Localism Bill

My Lords, I rise to speak to our amendment in this group, Amendment 96ZA, which calls for a review and report on the operation of the section and is framed really as a probing amendment. I support the probing that has been undertaken by the noble Lord, Lord Greaves, because we are seeking to understand how much difference this provision will make to the status quo. I say to the noble Lord, Lord Newton, that his exposition of what he believes the current arrangement to be is not the full position, as I understand it. That is my understanding from a non-legal background, but I will try to come on to it and explain that point. Views have been expressed to me that this clause provides a slippery slope that will potentially undermine the integrity of decision-making, especially on planning decisions, and will be a charter to allow bias. Others welcome the clause, as we have heard today, and consider that perhaps it does not go far enough, with some confusion around the term ““closed mind””. In order to understand it, I have tried to set down a baseline to judge whether it has moved us on from the current position. Perhaps the Minister will take the opportunity to explain what this intended change will mean in practice. As I understand it, the courts currently recognise two types of predetermination: actual predetermination and apparent predetermination—the latter is why the noble Lord, Lord Greaves, is pursuing the point about ““to have appeared to have had””. Actual predetermination is where, "““a person has closed their mind to all considerations other than and already held view””." That means that the exercise of a discretionary power where one or more of the decision-makers does not in fact exercise the discretion at all is unlawful as an abuse of that discretion. Apparent predetermination is where, "““the fair minded and well-informed observer, looking objectively at all the circumstances, considers that there is a real risk that one or more of the decision makers has refused even to consider a relevant argument or would refuse to consider a new argument””." However, predetermination of course has to be distinguished from predisposition, where a councillor may hold a view for or against a particular development, say, but has an open mind as to the merits of an argument before making a final decision. There is a difference between predetermination and predisposition. The courts, as I understand it, have moved towards a more pragmatic approach in recent years. The Standards Board of England summarised the position in a rather helpful way—I think we will miss that body—so perhaps I can just read what it says are the practicalities of local government from the case law and what has happened to date. The Standards Board says: "““The courts have accepted that these practicalities mean that the fair minded and informed observer accepts that … Manifesto commitments and policy statements which are consistent with a preparedness to consider and weigh relevant factors when reaching the final decision, are examples of legitimate predisposition not predetermination … The fact that the member concerned has received relevant training and has agreed to be bound by a Code of Conduct is a consideration to which some weight can properly be attached when determining an issue of apparent predetermination … Previously expressed views on matters which arise for decision in the ordinary run of events are routine and councillors can be trusted, whatever their previously expressed views, to approach decision making with an open mind … To suspect predetermination because all members of a single political group have voted for it is an unwarranted interference with the democratic process … Councillors are likely to have and are entitled to have, a disposition in favour of particular decisions. An open mind is not an empty mind but it is ajar””." To reinforce that, perhaps I might read an extract from a judgment of Mr Justice Collins—a pragmatic judgment, so described—where he said: "““In principle, councillors must in making decisions consider all relevant matters and approach their task with no preconceptions. But they are entitled to have regard to and apply policies in which they believe, particularly if those policies have been part of their manifestos. The present regime believed that the development … was wrong and they had made it clear that that was their approach. In those circumstances, they were entitled to consider whether the development could lawfully be prevented. The fact that a particular policy is included in a manifesto does not mean that it must be implemented””." I guess that there is some comfort for some in that. To try and see where this is heading us, can the Minister say a little more about how this provision will work in practice? In particular if, as a matter of fact, an individual had a closed mind at the point of decision-making would that, as now, potentially invalidate the decision? If it is not possible, because of subsection (2)(a), to look to previous actions or utterances about the upcoming decision—that is, utterances and actions right up to the point of decision-making itself—what type of evidence would be needed to sustain a challenge of predetermination? Actions or opinions at the point of decision-making presumably do not help because that is, effectively, when everyone’s mind becomes closed on the decision. Hitherto, issues of predetermination have not only been about decisions being lawful or unlawful. They have potentially engaged the code of conduct and the ombudsman, in that unlawful decision-making could give rise to maladministration and may give rise to personal and prejudicial interest. Authorities are to be encouraged under the Bill to adopt voluntary codes of conduct in future. What advice would the Minister give in the light of Clause 14? Does it effectively change anything? What we are dealing with here is seen in other aspects of legislation—health and safety springs to mind—where people's perception of the legal position somehow drives unnecessarily restrictive and risk-averse behaviour. I remain genuinely unclear on how this clause has changed the status quo. We are entitled to have clarity on that point but if the import of this clause is to say that it no longer matters if you have a closed mind when you make these decisions, that is a quite significant change from where we are and one that should give us some cause for concern.