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Planning System (Local Councillors)
1.30 pm
Steve Webb (Northavon) (LD): It is good to have the opportunity this afternoon to raise a subject that is prompted by an individual constituency case, but is of much wider interest to all those involved in local government. To put the matter in context, one of my concerns is that many local councillors feel increasingly powerless. Even if they have been on the council for some time, there are various background trends that make individual local councillors feel that they have less power and influence than they once had.
I suspect that there is a general trend among central Governments of all parties to want to take powers from local government and to constrain what local councillors can do. The move to a cabinet system of local government, which we have in south Gloucestershire, is great for those in the cabinet, but many back-bench councillors feel that they have very little say and involvement—that they are lobby fodder and somewhat peripheral to what is going on.
The one thing that councillors can be, and seek to be, and often get elected to be, is a champion for their community. Planning is one area in which they can try to exercise that function. It is important to say at the outset that it is proper and right for a local councillor to try to influence a planning process on behalf of the people he or she represents. As the Nolan Committee's third report says, at paragraph 288:
"It is essential for the proper operation of the planning system that local concerns are adequately ventilated. The most effective and suitable way that this can be done is via the local elected representatives, the councillors themselves."
I am sure that the Minister agrees with that.
The question then arises whether that is what is happening, or whether the genuine, legitimate concerns to ensure that planning is done properly have been taken too far and constrained the legitimate democratic acts of local councillors in their attempts to represent their own community. The latter is the case in at least one respect—the consequences, which may not have been intended by the drafters, of the Local Government Act 2000 for the way in which councillors are involved in planning decisions.
The example that I want to give—I shall give the details of a particular case in a moment—is of a councillor who is on a planning committee when a planning application is submitted that relates to their ward. The councillor to whom I shall refer later happened to be the chair of the planning committee, although that is not particularly relevant. Under the 2000 Act, in practice councillors have to make a choice. They can be on the planning committee and cast their vote, but can express no real opinion throughout the entire planning application process; they must sit as sober as a judge when the arguments are presented at the meeting, weigh them up, and come to their so-called independent decision. Alternatively, they can say, "To hell with that—I know exactly what I think about this application and I know what my constituents think about it. No way am I going to keep my mouth shut for the next three, six or nine months. I am going to speak out, knowing that I then cannot vote and cannot be part of the discussions on that application." In the jargon that is called fettering discretion.
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Immediately, that becomes a problem; I have come across councillors who have been vilified for sitting on the fence. I am sure that the Minister has also come across that. If a councillor is on the planning committee and people in his or her ward say, "This is a terrible application; it would be dreadful for local people", the councillor has to say, "I cannot say anything." Technically, they can say, "Well yes, I have concerns about this, but obviously I am not going to make my decision until the meeting", but if there is any sniff that they have made their mind up beforehand, the applicant can appeal, can go to the Standards Board, or can go to the local government ombudsman. Councillors are therefore incredibly nervous about expressing an opinion. That leads councillors to be vilified—I have seen it happen. Also, bizarrely, it leads constituents to go to the opposition party—whichever party it might be—because its councillors are under no such constraint and will gladly slag off the planning application. It is a strange situation, in which the person whom the people elected to represent them cannot speak, but the person whom they did not elect can speak. That does not seem right.
However, it gets worse. If a councillor lives in the ward affected by the planning application, the rules say that if that councillor has a personal and prejudicial interest, he or she cannot even speak. Not only can they not vote, or be part of the discussion, they cannot even speak. In other words, the councillor has fewer rights to come along and say their piece than a citizen in their ward.
What is a personal and prejudicial interest? Under the local authorities' code of conduct 2001, it is defined as follows
"a member with a personal interest in a matter also has a prejudicial interest in that matter if the interest is one which a member of the public with knowledge of the relevant facts would reasonably regard as so significant that it is likely to prejudice the member's judgement of the public interest."
Those rules are being applied too tightly; the judgment has to be that the application clouds their judgment so much that they can no longer discern the difference between their interests and the public interest, which may, of course, completely coincide.
It is not just me who says that the pendulum of prohibition has swung too far, so that it is a kind of gagging order on local councillors. Earlier this year, the Committee on Standards in Public Life published a report, in which recommendation 28 stated:
"In planning decisions the ability of elected members to represent constituents' interests where they have personal and prejudicial interests has been unnecessarily diminished."
The recommendation was spot on. The point that I want the Minister to reflect on is that it continued:
"This should be changed to give any elected member the right to speak (but not vote) for their constituents at a planning committee meeting . . . provided"—
and it then gave three perfectly reasonable conditions. The first is that
At least councillors can say their piece openly. Everybody knows that if they are affected they ought to be able to do that. Technically, there is a discretionary waiver of those rules, which I will come on to. However, that is the problem.
The Standards Board for England consulted on the code of conduct and made recommendations to the Office of the Deputy Prime Minister just a couple of months ago. I want to highlight two. Recommending changes in the code of conduct, the Standards Board said first:
"The Code needs to empower members as community advocates to take the lead on issues where their expertise is greatest and speak out on behalf of their own communities."
I am sure that that must be right. Secondly, the board said:
"The rules around personal and prejudicial interests should be clearer, especially for members who sit on more than one public body."
The suggestion is that the rules have gone too far and that they are unclear. They certainly need looking at.
I want to highlight one specific case in illustration, which involves a councillor in my constituency, Alan Bracey. We have a unitary authority; no other councillors represent his area. It is a one-member ward. That is significant, because if it was a three-member ward we could largely get round the problem. The one on the planning committee could keep their mouth shut and the other ward councillors could weigh in, making it clear what they thought. In a one-member ward, that cannot be done.
The area is also semi-rural and the ward is, roughly speaking, the village. In other words, if someone is a ward councillor and lives at the heart of the ward, as is preferable, the chances are that they will be affected by a planning application in that ward. If it has broad impact on the ward as a whole, it is quite difficult not to be affected.
I will not go into great detail about the application, but basically Network Rail wanted to cut down huge swathes of trees to make the tracks safe. A lot of local people were unhappy, including Councillor Bracey. For 12 months, he fettered his discretion, stepped out of the chair of the planning committee, did not vote, but spoke out powerfully and gained some significant concessions. However, he has now been told that because he lives 100 yd away from some of the trees, he has a personal and prejudicial interest—if he has, he always did, but he has only now been given the advice—and should not even speak. That feels wrong, and it was not the intention of the legislation.
Councillor Bracey can apply to the standards committee of his local authority for dispensation to speak. However, it will get its legal advice from the same council's legal advisors who have told him that he should not speak: in effect, it will be an appeal to the person who turned him down. The worry is that that does not provide him with the freedom to go along and speak. Obviously, that is a specific case, but there is a wider issue. As I said, the pendulum has swung too far.
I want to draw the contrast between the situation for councillors and that for Members of this House. Issues of personal, prejudicial and pecuniary interest apply to
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us, but the rules are very different. We are governed by the code of conduct for Members and accompanying guide to the rules, and, to paraphrase section 76(1) of that guide, Members may not initiate proceedings in cases in which they have a relevant interest, but may otherwise speak freely on matters that relate to the affairs and interests of a body from which they receive a pecuniary benefit—so it is possible for them to be paid—provided that the benefit is properly registered. Paragraph 70 of the guide to the rules states:
"For the purpose of taking part in any division . . . it is sufficient for the relevant interest to be disclosed".
So not only can Members speak; they can vote on matters in which they have a personal, prejudicial, pecuniary interest.
Why is that rule good enough for us and not for councillors? I have a sense that it is because we are hon. Members. We would not bend the rules or lobby inappropriately, whereas I do not know what the assumption is about our councillor colleagues, but somehow they need tight rules. As for us, who pass the laws of the land, as long as things are in the book and everyone knows, we can pretty much do what we like. I exaggerate slightly, but there is a great inconsistency, and I shall be interested to hear the Minister's comments.
Councillors are in an uncertain position. My hon. Friend the Member for Winchester (Mr. Oaten) asked the Deputy Prime Minister in 2003 if he would
"make it his policy to allow councillors on planning committees to make public statements on planning applications."
That is the kind of thing that we are discussing. The Minister's predecessor, the present Minister for Immigration, Citizenship and Nationality, set out the legal framework and then said:
"Ultimately it is for individual members to decide how they conduct themselves in carrying out official duties, including whether to make public statements".—[Official Report, House of Commons, 18 March 2003; Vol. 401, c. 742W.]
In a sense, therefore, it is up to them.
My worry is that councillors are now frightened of tripping over the rules. They are frightened of being taken to the Standards Board for England. There is concern about over-use of the board, maliciously or by people who did not get the outcome that they wanted. I talk to councillors and ask them to speak out, but they say, "I can't say anything before the meeting, because if I do I will not be seen to be unbiased." The public do not understand that. I have come across too many cases in which councillors must either be completely straight with their constituents, explaining that they cannot express an opinion at all, or they give a coded message, along the lines of "I can't really say, but you know me." It should not be like that.
I will not labour the point. My feeling, and the feeling of the Committee on Standards in Public Life—and I think that the Local Government Association has similar concerns—is that a well-meaning attempt to make sure that there is probity in the planning system, as there should be, and that cases are decided on their merit, has resulted in community representatives feeling disempowered, the community feeling that they do not represent them, and local democracy not being properly served.
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I do not expect an instant decision from the Minister, but it would be helpful to receive a suggestion of the response that the Department is likely to give to the submission on changes to the code of conduct made to it by the Standards Board for England in September 2005, and, more generally, some indication that the Department is willing to consider again whether things have gone too far and we are unnecessarily shackling the ability of councillors to represent their communities' concerns.
1.43 pm
The Parliamentary Under-Secretary of State, Office of the Deputy Prime Minister (Jim Fitzpatrick) : It is a pleasure to see you in the Chair, Mr. Cummings. I congratulate the hon. Member for Northavon (Steve Webb) on securing the chance to raise the issue, in general and on behalf of his constituents. It is clearly a matter of wide public interest.
I appreciate the strength of feeling aroused by the case that he raised, but he knows that it would be inappropriate for me to comment on the circumstances of an individual case. I do not think that my response will fully satisfy him, but he will, if he waits for my conclusion, hear something about reflecting on the latest assessment of what is happening, which may give him some hope for a pronouncement shortly.
If there are allegations about the behaviour or position of an elected councillor that is, in the first instance, an internal matter for the local authority. Subsequently, as outlined by the hon. Gentleman, such matters ought to be referred to the Standards Board for England. However, if allegations impinge on an individual planning application, it could be referred to the First Secretary of State or one of his inspectors on appeal. In such circumstances, also, I would not wish to say anything that might prejudice the quasi-judicial appeal process. However, I wish to be helpful, so I shall explain some of the rules and guidance on the planning process that apply to elected members, which will reinforce much of what the hon. Gentleman said.
As elected members, councillors may sit on a planning committee; they are responsible for making planning decisions, although a large number of those are delegated to planning officers for determination. Councillors do not act as judges on planning applications; they perform an administrative task. They balance two roles, which are not always harmonious—determining planning applications and representing the public opinion of their communities. The planning committee is normally given background information, applicable policies and a variety of circumstances on an application, with recommendations on the decision to be taken that should guide members in making their decision.
The English planning system involves a considerable amount of discretion. As a result, decisions of councillors on a planning committee may be based on a variety of considerations. However, the law defines that decision-making duty. Failure to act within the confines of the law may render the council open to legal challenge by means of judicial review.
The cornerstone legislation on reaching decisions on planning applications is section 54A of the Town and
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Country Planning Act 1990, which is incorporated into Section 38(6) of the Planning and Compulsory Purchase Act 2004. Section 38(6) states:
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
As I said earlier, elected members on a local authority planning committee have to balance the needs and interests of individual constituents and the community with the need to maintain an ethic of impartial decision-making on what can sometimes be highly controversial proposals. The Nolan Committee acknowledged that that dual role can give rise to great tensions, as is clearly the case in the situation that the hon. Gentleman has brought to the House. In response, the Local Government Association issued a guidance note to authorities in October 1997.
The Local Government Act 2000 introduced a new ethical framework to local government, including a model code of conduct for councillors. The relevant elements of the code are a requirement on each local authority to adopt a local code of conduct for councillors and co-opted members, the establishment in each authority of a standards committee to provide support and guidance to members on the requirements of their local code, and a requirement on the Standards Board for England to arrange for the investigation of allegations of breaches of local codes through its ethical standards officers.
The LGA revised its original guidance in 2002 to reflect the new legislative arrangements. It was further updated in January 2005 in the document entitled "Member Engagement in Planning Matters", which states that if members have both a "personal" and a "prejudicial" interest, they should not participate in discussions. However, a planning committee member can still speak out against applications on behalf of ward constituents. Nothing in our guidance prevents them from doing so. The consequence is that they do not take part in the decision.
Another question is whether councillors should speak out in council meetings and in committees. They should probably not. Chapter 8 of "Probity in Planning" makes it clear that councillors who have openly declared a view on an application should not use their position to lobby other councillors or to organise a caucus to support their position. The decision-making meeting should be planned to give the councillor a say, but one that is similar to that which other stakeholders will get, in order to preserve fairness. Elsewhere in Chapter 8, it is made clear that other political meetings should not be used to organise a decision in advance of the committee that is due to make the decision.
The document published in January 2005 by the LGA, "Member Engagement in Planning Matters" gives similar advice. The purpose of the document is to explain to members how they can become more engaged in discussions without fettering their discretion. However, if they do the guidance is clear:
"Members who do take an active stand in support or assistance to an application should withdraw from the planning committee deliberations. Responding to lobbying is fully legitimate where a councillor openly admits an interest in the outcome of deliberations and withdraws from the discussions on which they have a particularly strong view and stands down for the period while the item is under discussion."
In the event of a conflict of interests arising in a particular case during its consideration by a local authority, it would be for elected members to seek advice from the authority's own legal staff. They would then provide advice on interpretation of any relevant legislation and on case law. However, as I said, it would be inappropriate for me to comment on such a matter.
One of the Government's aims in reforming the planning system is to make it fairer and more transparent. Accordingly, the Office of the Deputy Prime Minister continues to work with partner bodies such as the Local Government Association to produce advice and guidance for elected members on propriety issues in planning. Indeed, the planning advisory service, an arm of the Improvement and Development Agency, is financed by the Government. Its creation was one of the benefits of the £600 million in planning delivery grant allocation made available to improve the system.
I am pleased to say that only last week, a guidance document, "Positive engagement—a guide for planning councillors", was sent to every elected councillor in England. It was produced by the planning advisory service and endorsed by the chairman of the Local Government Association and my noble Friend Baroness Andrews. It too says that councillors should not
"expect to lobby and actively support or resist an application and still vote at committee (or even stay in the room during discussions)".
The code of conduct for local authority members requires that members with a prejudicial interest in an issue should withdraw from the council meeting. We are aware of concerns that some people have raised about the effect of the current rules on members' ability to represent the concerns of their constituents. The Standards Board for England has recently concluded a review of the code of conduct and the board's conclusions from that review include consideration of this issue. The board has proposed amendments to the code of conduct as well as a recent recommendation of the Graham committee on standards in public life and the Select Committee on Office of the Deputy Prime Minister on the conduct regime for local government and the role of the Standards Board for England. We aim to announce our conclusions on proposed amendments to the conduct regime for local government later this autumn.
Steve Webb : Before the Minister sits down, will he provide some clarification? I am encouraged that these matters are being looked at. I read out a couple of general recommendations made by the Standards Board for England. Can he clarify whether the board has made any specific recommendations? I read out one about making the code of conduct clearer. Has the Department received specific recommendations from the board that are, perhaps, in the public domain, or are they at the same level of generality as the one I read out?
Jim Fitzpatrick : I apologise to the hon. Member for Northavon but I cannot share that information with him at the moment, but I will write to him when I have clearance to identify for him the exact nature of the recommendations. As I said, we aim to make an
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announcement later this autumn, which means within the very near future.
I thank the hon. Gentleman again for raising this important issue. It is clearly a matter of concern not just to him and his local authority but to other authorities in
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the country. I assure him that the Government will continue to work with partner bodies such as the Local Government Association to monitor and improve guidance to local authorities at the earliest opportunity.
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