer will say, ““Well I am going to recommend that this is turned down or passed””, or he may say, ““I have delegated power and, unless you change it in this way and that way, we are going to turn it down””. That is clearly predetermination. A decision is clearly being taken by an officer of the council and not a member, so how does that apply here? In future, will the regime be different for officers and members or is it the view that this chapter needs to apply only to members and people acting in a member-type capacity and that it does not have to apply to officers at all? I have put these amendments forward in the hope that I will at least understand the position at the end. I take the very simplistic view that if I read legislation and cannot understand it, other people may be in the same position, and this is an area where we have to be absolutely clear. I beg to move.