Localism Bill

My Lords, I am grateful to the noble Lords who have skilfully proposed this amendment, as it has given me the opportunity to research the issue for myself—with an open mind—and to provide further elucidation to the House. I hope that I can prevail upon the noble Lord, Lord Pannick, with his open mind. I think that there is general agreement on the mischief that Clause 25 seeks to address: that councillors and candidates are receiving overly cautious advice from a variety of sources. All noble Lords accept the need to engage with the electorate, and I agree entirely with the comment by the noble Lord, Lord Pannick, about the courts. The courts do not have a problem at all; it is the advice being given that is the mischief. I will give an example to show how far this culture has spread, not from local government but rather from advice issued by Friends of the Earth about the planning process. One would imagine that that organisation would be keen for the public to engage with councillors, not just to put their views to the councillor but to seek the councillor’s view. Yet the advice states that, "““councillors on the planning committee are not allowed to express their view until the decision is made””." When advice from expert campaigning groups such as Friends of the Earth is risk-averse, it is clearly time to act. My noble friend Lord Greaves also told us about different councils having different rules and the problems that that causes. In the light of the debate during previous stages, most noble Lords clearly have no difficulty with the difference between predisposition and predetermination but it may be helpful if I remind the House what predetermination is. Predetermination, which can be actual or apparent, is where a councillor’s mind is closed to the merits of any arguments which differ from their own about an issue on which they are making a decision, such as an application for planning permission. The councillor makes a decision on the issues without taking them all into account. I am obliged to the noble Lord, Lord Hart, for the time he has taken to explain carefully the problem to me in private. He described a situation where a bigoted person states publically, and with the protection of Clause 25, that he is strongly against some development. He is then on the committee that determines the application but says nothing, then votes against the development. The noble Lord, Lord Pannick, said much the same. The noble Lord, Lord Hart, is right that nothing can be done, but the same would apply if the councillor was covertly bigoted—that is, if he said nothing at any point but still voted against and always intended to, no matter what argument was put forwards. Perhaps he is racist and would never ever support an accommodation unit for asylum seekers. My own view, for what it is worth, is that in reality very few councillors operate with a closed mind. However, Clause 25 does not go as far as some noble Lords fear. Let us move on to the scenario laid out by the noble Lord, Lord Pannick, on Report. A 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 it””. The noble Lord, Lord Pannick, said that that would be a clear case of predetermination. I agree. Even if Clause 25 becomes effective, the councillor has gone far beyond expressing a view on the merits of the development in the light of what he knows at the time. However, I am sure that the noble Lord will agree that this does not preclude the councillor subsequently opening his mind, and what matters is the state or apparent state of his mind at the time he started to make the determination. Suppose the councillor is not so unwise as to say he was simply not interested in the arguments, perhaps even adding a suitable caveat about listening to the arguments before voting. He then votes against in committee after appearing to be fully engaged in considering the matter. There is no legal problem here. Due to what will be Section 25 of the Localism Act, just because he indicated his view it does not mean that he is predetermined—a point touched on by my noble friend Lady Hamwee. After the decision has been promulgated, an e-mail string that was concluded before the determination is the subject of an FOI request in connection with an unrelated matter. Our councillor was asked by a friendly official if he thought that the bail hostel would be approved. He wrote back, ““Don’t worry, it won’t happen””. On its own, it could be argued that this was merely a very unwise assessment of the merits of the application. Taken together with the public statement, a fair-minded person would surely conclude that apparent predetermination had taken place. I am sure that the noble Lord, Lord Pannick, if invited to, could construct a very strong case. It is important to understand that views indicated as being protected by Clause 25 can be taken into account when considering whether predetermination has taken place, but only in conjunction with some other evidence. The noble Lord, Lord Sewel, asked about the extent to which the clause strikes at the practice of party whipping. There have been cases where accusations of predetermination have arisen because a councillor has followed the party line. The effect of Clause 25 is that this could no longer be sustained unless there was some evidence at the point of decision-making that the councillor was not acting properly and not considering the arguments. When I first studied Clause 25, I correctly understood what it meant—in other words, what you could and could not do—straightaway. As amended, I cannot see that it would have the desired effect of encouraging engagement with the electorate. It took me, as well as my noble friend Lord Greaves, some time to understand it and, when I did, I realised that a councillor would not be able to express his view on a matter without any risk of predetermination. This would defeat the policy objective of facilitating full engagement with the electorate. With this explanation, I hope that the noble Lord will feel able to withdraw his amendment.