Localism Bill

My Lords, I have added my name to Amendment 165A. I share the concerns that have been expressed by the noble Lord, Lord McKenzie of Luton. This is not the ideal time of day to discuss the intricacies of local government law, but there are three points that I want to make. First, existing case law makes it very clear, and rightly so, that in the context of local government, a predisposition to decide an issue in a particular way is lawful. There is nothing unlawful in a councillor saying to constituents that he or she agrees with or disagrees with a planning proposal, and is minded to support it, or indeed oppose it, in the planning committee, provided that the councillor adds that he cannot commit himself and that he must consider all the points that are raised before he decides how to vote. What is unlawful is for the councillor to have or give the appearance of having a closed mind. That is predetermination of the matter, such that he or she will not listen to the arguments that are advanced in favour of or against the planning or other proposal put before the council. The Court of Appeal set out these basic principles very clearly indeed, in 2008, in the case of the Queen on the application of Lewis v Redcar and Cleveland Borough Council [2009], Volume 1 of the Weekly Law Reports, 83. Lord Justice Rix stated at paragraph 94 to 96—and the other two judges adopted the same approach—that local councillors who are deciding a planning matter, or any other matter, are not required to be impartial in the sense required of a judge. The law as it is recognises that local councillors have political allegiances, that they have politics, and that their politics involve the adoption of policies. There is nothing wrong with that, and it is highly desirable that it remain the case, so long as there is no closing of the mind before the planning or other committee decision and the vote. The law strikes the right balance. Secondly, although I think the law has the balance correct at the moment, I have no objection to legislation setting out this position and clarifying the matter, removing any doubt. However, it is vital that the legislation must get the balance right. My concern is that Clause 14 as currently drafted does not make it clear that although predisposition is permissible—indeed, may be desirable—predetermination is not permissible. Clause 14(2) is too broadly drafted. Suppose the councillor says publicly, a month before a controversial planning application is considered by the planning committee, ““I am going to vote against the proposal for the bail hostel. I was elected on a platform to oppose this planning development, and I am simply not interested in the arguments that may be advanced in favour of this proposal.”” That would be a clear case of predetermination. Clause 14(2) would appear to make such a statement irrelevant in law. If we enact this legislation in this current form, such statements would be said to be, for the purposes of Clause 14(2)(a), something previously done by the decision-maker which, "““directly or indirectly indicated what view the decision-maker took, or would or might take, in relation to a matter””." I hope that Clause 14 is not intended to exclude reliance in court on such a statement as evidence of impermissible predetermination. If it were intended to have that effect, it would be a substantial change in existing law and would be very much a change for the worse, because it would allow councillors to predetermine issues. My third point, therefore, is that Clause 14 needs revision to tighten the language and avoid the ambiguity that I have indicated. There are various ways in which this could be done. One is by Amendment 165A. I hope very much that the Minister—I think that it is the noble Lord, Lord Taylor, who will be responding—will tell the House that he will take this matter away and will, with his officials, give further consideration to this important question before Third Reading.