Localism Bill

I am pleased that we have been able to have this interesting debate. As the noble Lord, Lord McKenzie, has said, both case law and the Standards Boards have moved on this issue, but there has been a considerable degree of anxiety about it in local government service areas, as my noble friend Lord Newton said. I think the Committee will agree that that has not been in the interests of local democracy. That is why Clause 14 forms such an important part of this Bill and why we are bringing it forward, so I welcome the opportunity provided by this debate. My noble friend Lord Greaves has produced, if I may say so, a typical set of House of Lords probes, and I accept totally what he is seeking to do. I think it is the wish of the Committee that I should go through the amendments that he has tabled and make it clear what the particular wording means and why we consider it important that these little nuances are brought in. I say to the noble Baroness, Lady Whitaker, that nothing in this clause stops proper decision-making. Indeed, nothing in the provisions means that decisions are not going to be taken properly, having regard to all relevant considerations. On Gypsy and Traveller sites and the issues to which she referred specifically, I assure her that local authorities operate under fairly firm statutory guidance on the provision of these matters. Any debate about this matter would have to be conducted in a proper fashion. In the end, councillors make decisions within that framework. We know that some people hold quite strong views on such issues. We accept that. In a democracy, we have to accept that people come with strong views. Whether they come with a closed mind is a different issue altogether. I will come back to the comments made by the noble Lord, Lord McKenzie, but it might help if I first go through the amendments. Amendment 88 removes ““(to any extent)””. We believe that by putting in ““to any extent”” we bring clarity to the issue. We are seeking to give councillors clarity that they should be fully entitled to the freedom to campaign on issues that are important to their local communities. There should be no suggestion in the drafting of this provision that there are degrees of having a closed mind that need to be taken into account when deciding whether this provision applies. That is why that phrase is in the clause. It is to make it absolutely clear that there is no degree of a closed mind that might be the subject of predetermination. If this amendment were accepted, the position on predetermination would be less clear for elected members and the public, which would defeat the whole purpose of this clause, which is to provide clarification on the current position. Amendment 89 is an unnecessary drafting change. The phrase we are using here is taken from previous case law and provides clarity that a councillor is not to appear to have had a closed mind if they had previously campaigned on an issue. The fact that they may have campaigned on an issue does not necessarily mean that they are providing evidence that they appear to have a closed mind. This drafting seeks to provide clarity for councillors—we want them to be sure that they are doing the right thing, and we would all agree that councillors want to do the right thing—as well as judges and the courts. Indeed, the reason this is in the Bill is to provide some statutory law where so much has been dependent on case law. On Amendment 90, the word ““just”” in this sentence indicates more clearly the function the provision is performing, which is excluding certain conditions from the judgment to be made about whether someone had a closed mind. Read literally, without the word ““just”” the sentence could mean that any decision-maker doing something that indicates the view that they will take is automatically considered not to have a closed mind, so the inclusion of the word ““just”” avoids the potential for this misinterpretation, which would lead to a result that we do not want. The word ““just”” therefore defines the matter more clearly. Amendment 91 would narrow the range of councillors’ activities that we are seeking to ensure cannot lead to accusations of a councillor having a closed mind. Our current drafting makes it clear that if a decision-maker had previously ““done anything”” that indicated what view they took on an issue, they would not as a result be considered to have a closed mind. I reassure my noble friend that we fully intend the phrase ““done anything”” to include anything that a member may have said, written, or perhaps even held aloft on a placard. The amendment is therefore unnecessary. On Amendments 92, 95 and 96, the legislation has been written to apply to elected, co-opted and other members of councils. There is no need for the provisions to be extended to paid officers in local councils. I assure my noble friend that separate rules are in place for dealing with officer bias in decision-making. This clause is not designed to address officer bias. The definition referred to in Amendments 95 and 96 of the type of decisions covered by these provisions does, however, need to include this reference to functions of an officer of the authority, because certain officer decisions are exercised by elected or co-opted members of the council for technical reasons; some of the functions carried out by elected mayors, the chairman of an authority, and leader of an executive are regarded as functions of officers of the authority. On Amendment 94, we do not accept that this distinction should be made between the role of a co-opted member on a committee of the authority and the role of a co-opted member on a joint committee. Co-opted members of a committee of an authority would be free to express a view or campaign on an issue without being at risk of being unfairly accused of predetermination, but co-opted members of a joint committee would not. There are certainly instances in which co-opted members can sit on joint committees, and there is no reason to suppose that they will be any less capable of reaching a fair decision—something that lies at the heart of all of this—when sitting on a single-authority committee. Amendment 96ZA makes a perfectly reasonable suggestion, but I refer noble Lords to our published impact assessment of these clauses. The impact assessment states that there will be a full policy-implementation review of the whole Localism Bill, including the policies on predetermination. That will provide all the information that I believe the noble Lord is looking for in this amendment, so I hope that when the time comes the noble Lord will feel able to withdraw his amendment. The noble Lord, Lord McKenzie, asked whether, if as a matter of fact a councillor had a closed mind, the councillor could participate in a decision, what evidence would be used to determine that he had a closed mind and how this would be affected by the proposal in Clause 14. If a councillor is actually biased, he cannot participate in a decision; evidence of a closed mind could be that he has declared that he has a closed mind or that he refuses to listen to any new arguments. In reality, if a councillor says that he is not prepared to listen to any arguments and is self-evidently not prepared to do his duty by doing so, as we would all expect local government to do in a democracy, he would self-evidently be saying that he had a closed mind.