Localism Bill

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.