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Julia Goldsworthy: Will the Minister comment further on the responses? Was there general support for the exclusions and was there a view on whether that should be contained in regulation, or just in guidance? The response that I have seen from the LGA seems to be clear that its preference was that that matter be dealt with through guidance.
Mr. Khan: It is important to exclude certain matters, otherwise the OSC would be under a duty to consider, creating confusion and duplication. Local authorities must only pay regard to guidance—that is the difference. Our consultation ran from December 2007 to March 2008 and received responses from 202 individuals and organisations. I shall have to write to the hon. Lady to give her a summary of some of the points that were raised. For example, most local authorities were in favour of the remits of the order. The Equality and Human Rights Commission was very much in favour of the terms of the order. In the Government response to the consultation, we confirmed that, based on some of the issues most commonly proposed by respondents, an individual’s complaint would be excluded from the scope of the councillor call for action where there are already statutory processes in place
It is worth mentioning on the record that the Joint Committee on Statutory Instruments looked into this matter and chose not to bring the matter to the attention of the House. The House of Lords Select Committee on the Merits of Statutory Instruments also considered the order, which is reassuring.
The order therefore reflects the public commitments that I have mentioned. In article 2, it excludes matters for which there is already a statutory right of review or appeal, covering a variety of individual complaints, including individual planning and licensing reviews. That includes any matter that is vexatious, discriminatory or not reasonable to be included in the agenda or discussed at a meeting of the OSC.
My hon. Friend the Member for Stroud referred to planning, as did the hon. Member for Falmouth and Camborne—I will come to that in a moment. In short, matters relating to planning decisions are excluded. We believe that their exclusion is necessary, as robust statutory processes for dealing with planning applications already exist. Not excluding planning applications would create unnecessary duplication, confusion and delay for applicants, the authority and stakeholders, including members of the public. That is not the purpose of the councillor call for action. I can imagine some of the objections were we to add that, with complaints being made about central Government dictating further delay, bureaucracy and duplication when it comes to—
Mr. Jackson: I thank the Minister for being generous in giving way. Will he specifically address the issue raised by the hon. Member for Stroud? What specific statutory or other recourse is there for individuals in respect of the process leading up to and including a planning application, rather than in respect of the merits of that particular planning application, under existing planning law?
Mr. Khan: The hon. Gentleman will be aware that planning is both democratic and inclusive, with decisions on significant planning applications made by a local authority’s elected planning committee. For instance, I had the pleasure of serving for 12 years as a member of a planning committee in Wandsworth. It should be noted that ward members are always allowed to speak at committee and are expected to represent the interests of their constituents. Where a planning committee is unable to reach a decision, or there is a contentious decision, some authorities have procedures in place to allow the decision to be referred to another body; for example, full council such as in Wandsworth council, or a strategic planning committee.
It should be emphasised that matters relating to plan making and other issues associated with planning and of local concern—for example, the use of redundant buildings, enforcement issues or the condition of the high street—are not excluded from the councillor call for action. We believe that councillors have a critical role in plan making. Typically cabinet members or strategic planning committee members will debate contents of the local development framework, with full council providing sign-off. That is important, as we have a planning system whereby decisions on applications are made in accordance with the plans, unless material considerations indicate otherwise.
A further demonstration of the involvement of local councils is the planning process, which has a long history of involving local communities in decision-making applications. There are statutory periods for committee involvement, applications must be advertised and there is a 21-day statutory period for comments. Local planning authorities are legally required to take into account timely, relevant representations and applications and make the reasons for decisions public. Early and meaningful community involvement, including with those people who do not normally engage with planning, is a central component of the planning process. We have increased the contribution we give to planning aid, which assists people in getting involved in individual local planning decisions.
Anne Main (St. Albans) (Con): May I ask the Minister for clarification on process? He referred to committees. The Government have urged many local authorities to make exceedingly more decisions under the delegated authority of a local authority, which often causes great unhappiness to local people who do not feel that there is that engagement. Would they be able to challenge the number of decisions taken under the delegated authority at a call-in, rather than just the planning process with regard to committees?
Mr. Khan: Mr. Chope, I am sure that you will appreciate and remember, as will the hon. Lady, that a call-in is not a decision made by the local planning application committee. This order and the councillor call for action are about the micro-level. A planning decision would be called in at a high level. That would not be relevant to this order or to the councillor call for action.
Article 3 clarifies that where a call for action relates to an allegation of systematic failings or failure to provide a service, the matter is not excluded even if the allegation refers to otherwise excluded matters of planning applications, licensing applications and reviews, or a matter where there is an existing right of appeal.
I turn to vexatious or racist calls for action. The hon. Member for Peterborough raised an important point and he has huge experience of community cohesion in his capacity as a constituency MP. We have no doubt that the overview and scrutiny committees would give such calls for action from extremist councillors short shrift, as they deserve. If we did not make the order, authorities might feel obliged to include the call for action on the committee papers, which would be posted on the council website and circulated.
The hon. Member for Falmouth and Camborne, who speaks for the Liberal Democrats, asked about the distinction between guidance and the order. One of the issues raised in the consultation was the nervousness about being required to discuss matters which were vexatious or racist calls for action. That is one of the reasons why, for example, the European Human Rights Commission was keen for us to go down this route to avoid that happening. She will be aware that there are British National party members who are elected.
Julia Goldsworthy: I note that paragraph 8.5 in the explanatory memorandum states:
“If these matters were covered only in guidance it could result in overview and scrutiny committees being required to include inappropriate matter in their meeting agenda.”
Will the Minister please provide clarification? Is he saying that if this order were not introduced, councils would be required to consider all calls for action on the agenda, or is there already discretion for overview and scrutiny committees to reject some calls for action, provided that they give an explanation?
Mr. Khan: The regime has not begun yet. It is from 1 April onwards. We are talking hypothetically about when there is the power to have a councillor call for action. The concern is that if there is just guidance, councils may feel obliged to consider vexatious or racist matters. If it were at their discretion, they would be liable to challenge. We want to avoid challenges against local authorities. That is why we have introduced the order. It is the safety net that local authorities have asked for. The Equality and Human Rights Commission was concerned about the issue as well.
Similarly, if a councillor made a call for action to the overview and scrutiny committee in respect of an individual planning application and that was included on the agenda for the meeting, that might give a misleading impression to members of the public about how they could seek to influence planning decisions. My hon. Friend the Member for Stroud gave examples of problems that could occur. We want to avoid that. We want to leave overview and scrutiny committees to focus on matters that they can influence. That is why the Government have introduced the order.
Let me give a practical example. A call for action might raise a concern that a local authority’s planning department is chronically under-resourced, citing a number of planning applications that have not been processed. In such a case, the call for action would be within the scope of the power, because it referred to a systematic failure, notwithstanding the fact that that related to planning and that individual planning applications were highlighted to support the complaint.
The Government want to give local authorities as much flexibility as possible about how they use the councillor call for action. The order still allows councillors to call for action on broader policy in relation to planning or licensing—for example, on regeneration or late-night drinking. Let me be clear. The order does not rule out a councillor ever calling for action in relation to planning or licensing. It simply means that individual planning and licensing applications or reviews will remain subject to existing statutory processes, avoiding confusion and wasteful use of both councils’ and citizens’ resources.
Mr. Drew: Who decides where the dividing line comes? The problem is that one person’s planning application is another person’s policy and process decision. Is the matter decided by the council? To where does it refer it if there is a conflict over whether it should be referred to an overview and scrutiny committee?
Before I conclude, I want to deal briefly with the specific points raised by hon. Members. Is the order necessary? Will it mean interference? How do we define “detrimental”? Those points were raised by the hon. Member for Peterborough. I can reassure him that nothing in the legislation prohibits an overview and scrutiny committee from considering anything. The order merely relieves the committee from a duty. We must remember that it is for councillor call-ins, not matters already considered by the overview and scrutiny committee. As I said, it will be for the overview and scrutiny committee to decide.
On the point about “individuals or entities”, a person who has an individual dispute about some entitlement is not what this is about. An entity means a company or partnership that makes use of and pays for council services. On the point about vexatious and discriminatory issues and cohesion, I hope that the hon. Gentleman feels that I dealt with those matters during my opening remarks.
The hon. Member for Falmouth and Camborne raised several points. She referred to an example of a wider problem and, God forbid, another baby P. Overview and scrutiny committees should not be getting into the merits of an individual case, although they will be entitled and should be encouraged to deal with systematic failures. Article 3 permits exactly that. On lap dancing clubs, she will be aware that the licensing policy can be discussed, but to avoid duplication of what is dealt with under statutory rights of appeal, individual applications are not the focus of the order or the councillor call for action.
In conclusion, our approach keeps the scope of the councillor call for action as wide as possible, and ensures an effective mechanism by which to empower councillors to be effective community champions. As such, the order is proportionate and contains appropriate measures to ensure that the councillor call for action will operate effectively. I respectfully ask the hon. Member for Peterborough not to divide the Committee. If he does, he knows where we stand on the statutory instrument.
11.5 am
Mr. Jackson: This has been an interesting debate. The phrase “Pandora’s box” springs to mind, because the Conservatives were not minded to divide the Committee, but I have been troubled by some of the important issues that the indefatigable hon. Member for Stroud has raised—I am afraid that will not help him with his Whips. First, let me address the overall, generic picture. The Minister lauds the extra powers that have been given to councils in the past few years through the conduit of the overview and scrutiny committees, and in that respect, there is no division between us. However, he fails to see the contradiction in his argument—that the order seeks specifically to prescribe areas that the committee can consider.
Mr. Khan: With respect, the hon. Gentleman is wrong, because overview and scrutiny committees can still do all that they could do before the order. He is wrong because the councillor call for action adds to the potential areas that the scrutiny committees can address. Non-members of such a committee can bring forward matters for it to discuss. He may believe that there is a matter that the order excludes, but there is nothing to stop the committee from discussing that matter in the first place, so he is wrong.
Mr. Jackson: I stand by my summary of the general position, which is that the Government are seeking to prescribe some issues. They are not doing so in a vacuum. What the Minister might describe as a legislative safeguard, others might see as a danger to free speech and to the authority and autonomy of local decision making. We must accept that if the order did not exist, by virtue of the test of reasonableness, and keeping within existing local government law and regulations, overview and scrutiny committees could disregard many of the issues that individuals wished to bring before them for consideration. The Minister is therefore setting up a straw man in several ways. I take his point about vexatiousness, and there is common ground on that. However, I am concerned about other issues.
The point that the hon. Member for Falmouth and Camborne made about two-tier councils, which was reiterated by the hon. Member for Stroud, is valid. More importantly, and with all due respect to the Minister, there has to be a way of considering the planning process by which a planning decision is being made, whether at local authority level or at the Planning Inspectorate in Bristol. That could be seen as a way in which the voices of people who are directly involved in a planning application, such as local residents, can be ignored. That gives me cause for concern. I do not say that the planning decisions will be wrong purely in respect of planning law, but the process is very important, and the Minister has not reassured the Conservatives—or even, perhaps, his hon. Friend the Member for Stroud—on that.
I am very concerned. The Minister paid generous tribute to my knowledge of and interest in community cohesion that has been gained as a result of my work as a constituency MP. I am concerned about the concept of prescribing issues to be brought to an overview and scrutiny committee on the basis of the party that a councillor represents. We are on a slippery slope in that respect.
I defer to no one in my detestation of the British National party and I think that that view is shared by most hon. Members here. However, the fact is that those councillors are elected under the current system by the people in their wards. I take the pragmatic and practical view that the chairman or the senior councillors who sit on the overview and scrutiny committee are unlikely to be predisposed to undermine community cohesion in their constituencies, wards, boroughs, or districts by bringing forward a call for action that may cause serious problems. The key issue is whether we trust local people to make decisions, or whether we have to have central diktat. I know that the Minister will not necessarily agree with the latter description.
 
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