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Let me just home in on the issue. Trustees could buy a separate annuity for each member. However, in practice, trustees frequently buy one insurance policy or annuity covering the benefits for a number of members. Under this arrangement, there should be no risk to members provided that the policy covers all the benefits due under the scheme. If we were to make this proposed amendment, trustees of such schemes could find that they would have to comply with the scheme funding, employer debt and PPF legislation in respect of such benefits, which would impose additional costs without any benefit to members. Indeed, it would be diverting scheme assets from their primary purpose of providing pensions.
It is our view that where a member has accrued rights on a money purchase basis, and then the scheme has bought an annuity exactly matching its liability to the member, those benefits should remain money purchase in character. Importantly, the benefit of that annuity should be ring-fenced for that member. We will be considering whether schemes are, in practice, ring-fencing the benefit of such annuities appropriately. If not, it would be appropriate to legislate to clarify the position. I can reassure the noble Baroness that the powers that would be conferred by Amendment 31 would enable the Government to make regulations in this area as necessary. With that assurance, I hope the noble Baroness will feel able to withdraw her amendment.
The noble Baroness also asked about the breadth of the power conferred by Amendment 32 and was concerned that it could be used to remove PPF protection retrospectively by broadening the definition of "money purchase benefit". It may be helpful if I set out the Government's overall view of this issue. In general, the PPF offers protection to members of occupational pension schemes unless it is not needed, either because the scheme is a money purchase scheme and hence cannot be in deficit and needing the protection of the PPF, or because the benefits are secured in some other way; for example, if the scheme benefits from a Crown guarantee. If the Government do not intend to use the power conferred by Amendment 32 to remove PPF protection from schemes or members who may need it-sorry, the Government do not intend to use the power. Perhaps I need to read more carefully!
It is conceivable that pensions professionals could develop benefit structures that would be outside the definition of "money purchase benefit" as it would be after these amendments come into effect, but which do not need to be covered by the protections of the
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Finally, I note that the UK is bound by the provisions of the 1980 insolvency directive, and that it therefore needs to ensure that pension scheme members are protected in the event of the insolvency of the employer sponsoring their pension scheme. This would limit any Government's freedom to use the power conferred by Amendment 32-or, indeed, the power at Section 126 of the Pensions Act 2004, which permits Ministers to prescribe that certain schemes are not eligible for PPF protection-to prevent members losing out. I hope that the noble Baroness is reassured about the breadth of these powers.
Baroness Drake: I thank the noble Lord for his detailed reply. I appreciate that trustees may not purchase individual annuities for individual members and can take out insurance policies for a number of members, but it is important to catch that issue of the policy or the annuity identifying the members covered so that it is clearly ring-fenced. One cannot leave an ambiguity at the purchase of the policy or annuity stage and then hope that somehow there will be clarity around ring-fencing if and when a legal challenge comes. I am very concerned that there are no ambiguities left, because either we will see another Bridge case or we will leave unprotected a group of members that the Government intend to protect. I note the Minister's reference to making regulation and urge him to ensure that those regulations, when applied to this amendment in this clause, extend the protection with as much clarity as is possible to do under regulation.
With regard to the new powers, I appreciate that evolution can occur in the area of money purchase benefits. It is important to have on the record the Government's recognition that the insolvency directive will limit the way in which the Government can exercise those powers in Amendment 32 and that the protection of people in funded occupational schemes is not diminished by this amendment. On that basis, I beg leave to withdraw Amendment 29A.
The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Lord Marland): My Lords, with the leave of the House, I shall now repeat as a Statement an Urgent Question made in the other place by my honourable friend the Minister of State for Climate Change.
"Since the feed-in tariffs scheme started it has been successful in encouraging people up and down the country to get involved in local, clean, green energy generation. Solar PV has led the way and over 100,000 homes now generate their own electricity. But let us be clear: the current returns now available on solar PV investments, funded by consumers through their energy bills, are unsustainable. Falling PV costs mean returns are double those originally envisaged under the scheme. This does not provide value for money for the consumer.
If we do not act now, the entire £877 million FITs budget for the current spending review period will be fully committed within the next few months. That would limit the number of people able to benefit from feed-in tariffs in general. We are therefore urgently consulting on new tariffs for solar PV installations. Because of the urgency, we propose that these new tariffs apply to all new installations that become eligible for FITs on or after a reference date, which we propose should be 12 December. We are also seeking views on other proposals, including one to strengthen the link between feed-in tariffs and energy efficiency. It cannot be right, and it is a fault of the system we inherited, that we currently subsidise renewable energy generation for inefficient buildings.
We are determined to secure successful feed-in tariffs through sustainable growth rather than through boom and bust. That is why we are consulting today on new tariffs for solar PV: to save the FITs budget in the interests of all eligible technologies and to bring much greater coherence to this Government's ambitious policy to green Britain's homes".
Baroness Smith of Basildon: My Lords, I thank the Minister for repeating the Statement in your Lordships' House today. It is not the first time that we have discussed feed-in tariffs in your Lordships' House. I have to say to the Minister that I was surprised to receive an e-mail this morning announcing that a Written Statement was due to be issued. Given the public interest, I was surprised that the Government wanted to issue a Written Statement rather than an Oral Statement. I appreciate this, and I am grateful to the Minister for repeating it. With thousands of jobs and businesses at risk, he will understand the concern that this could have been slipped out as a Written Statement without the opportunity to seek answers to some very important questions in your Lordships' House.
The Minister will recall that we discussed this issue in your Lordships' House just before the Summer Recess. Given that the order we debated then made
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When I asked the department about this previously I was informed that the consultation was required because of a loophole in the law. I found this quite surprising, because I was concerned about whether the issues addressed in this consultation that seek to plug that loophole were evident or should have been evident at the time of the last consultation. When did the Government become aware of this loophole, and would it have been reasonable for them to have been aware of it sooner, prior to this consultation-indeed at the time of the previous consultation?
Does the Minister really understand-I am sure he does-how difficult it is for investors to have any confidence in the Government if the goalposts on feed-in tariffs keep moving, making it more and more difficult for them? Are they supposed to guess what the next so-called loophole will be that the Government will try to plug? This is the second significant change in a matter of months. I have to say to the Minister that it seems to be a bit of a shambles. I am sure he is aware that investors need certainty, and this merry-go-round of consultations and changes provides exactly the opposite for investors and for the industry. What message will the Minister give to current and potential investors, and will he offer an apology to them for the chopping and changing that we have witnessed over the past two months?
As I said in our previous debate on this issue, to say that only the Government wanted to see any changes in the feed-in tariffs and that everybody else wanted to leave the feed-in tariffs as they were creates a false dividing line. Investors and others are aware that installation costs have fallen by around 30 per cent, and it was recognised that feed-in tariffs would change in line with that. Many preferred a tapered change.
What is not understood is why the Government have reduced the tariffs by more than 50 per cent, which is a significantly larger amount than the reduction in costs. With a new rate of 21p per kilowatt hour, less than half the previous rate, has any assessment been made of the impact on jobs and businesses? Last year the solar industry employed 3,000 people in 450 businesses. Today it employs 25,000 people in 3,000 businesses. Has any impact assessment been undertaken of the impact on jobs and investment in business?
In the previous consultation just a few months ago, over 80 per cent of those who responded opposed the Government's plans. What level of support do the Government expect for the plans they have issued in this current consultation? What notice will be taken of the consultation this time? Although the consultation does not finish until 23 December, the cut-off date for eligibility under the current scheme ends before that on 12 December, in just six weeks' time. Will the Minister take any note of the responses to the consultation, or is this a pronouncement of government policy rather than a consultation on possible or intended changes to government policy?
I listened with interest to the Statement in the other place earlier today, and I thought I heard the Minister, Greg Barker, say, if I understood him correctly, that there could be individual exceptions to the cut-off date. Does the Minister know what these are, or what the process will be for those individual exceptions? Can any advice be given to those who have already commissioned domestic solar power systems and paid a deposit but who will not have been able to manage the installation, certification and official registration by 12 December?
Has any assessment been made of the impact on community projects, and are the Government worried that the changes being made will mean that those on lower incomes are now far less likely to benefit, while those on higher incomes are more likely to be able to do so? It might be helpful if I quote to your Lordships' House a gentleman called Nigel Farren from Energise Barnet, who says: "Churches, synagogues, mosques, schools, sports clubs and other community organisations across the country are getting together to establish energy saving initiatives so they can lower energy bills, reduce carbon emissions, and eradicate fuel poverty among their members. Unless community-owned projects and community-buying group initiatives are ring-fenced from the feed-in tariff cuts, the trust of these organisations and thousands of volunteers will be lost, setting back the whole green agenda in keeping secure their help in delivering the Green Deal".
It is a sad irony that on the very day the Deputy Prime Minister Nick Clegg announces funding for 35,000 new jobs, a successful industry that has created 20,000 jobs in the last year seems to have had the rug pulled from right underneath it.
At the beginning of the Minister's comments he said that this was a successful scheme. It is, and we want it to remain so-we take great pride in the capacity that it has built up and those who benefit from the current scheme. We know that there have to be some changes, but these are very serious issues that I have raised today, and I hope the Minister will be able to answer my questions.
Why was this initiated? It was initiated simply because if we carried on at the current rate at which people are taking up this thing, we would have run out of money by March. Therefore there would have been no money available to pay for other excellent initiatives that have the benefit of feed-in tariffs such as anaerobic digesters and other projects that we have out there.
We read in the St Albans & Harpenden Review that a solar panel company is advertising panels at £3,995, which is down enormously from the original cost-not by 30 per cent but by nearly 60 per cent. There is also a guaranteed IRR of 14 per cent, backed by the Government through an incentive scheme that frankly has become overheated and bloated and is in danger of ripping off consumers and those who invest in it. So of course the goalposts have been moved for the investors who the noble Baroness wants to have a clear path. Of course, they brought it upon themselves to a large extent by advertising schemes that show that government-backed schemes have outstanding benefit beyond the normal rate of investment return. It is reasonable in the current world that we have an investment return of 4.5 per cent or 5 per cent, which is what the new tariff would offer.
The impact on jobs is regrettable, given that an industry has developed. I am sure the employers will look very closely at that and will hopefully look to the export market, where, as we all know, the sun shines more often than it does in this country. I have just been on a visit to China, and I offer to support any solar panel manufacturer in their export endeavours. As we all know, one of the unfortunate things about this country is that the sun does not always shine when we need energy most, and we have the shortest days of the year.
The Government are left with a choice. Does the tariff represent value for money for the customer? Does it represent value for the taxpayer? Does it have a real impact on the supply of electricity to homes, which is currently 0.1 per cent and could go up to 0.3 per cent? Do we have the climatic environment that is necessary or beneficial for this type of product? The answer is that we believe it could be used better elsewhere.
The noble Baroness asked further questions on cut-off dates, the response to the consultation and community things. Of course, the whole point of consultation is that we are consulting. This is not an edict but a consultation period. We want to listen to views before we go ahead with our proposals and we will look at exceptions, which is the point. On community projects, it is important that we maintain community buy-in. That is why we have agreed to keep 80 per cent of this tariff for aggregated schemes, which will still provide a return on investment of around 4 per cent. Because the purchasing power of these solar panels can drive greater economies of scale, they should be able to benefit more from IRR. Therefore, it is wholly in tune with this Government's policy, which is to be the greenest Government ever and to deliver a benefit for consumers. That is at the heart of these proposals.
Lord Teverson: My Lords, it is clear that one of the challenges, as mentioned by the Minister and the noble Baroness, is the sustainability of this industry.
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Having said that, one of the most unfortunate things is that we are moving to the second review on FIT rates in a short period. Where we have a global investment market in energy-in the United Kingdom we have a requirement, estimated by Ofgem, which is often quoted, of £200 billion of investment over the next 10 years-how can we make sure that the investing community remains confident in government schemes and that investment in our energy systems, energy plants and energy distribution systems can be sustained? One change to FIT rates is unfortunate, two might be careless, but another one would mean that we could destroy confidence in investment in this industry. It is not perhaps so much of a problem for manufacturing industries, but the installation industry in this country is far less mobile.
Although I applaud the Government's efforts to make sure that this business and this industry stay sustainable over a number of years, how will the Minister ensure that that confidence, not just of households but of other larger investors, remains in the UK energy market?
Lord Marland: As always, my noble friend Lord Teverson is well informed about these matters and I am grateful for his broadly supportive comments. I totally agree and accept that the confidence of the investor is paramount. However, put yourself in the position of the Government. We inherited a scheme of feed-in tariffs that did not consider the fact that the more solar panels that are bought, the cheaper they become, as illustrated by this argument; and that a pot of money is available to support this scheme, which becomes a scheme for which the IRR is way beyond most people's dreams and beyond what is reasonable for consumers. At some point, a decision has to be made to say stop or pause or to take action. That is broadly the step that we have taken on this.
I wholly agree that getting future investment and the infrastructure of this country right is fundamental, but we have to get that right against the backcloth of heavy lifters in the game changes for the electricity supply. As I have already indicated, I do not believe that the 0.1 per cent, or the £3.2 billion that we will have saved the consumer, is the right change of game plan for electricity in this country.
Baroness Worthington: My Lords, I am grateful for the Minister's comments. My concern is that this is merely about the Government's priorities, which are
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The Government saying, "This is just too successful, we cannot afford it", is not a good answer. We must go back to first principles and ensure that our successes continue to be successes. If they are having trouble now with feed-in tariffs, they will have even more trouble when they look at energy market reforms and try to fix prices for the long term on the big generators. That should be settled by the market. I am very concerned that the modelling is incorrect and that trying to fix prices is just the beginning. We should probably look at market-based solutions.
Lord Marland: The noble Baroness is completely right. The modelling was incorrect. We inherited it and we have sought to get it right. As I asked earlier when I talked about government priorities, do we think that this is a game changer in electricity supply and that it is in the best interests of the consumer? The answer from Consumer Focus is no. As regards the game change in the electricity supply of 0.1 per cent, even if every house had them the figure would get to only 0.3 per cent. Therefore, this goes down the list of priorities. I am afraid that it is not a government priority, given the massive problem that we will have for electricity in the 2020s.
Baroness Armstrong of Hill Top: My Lords, first, I declare my interest: I chair a very small community interest company, a social enterprise, that was set up in order to get cheaper, more sustainable fuel into poor and deprived communities. It has had a good success rate in doing that and the next phase was to seek to introduce solar PV. I am interested that the Minister thinks that it is not very successful. I could take him to some elderly residents in my previous constituency who have solar and which works remarkably well for them. They were looking forward to solar PV to deal with electricity. The reality is that the Government are taking a huge risk with the market. I want to be sure that they are watching that they do not kill off the market altogether with these actions.
The other issue is that nationally-not just in the north-east and Yorkshire from where the company to which I referred operates-the work on due diligence, tenant consultation and so forth has meant that very little work has been done in terms of installing solar PV on social housing. I want to be sure that in the changes the Government will not penalise tenants in social housing. I confess that I have not read all of this very thick document, although I have tried to do so, but I am not convinced that the Government
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Lord Marland:Obviously, the whole point of the consultation is that we have representation from the noble Baroness and those communities that she represents. I would be delighted to meet them and pursue this issue in greater detail.
The scheme has been successful-too successful-and that is why we are taking these steps. As I referenced earlier, there is a continuation for aggregated schemes. From the communities' point of view, surely the most important thing that we can do to support them is to have a retrofit programme. If we start from that end, solar PV makes sense. That is why the Green Deal is so important and is a banner product for this new Government.
Lord Jenkin of Roding: My Lords, I apologise that I was not here for the start of my noble friend's Statement, but I had already read it. I welcome what he said about the importance of protecting consumers. I am not sure the noble Baroness, Lady Armstrong, recognised the fact that the cost of this is actually borne by the consumers of electricity; it is not paid for by the Government. The Government put an envelope around the maximum sum. In fact, the figures show that it will increase by nearly three-and-a-half times over three years. Nobody could accuse anybody of being stingy on that one. The fact is that any of these subsidies for special help to different forms of electricity generation goes straight through the companies on to electricity bills. I do not know whether the noble Baroness studies her own electricity bill; mine shows the amount that is being paid towards government subsidies-at the moment. What is it going to be in 2020? Ask Ofgem and it will tell you.
Lord Marland: As always, I am very grateful to my noble friend Lord Jenkin of Roding for his intervention. It sets up the fundamental question: what is going to be the cost of FITs on the consumer's energy bill by 2020? It is going to be £26. Bringing in these steps will reduce it to £3, which some people might not want to spend, but it is a considerable reduction. My noble friend is quite right about putting the consumer first, and I apologise that those in my department are masters of disguising that fundamental point.
Baroness Parminter: My Lords, given that the coalition agreement includes a strong commitment to encouraging community ownership of renewable energy projects, what advice can the Minister give to the community energy co-operatives around the country? I am aware of three in my area that have live share offers at this moment. It is now unclear whether their proposed projects remain viable. Should they continue to solicit funds? Does the Minister recognise, as I do, that further reductions of the feed-in tariffs for installations at more than one site-which, I understand, were put in in order to get rid of the "rent a roof" schemes-actually threaten community projects that cover more than one site, such as local hospitals in Warwickshire or local schools in my area in Wey Valley?
Lord Marland: I am very grateful to my noble friend. The fact is that if we did not act now, there would be nothing in the pot for those schemes to which she is referring because it would be empty by March for the next spending review period. We have taken this action to allow community schemes, among others, to carry on. This is not retroactive. If you are in the scheme already, you are still benefiting from it. It is new regulation that we are bring in. I hope that gives her a degree of comfort. I am, of course, happy to explore it during the consultation process and, as always, I am delighted to hear my noble friend's views.
Lord Reay: My Lords, I welcome the Statement, which I hope will be one of a series aiming to reduce the subsidies available for renewable energy, as the Government seek to limit their cost to the consumer and to the economy.
Will the Minister say whether he meant all their own electricity or just some of it, perhaps including those who generate only a very small part of their own electricity? Will he give any figures to indicate how much electricity is being generated or has been generated to date by solar PV, and how much do the Government hope or expect will be generated in the future?
Lord Shutt of Greetland: My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Localism Bill, have consented to place their prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Baroness Eaton: My Lords, I shall speak also to Amendment 2. I have tabled these probing amendments in order to request clarity from my noble friend the Minister. This is an amendment to allow fire and rescue services to charge for calls regarding persistent false fire calls. False fire calls from faulty alarms in non-domestic premises are a significant burden for fire and rescue authorities. Around a third of all fire brigade attendances are to false or faulty alarms. In London alone, there are 30,000 attendances each year as a result of calls from automated fire alarms. Of those, only 3 per cent of the calls were to actual fires and in just 1 per cent to fires was a hose needed to put them out. Clause 10 is intended to allow fire authorities to charge those building owners who persistently generate such calls, thereby giving them an additional power to reduce the number of calls and the associated disruption, cost and increased risk to the public.
However, there is an established consensus from the sector that the current wording of the Bill, which addresses only malfunctioning and "misinstalled" alarms, covers less than one-fifth of the total issue. For example, of the 6,002 recorded calls from these alarms in Lancashire in 2009 and 2010, only 16 per cent were recorded as having been set off by faulty alarm systems.
I understand that organisations from across the sector, including those representing the businesses that install and monitor these alarms, have appealed to the department to look again at this drafting, but without success. For clarity, when I say "the sector", I am referring to the Local Government Association, of which I am a former chairman, the Chief Fire Officers Association, the London Fire Brigade, the Fire Industry Association, the British Security Industry Association, and fire services across the country. All these bodies and authorities have, I understand, appealed that the current wording does not address the issue and have warned the department that the legislation as it stands could mean much confusion and many arguments over the definitions currently in the Bill, and that clarity will probably only be reached following decisions from the courts.
I do not pretend to be an expert on this issue but I am sure that few of us would say the same about the bodies I have just cited. I would welcome clarity from the Minister on this subject. I beg to move.
Baroness Smith of Basildon: My Lords, I have a great deal of sympathy with the amendment of the noble Baroness, Lady Eaton. I declare an interest as a vice-president of the Local Government Association.
Before this legislation, I had never come across or heard the word "misinstalled"-it is a curious turn of phrase-but clearly if an alarm is misinstalled the idea of it being maintained at relatively regular intervals is of course the responsibility of the business holder in that company. That has to be undertaken. That is why this is a reasonable amendment.
The only question I have on that concerns the evidential burden. If the business owners had taken all reasonable steps to ensure that the alarm system was properly maintained, would any action be taken against the company which had failed to do so or would it be a matter for the business? There is a slight legal quagmire here, and although I am in no haste to make extra work for lawyers, I broadly support the amendment. It is entirely reasonable.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham): My Lords, I thank the noble Baroness, Lady Eaton, for tabling this amendment and I hope that she will not be too offended when I say that I am not going to accept it.
The fire and rescue services often raise the issue of the number of mobilisations to faulty fire alarms, perfectly reasonably, at non-domestic properties. We agree that this is a significant issue and we have addressed it in the Bill by proposing that, following local consultation, fire and rescue authorities will be able to recover their costs in cases of persistent false alarms in non-domestic premises where fire alarms have malfunctioned or have been misinstalled-I believe that is the word.
It is certainly true that some fire representatives support the amendment-indeed, the noble Baroness, Lady Eaton, laid out who they were-and want to widen the scope of the clause to cover a wider range of incidents. However, on the other side of the coin, there are others who do not agree with the amendment and are concerned that it is confusing and will lead to additional burdens.
It is vital that we keep charging provisions as straightforward as possible and do not create uncertainty for businesses or fire and rescue authorities which seek to recover their costs. If we were to widen the scope of the clause in this way, it would mean that the fire and rescue authority would have to provide evidence that a business had not properly maintained a piece of equipment. Going down this route could only open up a significant potential for challenge that would benefit neither businesses nor the fire and rescue sector. The Bill already allows for authorities to charge under a wide range of scenarios that can lead to malfunctions and the amendment would not add anything to that.
On that basis, I am not persuaded the amendment helps. It would not achieve its intended purpose in significantly widening the number of scenarios under which an authority could charge. Instead, it could unhelpfully complicate the Bill's provisions as drafted and leave those extra provisions open to legal challenge. I hope with that explanation the noble Baroness will be willing to withdraw her amendment.
Baroness Eaton: I am grateful for the Minister's response. The last thing I intended with my amendment was to complicate matters and to create an opportunity for more challenges. I am pleased to withdraw the amendment.
(a) the relevant time at which that issue is to be assessed is when the decision of the relevant authority was formally taken;
(b) an earlier statement or conduct by the decision-maker that amounts to predisposition is irrelevant; and
(c) an earlier statement or conduct by the decision-maker that amounts to predetermination shall be taken into account and given such weight as is appropriate in the circumstances of the case."
Lord Pannick: My Lords, Clause 25 is directed at the concern that local councillors must be able to express views on controversial local issues such as, for example, whether to give planning permission for a bail hostel without being accused of bias when the issue comes up for a vote at the council meeting. There are two main objections to the drafting of Clause 25 which the amendment seeks to rectify. The courts have adopted a sensible approach in this context and a local councillor can express strong views on an issue prior to the council meeting as long as he maintains an open mind in the sense that he is willing to listen to the competing arguments and the advice of officials at the council meeting before casting his vote. The courts have explained that the common law allows strong predisposition and the holding of strong prior opinions; it prohibits only predetermination, the closing of the mind and the unwillingness to listen to the debate before casting a vote. It is extremely unclear whether this distinction between predisposition and unlawful predetermination is being maintained by Clause 25 or whether it is, in some respects, being amended. It is so unclear that it will inevitably lead to protracted and expensive litigation, a process that will undermine rather than advance the Government's objective. That is the first objection.
The second objection to Clause 25 which the amendment seeks to rectify is that it appears-I say "appears" because the clause is very difficult to interpret-to provide that as long as the local councillor says or does nothing at the council meeting to indicate a closed mind it is legally irrelevant what he or she may have said or done before the meeting to demonstrate a closed mind-that is, predetermination. For example, if at the council meeting the councillor says nothing during the debate but votes against the bail hostel, under Clause 25 there could be no legal complaint of predetermination. That would be so even though, on the way into the council meeting, he announces to the television news cameras outside that he is not interested in what is going to be said at the debate. That would be a substantial change in the law and one very much to be regretted.
The two concerns that I have outlined are exacerbated because Clause 25 will apply not only to controversial
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I have received a letter from Mr Clive Lewis QC, who is the chairman of the Constitutional and Administrative Law Bar Association, a copy of which I sent to the Minister, expressing concerns very similar to those I have set out. I have also been informed by the Association of Council Secretaries and Solicitors that it, too, is very concerned that Clause 25 as currently drafted will lead to uncertainty and run the risk that serious cases of alleged bias could not be challenged in the courts.
I am very grateful to the Minister's officials for taking time to seek to explain to me the reasoning behind Clause 25 at a meeting last month. However, my concerns remain. This amendment would set out-I hope clearly-the principles stated by the courts so that local councillors and their advisers would be in no doubt that the prior expression of strong opinions is not prohibited by law. Even at this late stage of consideration of the Bill I hope the Minister will think again on this subject. I beg to move.
Lord Hart of Chilton: My Lords, my name is associated with this amendment and I support it for the following reasons. I believe it is common ground that councillors should not be prevented from or penalised for speaking their minds on the hustings. I do not accept the anecdotal evidence that if councillors speak out on an issue then they are banned from voting at a committee. If they are being given that advice then it is bad advice and it should be clarified. You do not need a statutory provision to do that.
A predisposition has always been permitted but not a predetermination. I think it is also common ground that decision-makers must approach their task with an open mind. They must listen and consider all the arguments and then reach a conclusion. It is self-evident, for example, that a Secretary of State who as a local MP has crusaded passionately against wind farms saying there are no arguments in their favour cannot decide an appeal against the refusal of a wind farm planning application. He must-and I am sure he would-recuse himself.
In the present case, in a much less exalted position but important nonetheless, a councillor who declares himself opposed to an application and states he is determined to vote it down ought not to pursue such a course up to and including the planning meeting. However, the Bill appears to provide a loophole for this by affording an opportunity for a councillor to state wholesale opposition right up to the door of the planning meeting and then to remain silent at the meeting itself nevertheless casting his vote. In such a case the provisions of the clause mean that clear evidence of bias, which that is, is impermissible evidence. That cannot be right. At worst this clause could, I fear, become a bigot's charter, which cannot be in the public interest.
The amendment offers a solution. It confirms the present position of predisposition but provides a potential sanction for predetermination if the circumstances permit. I emphasise that this does not prevent the crusader councillor from crusading. He can attend usbthe council meeting to represent his views but he must not, if his mind is made up before the meeting, participate in the voting on the decision itself. That must be left to those who come with an open mind to listen to all the arguments before finally coming to a decision. That is the law and it is in the public interest that it be upheld.
The current wording of the Bill does not do so. It could well be used as shield or a licence for bias and is bad policy because the clause applies not just to planning but to all functions of authorities, some even more sensitive, where greater restraint on strong expressions of view is called for. Cases of bias are extremely difficult to get on their feet. This clause makes it almost impossible because those who are biased will now remain silent during the committee's deliberations.
Baroness Eaton: My Lords, first, I must declare my role as an elected councillor. Councillors have long walked a difficult line; trying to engage in an open and rigorous debate with their communities ahead of key local decisions, without falling foul of the complex common law principles of predetermination. The Government's proposals in the Localism Bill offer welcome clarity by removing any presumption that a councillor has made a decision with a closed mind simply because they had previously explicitly offered a view, or inferred a view through their actions, about a decision they would subsequently make.
It is essential that councillors have the freedom to express their thoughts and views on an issue to the communities they represent. This is an important part of the dialogue between local people and their local democratically elected representatives, helping councillors to gauge levels of support for or against a view and to encourage communities to come forward with further evidence to inform decisions that matter to them. This is surely a key part of the big society we are striving to create.
This amendment would reintroduce confusion over where predisposition ends and predetermination begins when prior indications of a view have been made. Therefore it would continue to make it difficult for councillors to have those absolutely full and frank debates with local people on the merits of any decision.
There are a number of safeguards in place to uphold good decision-making in local government, from overview and scrutiny functions through to opportunities judicially to review irrational decisions. At the same time, this Bill is strengthening the requirements around registering and declaring interests to deter biased decision-making, and the local electorate will ultimately retain the power at the ballot box not to re-elect any councillor. I therefore cannot support this amendment.
Lord Sewel: My Lords, during my period in your Lordships' House, which now goes back far too many years, I hope I have been the personification of
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Missing from this debate so far is the fact that local government in the United Kingdom is significantly influenced by party groups and party group meetings. Something may be discussed in committee. Before the council meeting the various party groups meet and reach a collective decision. That decision is then whipped at the council meeting. That is the reality of day-to-day local government in the United Kingdom. I would like to know from both the noble Lord, Lord Pannick, when he sums up, and the Minister the extent to which both the clause as it is now and the amendment strike at that practice.
Baroness Hamwee: My Lords, the noble Lord, in my eyes at any rate, puts himself further on the debit side by describing his previous career as being on the debit side. Many of us regard our time in local government as a very great plus.
I realise I am being bold tangling with the expertise that has been brought to bear both by the two noble Lords who have spoken and have their names to the amendment and the authorities they have cited. I do not see in the clause the problem they describe-the possible extension from predetermination to predisposition. The word "etc" in the clause heading I can see might be a little confusing and possibly in Clause 25(1)(a):
I start by not being able to follow the noble Lords down that route. Are the important words not the ones that we debated at a previous stage, in Clause 25(2), "just because"? That subsection is not exclusive. It does not describe the only circumstances that might amount to predetermination but approaches from the other side. It says that if a decision-maker demonstrates or has done these two things-or has done the first thing and the matter is relevant to the decision-that does not of itself mean that he has predetermined; nor does it mean that he has not. That approach is much more effective than the one provided in the amendment, which seems to spell out all the circumstances that would amount to predetermination. I am sure that noble Lords have great imaginations, but I doubt whether any of us could imagine all the circumstances that need to be covered. I am afraid that I cannot support the amendment.
Lord Snape: My Lords, I am reluctant to intervene in the debate but do so having listened to the arguments for the amendment put forward so ably by my noble
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I take the view that both Houses of Parliament interfere far too much in local authority matters. I well understand the view that where planning matters are concerned the letter of the law should be laid down and followed. The previous Labour Government created a standards authority for local government, which quickly became bogged down. If you traded insults in a council chamber, a complaint was made to that body and all sorts of trivia were discussed at that level. I do not wish to tie the hands of local authority members more than successive governments have done over the years, but I am concerned about both the clause and my noble friend's amendment.
My noble friend is not just a lawyer-he advises lawyers, as well. He is doubly damned in my eyes, I have to tell him. But he did not define predetermination in speaking to the amendment. Like my noble friend Lord Sewel, I think that the Minister really ought to do so. I end as I began: tying the hands of local authority members is something that both Houses of Parliament have done over the years, in my view quite unnecessarily.
Baroness Gardner of Parkes: The noble Lord, Lord Pannick, always moves his amendments superbly, and I am fascinated by them, although I heard it elsewhere than in the Chamber this evening, and I apologise for that. But I think that he does not look at this matter from the point of view of people being elected. Ever so many people are elected simply because they have always had some pet subject that was very much of local interest, and that is what got them elected. Any of those people, under this amendment, will find themselves being accused or blamed for the fact that they fought in that way. I am thinking of the Member of the House of Commons, who was elected on the single issue about the hospital in Worcestershire, and elected not once but twice on that issue. Would we have all condemned him if he had shown a particular interest in the hospital in Worcestershire? It is unrealistic to believe that people could be completely opposed to something that they had fought for for years.
The other side of that is that anyone sitting on any planning committee should do so with an open mind. If they do not have one, they have no right to sit on that committee and they should declare it as such. That should deal with the matter, rather than this amendment.
I smiled when the noble Lord, Lord Sewel, got into a little bit of trouble for trying to use his native Bradfordian flat irony in your Lordships' House, which is something that I also get into trouble about for the same reasons. I sometimes think that we should run a campaign so that we have a means of telling Hansard to insert a smiley at appropriate places, but I suspect that that is a campaign that I will not win in my lifetime.
I regret the fact that I did not get involved more in this issue in Clause 25, as it now is, earlier in the passage of the Bill. It is not completely satisfactory as it stands, but I think that the amendment from the noble Lord, Lord Pannick, would make things worse. I shall explain why in a minute. I do so not from his position as an eminent lawyer who knows about things like predetermination, predisposition and perhaps predestination as well, I do not know-or perhaps not. I come from the point of view of how these things are now looked at in local government. What people have not really been talking about is that within local government there is a general belief at the moment that there are two types of issue. There are those that people say are in some way quasi-judicial, or involve things like appointments and disciplinary hearings, as well as planning and licensing, whereby the approach of councillors has to be less predisposed than on other matters. When I got back on the council eight years ago, I spent the whole election campaign speaking about the number of empty, boarded-up houses in my ward. I thought that the position had deteriorated appallingly in the six years I had not been a councillor. The electors actually agreed with me, for once. I have spent a lot of the eight years since then working hard on the council to do something about that problem. I am totally biased on this matter; I think that it is an appalling problem, and I campaign on the council and outside the council to try to solve it and make no bones whatever about that. But if a planning application came up in relation to one of those houses, I would step back and regard it and treat it as a planning application. That is quite well known within local government, although perhaps not as well known in some councils as it should be-but it is the case. Therefore, there is a problem here in that both the Bill and the amendment are broad-brush and do not make that distinction between different types of issue, which are certainly well understood within local government.
I have problems with the words predisposition and predetermination. It may be that in the courts of this land they are well understood, but I do not believe that most councillors would understand those words if you put them to them. The word that is more used in local authority government in relation to that kind of problem is fettering. Councillors are told that they must not fetter their discretion when it comes to things like licensing and planning applications. That is the word that is used-but fettering includes both predisposition and predetermination. The attempt to pull back from the straitjacket that councillors are in at the moment is well done.
I do not think that the position is well understood, as the noble Lord, Lord Pannick, said on Report and said again today, but one problem is that different
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All this did not originally come from the courts. I particularly noticed it because I was not a councillor for six years and during that time, between 14 and eight years ago, the whole regime changed. It came from decisions of the Local Government Ombudsman, where there were complaints that councillors had made up their mind on planning applications before the applications were dealt with. It also came from references to the standards authorities, particularly the Standards Board for England. That is where this whole regime within local government has come from.
The noble Baroness, Lady Gardner of Parkes, made the point that councillors are different because they are elected. Therefore, the regime that has to apply to councillors as opposed to other public officials and people serving on tribunals and so on is different because they are elected. Very often they have fought election campaigns and taken part in local campaigning. We have examples from around the country. A market town provides one classic example. A particular political party had campaigned vigorously against the redevelopment of a town centre that involved a big supermarket as the core of that redevelopment. All its councillors-the party had swept the board-were banned from taking part in the part in the decisions once they were elected because it was said they had fettered their discretion because they were part of a party which had won elections on that basis. Clearly there is a huge conflict here between local democracy and fair decision-making. Electors cannot be expected to understand that.
Regarding the amendment moved by the noble Lord, Lord Pannick, I would say that there is a lot of talk of bail hostels. As long as a bail hostel is small and is confined to an existing house, I do not think it needs planning permission. It is not a good example in that sense, but I understand the point made by the noble Lord. We have all had to deal with a very difficult application where a lot of residents have been strongly opposed to it, yet it has actually been right. That is when councillors have to gird their loins and do what is right. They do not always do it, but that is democracy.
I do not believe that even local authority lawyers will understand that sufficiently to give clear advice to their councillors, and councillors certainly will not
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are a recipe for a lot of lawyers to earn a lot of money when matters come to court to determine what they mean in the circumstances of a particular case. I do not believe it is a useful check on what one does in a particular circumstance that happens locally. Therefore, I do not think the amendment of the noble Lord provides clarity. In a practical sense, at a local level, it will make matters a lot worse, with no clarity.
The problem is that council lawyers are well known for being top of the league of people who err on the side of caution on pretty well everything. If the House were to pass this, it would result in no change to the present position, in which it is the councillors who are totally fettered from doing the job that people elect them to do.
The noble Lord, Lord Hart of Chilton, said that if councillors are given the advice that they cannot say or do anything or take part in any discussions before it goes to a planning committee, it is bad advice. All I can say is that if it is bad advice, it is universal bad advice. Given the choice of two not wholly satisfactory wordings, I very much prefer that of the Government.
Lord True: My Lords, if I might intervene, slightly more briefly, because I agree with so much that has been said by the noble Lord. I did not have the opportunity to take part in the debates on these clauses, although I have taken part in a lot of the proceedings on the Bill. I strongly agree with the objections that have been raised to the amendment. Perhaps it is not surprising, declaring again my interests as a local councillor and leader of a local authority, that it tends to be that some of us with experience of local government find ourselves ranged against the exacting purity of those who practise at the Bar.
Some may feel this is a function of the imperfection of local councillors. Imperfect, of course, we are. The point was made by the noble Lord, Lord Sewel, and others, that councillors are biased. They are elected to be biased. My electors would be extremely surprised if I were not, as the noble Lord, Lord Greaves, said, seeking to implement the policies on which I was elected. That reality has to be understood and respected.
The current situation is having a chilling effect on a lot that goes on in local government, a point referred to by the noble Lords, Lord Sewel and Lord Greaves, and others. Councillors are nervous about expressing opinions on a whole range of matters where there is no question of predetermination or predisposition and so forth. It is having a bad effect on local democracy because local councillors are representative-they are not very highly-paid volunteers to try and put the public's will into effect. They try their best.
I fear there is a growing inhibition on being able to speak out and speak frankly on questions. As the noble Lord, Lord Greaves, said, there is a clearly understood distinction between issues of planning
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refers to a decision as defined in the clause, which is any decision of the council. We are not just talking about planning applications; we are talking about committee meetings, sub-committee meetings, functions of the authority's executive and council meetings. The noble Lord, Lord Hart, conjured up in my mind the spectre of lawyers standing outside the council meeting saying, "You cannot go in and cast your vote because you said this on that a few weeks ago". It may sound humorous but that kind of thing could well happen. People are trawling the opinions of local councillors, seeing who is biased and seeing whether they can get people struck off. It is rather like one of those American films where they try to strike off members of the jury to make sure that the right result is achieved in a murder trial.
I am worried about the link between subsection (2)(c) of the amendment and its application to every possible decision that might be taken by a councillor. We do need severe protection of the law on planning, but in other areas please let councillors be biased; please let them respond to the wishes of their electors; please let them be like MPs and Members of your Lordships' House-people who are entitled to strong opinions. Let us not proceed with the chilling effect of this process of litigation and quasi-litigation that has actually occurred or may be threatened. I support the Government's attempt to set things right and to improve things. It may not be perfect, but I certainly prefer it to the amendment. I hope that your Lordships will not support the amendment.
Lord McKenzie of Luton: My Lords, we have added our names to this amendment, for reasons which I will try to explain. As I understand the Government's position, this provision is meant not to change the current position-they may confirm or deny this-but to clarify it, as the noble Lord, Lord Greaves, said. The problem in seeking to clarify it, for some of us at least, is that they have unbalanced it and made it difficult. The noble Baroness, Lady Hamwee, advanced the point that, as drafted, the "just because" was the get-out but I contend that if you have to ignore anything that the decision-maker has previously done with a view to a matter, directly or indirectly, there is not much else that that decision-maker could have done which could then be the subject of a challenge on predetermination.
Baroness Hamwee: My Lords, I was not intending to describe it as a get-out but to say that "just because" could also be read as "only because". Although those are not words that one would normally find in legislation, they are very helpful and descriptive in this context.
Lord McKenzie of Luton: I take that point but, even if it is "only because", what else might a decision-maker do that you have to take account of if you
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My noble friend Lord Snape asked: what is predetermination? As I understand it, predetermination is having a closed mind at the point when you make a decision. Is that not important, because if people are coming to local councils seeking decisions which they expect to be rationally made-whether on planning, licensing or anything else-are they not entitled to have a case that is properly made and not fettered by somebody ignoring all of that process at the point when the decision is made? That seems to be the key difference between predetermination and predisposition.
The noble Baroness, Lady Gardner of Parkes, said that people will always have their pet subjects, and there is absolutely nothing wrong with that. Predisposition means having a view that, other things being equal, this is what you support and this is what you do not, and it does not preclude you from having, for example, manifesto commitments. That is reflective of the current position. The problem with the clause, for some of us at least, is that it unbalances that decision. It may give clearer protections or guidance to councillors in respect of what they can and cannot do but it does not address the other side of that equation: the circumstances where somebody has a closed mind and would seek to exercise judgment on something when they should not. That seems very important to me.
Things are not helped by the demise of the Standards Board for England, which set out guidance on all of this, but I understand that there is also legal precedent and case law around all of this. My noble friend Lord Sewel raised the point about collective decisions. There is nothing wrong with a party group sitting around and having discussion on an issue. The key is that when you come to the point of making that decision-whether it is in the council chamber, the committee chamber or elsewhere-the mind is at least ajar. I think that was the terminology that was used.
The noble Baroness, Lady Eaton, said that councillors have long walked this difficult line, and she is absolutely right. I agree and, in our view, the line does not need to be changed. Yet the terms of this clause are potentially changing it and that is the problem we are seeking to address by this provision. Our position is as follows: we support the proposition that those who have a closed mind on an issue should not participate in decision-making and could invalidate it if they did. We understand that this is also the Government's position, from debates on previous stages of the Bill where we have had amendments around this. It may be particularly relevant to planning and to other decisions as well.
We differentiate predetermination from predisposition and understand that the Government also do that. Having clarity on the scope and protections that this gives to councillors is to be encouraged but issues of a closed mind or otherwise are properly to be assessed when formal decisions are to be taken. We understand that this is also the Government's position. The problem is that, in framing the scope and protections for local councillors, there must not be opportunities for those with closed minds to have their actions and utterances
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If it is right that we agree on those propositions about the difference between predisposition and predetermination-determined at the point when the decision is made-we should be focused on how we achieve the legal construct that deals with that. That is the real matter before us and the matter in this amendment. In this regard, we consider that the amendment moved by the noble Lord, Lord Pannick, which is also in the name of my noble friend Lord Hart, achieves those objectives. However, we are very clear that the clause as it stands makes things worse and muddies the waters on principles and issues that I think we are not apart on.
Earl Attlee: 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,
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
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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
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Lord Pannick: I am very grateful to noble Lords who have spoken in this fascinating debate and to the Minister for his detailed response. I shall respond briefly, attempting to avoid any indication of exacting purity that may offend the noble Lord, Lord True, or indeed any other form of reprehensible purity on this matter.
The Minister indicated that there is nothing wrong with the common law rules, and I respectfully agree with him. The problem, the Minister said, is the erroneous advice that is being given to local councillors up and down the land. The problem with that analysis is that, if the advice is the erroneous advice, we should deal with that advice. Let us not amend the common law in a way that changes the current position-and changes it by excluding from relevance the legal material that can demonstrate that there is unlawful predetermination.
Earl Attlee: May I explain the advantage of Clause 25 and the way that it is drafted? If I was a councillor and engaging, as a layman, with officials who were giving me advice, I would be able to produce the words in Clause 25 and say, "It says here that I can express a view", and there would be very little that officials could do to counteract that.
Lord Pannick: I understand the point and am grateful to the Minister. However, the clause introduces clarity by amending the common law, which the Minister is concerned to maintain. The clause does not maintain the existing common law rules, which the Minister considers entirely adequate. The clause excludes from consideration anything that is said or done prior to the council meeting at which the issue is to be discussed, however extreme the previous statement may be. I entirely accept that what the councillor said prior to the council meeting may not be determinative of whether there is unlawful predetermination, but it must be relevant. That is the objection to Clause 25: it purports, in the Minister's words, to restate the common law, which the Minister regards as entirely appropriate and unexceptionable. What it actually does is amend the existing common law in a way that will prevent real cases of predetermination being brought and succeeding.
Real concern was expressed in this debate that it is absolutely vital that local councillors should be able to express their views on matters powerfully and strongly if they wish. The noble Baroness, Lady Eaton, and the noble Lords, Lord True and Lord Greaves, made this point. I entirely agree with them that that is the
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The noble Lord, Lord Sewel, and the noble Lord, Lord Snape, asked for reassurance in relation to the role of party groups and party whips in local government. That, too, has been considered by the courts. In the same case of Lewis v Redcar and Cleveland Borough Council, the Court of Appeal approved an earlier judgment in 1985 by the noble and learned Lord, Lord Woolf-then Mr Justice Woolf-where he said:
"I would have thought that it was almost inevitable, now that party politics play so large a part in local government, that the majority group on a council would decide on the party line in respect of the proposal. If this was to be regarded as disqualifying the district council from dealing with the planning application, then if that disqualification is to be avoided, the members of the planning committee at any rate will have to adopt standards of conduct which I suspect will be almost impossible to achieve in practice".
Lord Greaves: I apologise for intervening, but I wonder whether the noble Lord is aware that there is a very widespread view within local government, which in my view is widespread in its application, that on things that are thought to be quasi-judicial like licensing and planning applications there is no party whipping. There may be discussions, but no party whip is applied.
Lord Pannick: I understand that, of course; I am responding to the point made that if our amendment were to be carried, this would in some way affect the existence of that whipping that does take place in local government-those elements of party control that are effective. Let me just complete the citation from Mr Justice Woolf: he concluded that there is no objection to any of this so long as, when the councillors come to the council meetings, they have an open mind in the sense that they are prepared to listen to the competing arguments.
The noble Lord, Lord Greaves, was rightly concerned that we should do nothing that should enable lawyers to make lots of money out of all this. That is a very laudable objective. My concern is that Clause 25 is so unclear that it will inevitably provoke litigation, and it will do so because the Minister says that it is not changing the common law but merely expressing it, whereas its terms manifestly do change the common law.
Lord True: On the question of litigation, will the noble Lord answer the point that my noble friend Lord Greaves and I made? If we are concerned about litigation, surely the construction of his proposed new subsection (2)(c),
which may, as construed with the rest of the section, apply to any decision of any form made by a councillor, is pretty ripe for litigation. Therefore, I do not think his argument that the Government may cause more litigation stands up. Let him answer on this one.
Lord Pannick: My answer to the noble Lord is that paragraph (c) is simply designed to maintain-as the Government say they wish to maintain-the existing common law principle, which is that the judge will indeed look at all the circumstances of the case and decide whether there has been unlawful predetermination. I am not seeking to change the common law position; I am seeking to maintain it. The Minister has the same objective; he does not have the objective-as I understood him-of changing the substance of the common law. The objection to Clause 25 is that, on its wording, that is precisely what it will do, or there is a real risk it will do that. That is why it needs further consideration.
Lord Sewel: Could the noble Lord explain how his amendment would affect, for example, the situation where, a councillor at a committee meeting having argued very strongly on one side but the party group having met and decided collectively on a different position, the councillor then says, when approached immediately before the council meeting, "I am changing my vote", and, when asked why, says, "That was the decision of the group and I accept it" and then goes into the council meeting and votes in accordance with the decision of the group? How would the amendment address that issue?
Lord Pannick: The amendment would address that issue by dealing with the question in the same way as the common law deals with it at the moment. No judge is going to accept that there is unlawful predetermination simply because a local councillor has followed the whip that is imposed by his own party or his own group. This happens day after day in local government, and there are no cases that can be pointed to in which the courts have said that that is unlawful predetermination. It is not unlawful predetermination because the local councillor has listened to the matters addressed in the local council meeting.
We are dealing with a phantom problem that is created by erroneous advice being given, or is said to be given, to local councillors up and down the land. We are dealing with it in Clause 25 in a way which is going to make the problem far, far worse; and it is for that reason that I wish to test the opinion of the House.
"(1A) In discharging its duty under subsection (1), a relevant authority must, in particular, adopt a code dealing with the conduct that is expected of members and co-opted members of the authority when they are acting in that capacity.
(a) may comply with subsection (1A) by adopting the code adopted under that subsection by its principal authority, where relevant on the basis that references in that code to its principal authority's register are to its register, and
(b) may for that purpose assume that its principal authority has complied with section 28(1) and (1A)."
Baroness Hanham: My Lords, I should also like to speak to Amendments 5 to 9, 11 to 13, 68, 74 and 75. We had an extensive discussion on Report on the provisions dealing with local authority standards. It was obvious from the strength of feeling exhibited that noble Lords considered this matter to be important and worthy of careful consideration.
There was much common ground in that debate. Everyone in this Chamber agreed about the importance of maintaining the highest standards of conduct in local authorities. There was also broad agreement that the Standards Board regime has become a vehicle for vexatious, petty and politically motivated complaints, with more than half the allegations of misconduct being rejected when assessed.
At the same time, concerns were voiced that the provisions that we had set out to deal with local authority standards after the abolition of Standards Board regime were too localist and not up to the task of ensuring the high standards of conduct that we expect of local authority members. We undertook on Report to take those concerns away and see whether we could strengthen the provisions to address the concerns. Over the past few weeks, we have reflected carefully on that debate and had extensive and useful discussions with noble Lords on their concerns.
As a result of that, I am bringing back a package of amendments to modify the standards provisions in the Bill. All authorities will be required to have a code of conduct. Amendment 4 would put that in place, and local authorities must, as part of their duty to promote and maintain high standards of conduct, have a code of conduct. This requirement applies to parish councils as well as to principal authorities. That code of conduct must be in accordance with the Nolan principles of public life. Amendment 5 states that a code of conduct adopted by a local authority should be consistent with the seven Nolan principles: selflessness, integrity, objectivity, accountability, openness, honesty and leadership.
The code of conduct will, in addition, have to include the requirement for members to register and disclose interests. Amendment 5 provides that the code of conduct must include the requirement for members to register and disclose their pecuniary and non-pecuniary interests. Noble Lords will recall that under Clause 34 a member will be committing a crime if, without reasonable excuse, they fail to declare or register a pecuniary interest or if they knowingly or recklessly provide false or misleading information about that pecuniary interest.
Further, under Amendment 8 all local authorities will have to put in place a system to deal with allegations that members have breached the code. We are not going to dictate to them what those arrangements should be. They could, for example, continue to have a voluntary standards committee or they could adopt an alternative approach, but they must have in place arrangements as I have outlined.
To ensure that there is a strong independent element in these new arrangements, Amendment 8 also provides that a local authority must appoint an independent person through a transparent process and that, where a local authority has investigated an allegation, it must seek the independent person's view before reaching a decision about the allegation. It must then have regard to that view. We believe that this will ensure that there is a check on vexatious or politically motivated complaints.
In addition, we have provided that a person against whom a complaint is made may also seek the views of the independent person. This will ensure that if a councillor feels victimised or pressured by a member or members of the council or the authority, he or she can have access to the independent person for a view.
In an investigation, where a complaint was dismissed, that would be the end of the matter. Where a complaint was upheld, a council would then have a number of options open to it under existing provisions. These are not there by amendment; they are existing provisions. In relatively minor cases, the council might conclude that a formal letter or other form of recording the matter was appropriate. Where a case involved a bigger breach of the rules, a council might conclude that formal censure-for example, through a Motion on the floor of the council-was required. In more serious cases of misconduct, the council might go further and use its existing powers to remove the member from the
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The requirement for an authority to have a code of conduct applies to parish councils as well as principal authorities. However, recognising the administrative limitations of parish councils, the relevant district or unitary council will administer the scheme for them. I beg to move.
Lord Bichard: My Lords, in speaking to this group of amendments, I draw attention to my own Amendment 10. I rise mainly to pay tribute to and thank the Minister for the constructive and very helpful way in which she has entered into discussions following the amendment that I tabled on Report, together with the noble Lords, Lord Tope, Lord Newton and Lord Filkin. Unfortunately, the noble Lords, Lord Filkin and Lord Newton, for very good reasons, cannot be here tonight, but they both specifically asked me whether they could be included in the thanks for the constructive approach that has been taken.
I shall not waste the time of the House by running over the ground that the Minister has already covered. I think we now have a package that is much better as a result of all our efforts, and this is now a very important part of the infrastructure of local government. As the noble Baroness knows, simply for the sake of clarity and comprehensiveness, I would have liked to have had a specific reference in the Bill to the power to suspend from a committee. However, I am grateful to her for having referred specifically to the powers that already exist, and I think that that, too, will help to clarify the situation. Therefore, all in all, I am very grateful for the help that she has provided. I know that sometimes she has had to act in the face of considerable opposition. I shall go no further than that, but I think that we have reached a place with which I feel content and, again, to save the time of the House, that means that I shall not be moving my Amendment 10.
Lord Tope: My Lords, I follow my noble friend with a small "f"-the noble Lord, Lord Bichard. As he said, we moved a number of amendments at an earlier stage of the Bill and I, too, pay tribute to the Minister for listening so carefully and for taking so seriously the points that we made. The apologies of my noble friend Lord Newton have already been given, but I specifically undertook not only to give his apologies-a hospital appointment prevents his being here-but to pass on his warm thanks to the Minister. Those thanks are perhaps not so much for the extent to which she has moved but for the extent to which she has been able to move those close to her during the proceedings here.
I think that we have moved a very long way from the position that we were in in Committee, when the person replying on the Front Bench said that standards were a matter for local discretion. I am probably one of the greatest localists in your Lordships' House, but I thought at the time, and feel very strongly now, that if there is one thing that should not be left to local
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I am very pleased that we are going to have a mandatory code-or, rather, that it is going to be mandatory to have a code-but I am a little sad that its minimum provisions are not to be the same throughout the country. I think that in reality they will be the same throughout the country, because my expectation is that the great majority of local authorities will simply keep the code that they all already have. My concern relates to what I hope will be a tiny minority of councils that decide not to keep the code that they now have, and it relates more particularly to why they make that decision and in what way they might change it. That leads me to ask the Minister whether there will be any form of monitoring, whether by her department or by the Local Government Association, so that we know what changes are happening throughout the country. There may well be some that are a cause for concern. What we do about them may be another matter, but we should at least know about them.
The noble Lord, Lord Bichard, has already told us that he will not be moving his amendment, but my other concern is that councils now have, and will retain, the power as a sanction, if necessary, either to remove councillors from certain committees or sub-committees or simply not to appoint them. Will that also apply to outside bodies, as all councils appoint councillors as their representatives on outside bodies? Will they now also be able to remove a councillor from an outside body to which the council has appointed him or her?
Many councils, including my own, also have local committees or area committees that are constituted and stated in the council's constitution to comprise all the councillors elected for that area. Presumably there is a power now to remove them from that area committee. Is that the case, and how does that fit with the constitution of the council, which says that all councillors representing that area have a right to be on that committee?
My other concern is about the form of monitoring-I do not mean imposition, but monitoring-there will be to let us know what is happening under the new regime. I certainly am grateful to the Minister for moving us so far on this, but quite a number of us are still concerned about this issue and feel that we are not there yet-well, we are there but this is not perfection and we may well have to return to the issue in the years to come after a number of high profile cases.
My last point is to welcome the lengths to which Ministers have now moved in the appointment of an independent person and in trying to ensure as far as possible that that person is genuinely independent and open. That independent person now plays an even more important role, in effect being the right of appeal-the only appeal that a councillor has-against what he may well feel is the unfair victimisation by a council with a heavy one-party majority, whatever the party, of someone who is a thorn in the flesh but is not necessarily doing anything improper. Again, it is important that the independent person, as far as it is ever possible, is upheld to be genuinely independent.
I join others in very much paying tribute to the Minister. I know from other sources how hard she has had to work at times to persuade more reluctant colleagues of the necessity to move in this direction. I congratulate her on her persuasive powers and the success that she has achieved. As my colleague, the noble Lord, Lord Bichard, said, we do not have all that we want but we have a lot more than we thought we would get at an earlier stage in the Bill, and I am grateful for that.
Lord Shipley: My Lords, I want to raise a specific issue, but first to declare an interest as a councillor and one-time member of a standards committee. I welcome the amendments because they move us towards a system that is proportionate, will protect the right to free speech, give confidence to the general public, be fair to an individual councillor and should prevent party-political prejudice leading to unjustifiable and unreasonable decisions. The introduction of the independent person-or at least one independent person-seems to me to be a major help in enabling us to abolish the Standards Board for England so that matters can be dealt with locally and we can remove the need for a national referral system.
My one remaining doubt is on how the decisions on allegations will be made. That relates to subsection (3). The Minister said that all local authorities would have to have a form of process for investigating and determining matters relating to breaches of the code of conduct but it is for them to decide what those processes should be. I hope that guidance will be given requiring a local authority to have a formal committee structure to achieve this. Otherwise, it is not clear how that will be delivered. If there is to be a formal committee structure, in my view it should be chaired by an independent person but not necessarily the same one who is the independent person referred to in other subsections. In addition to having an independent chair, there will be independent members, as now, along with sitting councillors. Then the whole council will be able to decide on any suspension from committees that might be recommended.
I believe that because it is extremely important to avoid any perception or possibility of party-political bias in reaching a decision. Standards committees with independent members seems to be a means of preventing what may appear to the general public to be party-political decisions being made. Therefore, pursuing independence at a local level through the independent person and independent members of standards committees is extremely important.
Lord True: My Lords, I am rather more sympathetic to the Government's attempt to find a formulation than some of the demurrers and I congratulate my noble friend on finding an admirable way through. That is another example of the way in which she has conducted the Bill. If I may help my noble friend Lord Tope, surely the answer to the question of committees or bodies to which councils mandate members is that in the first instance questions of misconduct must come from those bodies themselves, to which the people are mandated. It seems inconceivable that
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My noble friend Lord Shipley raised a point on subsection (3). I rather like that subsection although I agree with my noble friends Lord Shipley and Lord Tope, and the noble Lord, Lord Bichard, that there has to be some sense that there is independence. Often these matters can be dealt with by arbitration and a sensible person who will put two people together. It is clearly sensible, as my noble friend Lord Shipley says, that we may need to get two committees. However, there may be things that can be dealt with more effectively without getting to that process, but giving everybody along the way the sense that they can go to an independent body. I would not want my noble friend to be much more prescriptive, but I agree with the sense of what my noble friend Lord Shipley said. We have found an admirable way through and I congratulate the noble Lord, Lord Bichard, and others who have contributed to it.
Lord Beecham: My Lords, I declare an interest as a member of a council-hence my straying into jargon that we apply in council debates-a member of the standards committee, which meets later this week, and vice president of the Local Government Association. I join other of your Lordships in extending warm congratulations to the Minister who is clearly responsible for, and indeed embodies, an outbreak of sweet reasonableness over this issue that we hope to be pursued by some of her ministerial colleagues when we come to other legislation after this evening's proceedings.
Like other noble Lords, I believe that there are issues that one might have wished to have taken a little further. A mandatory code would have perhaps been preferable. As the noble Lord, Lord Tope, indicated, in all probability we will end up with something like that. I hope that the Local Government Association, with others, will draft something that will be useful and will be adopted by many local authorities. It is very important that this independent role should be reflected. I agree with the noble Lord, Lord Shipley, that mandatory committees, perhaps with that independent element, would have been preferable. Nevertheless, we have gone a long way forward since the original Bill and our earlier discussions on Second Reading, in Committee and on Report. For that we are clearly indebted to the Minister.
I am not quite so sure about the sanctions that are available and whether they are sufficient to meet some of the more serious cases. A huge range of cases has applied at national and local level. I note that people from all political groups have transgressed, sometimes quite significantly. A prominent Conservative ex-leader of a council was found to have leaked a confidential document related to a land sale and was suspended for 28 days by his council. A Labour deputy group leader was also found to have breached confidentiality in relation to a compulsory purchase order. These are not insignificant issues, and they are not personal issues either. He was suspended for three months by
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However, I wonder whether suspension from a committee or even removal from outside bodies is necessarily sufficient for the more serious types of case. We clearly cannot pursue this further tonight, but it may be that over time, and bearing in mind that we need to see how this works in practice, we might have to revisit that element. Another place has quite draconian powers of discipline. I am not quite sure that they are quite as draconian in this place, although there are matters currently under consideration of a very grave nature and one hopes that one would not see anything like that again in your Lordships' House. It may be therefore-given that the national framework has been dismantled and that there may still, unfortunately, be a few cases where really serious misconduct occurs-that one must wonder whether the sanctions currently available and reflected in the amendment tabled by the noble Lord, Lord Bichard, are adequate. We have clearly moved on and I am grateful and pleased that we have achieved this. I congratulate the Minister and the noble Lord, Lord Bichard, and thank them for the work they have done on this matter.
Baroness Hanham: My Lords, I thank everybody for the very kind compliments. It is unusual to hear them, so I am basking a little bit. I am also grateful to the noble Lord, Lord Bichard, who fought very hard with the noble Lord, Lord Filkin, to make sure that we took this matter on board. He has been very persistent and was gracious in saying that he will not move his amendment.
We think that these procedures will have a real impact on the conduct of local councillors. While not spelling out how councils should put a scheme in place, it is clear that they have to. They must have some means of dealing with complaints. It seems almost inescapable that if you are going to do that, you are probably going to have to have some sort of committee structure to deal with them. That would be fine if local authorities decide for themselves, but to be fair and independent, they will need to have a balance.
I do not think that anybody has misunderstood. However, I want to make it clear that whatever the system and whether local authorities have independent members in that committee structure, they will still be required to have a further independent member who will act outside the committee system and will have to be referred to.
The noble Lord, Lord Tope, asked about the monitoring of the process. From the Government's point of view, there will not be any further monitoring. It is possible that the Local Government Association will want to know what is going on, but unless things
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I have been asked questions about representation on outside bodies. I think the answer must be that where the council is appointing somebody to another body, if there is a complaint about the councillor, the council is still responsible for them so it would be able to take action against them.
The other aspect that must be clear is that this has to be a transparent process. Each step must be open to comment and it must be dealt with openly. If there is a complaint that results in a warning or a letter, that must be clear so that local people who have elected these councillors know exactly what has happened or can find out. Some of the sanction will therefore be imposed by the electorate. They will know that somebody has transgressed or offended before they chose to re-elect him. The day-to-day monitoring will be carried out under the transparency of the decision-making process. The noble Lord, Lord Shipley, mentioned the decision on allegations. I hope that I have covered that. If not, I will talk to him subsequently.
(a) pecuniary interests, and
(b) interests other than pecuniary interests.
(1C) A failure to comply with a relevant authority's code of conduct is not be dealt with otherwise than in accordance with arrangements made under subsection (3); in particular, a decision is not invalidated just because something that occurred in the process of making the decision involved a failure to comply with the code."
(a) arrangements under which allegations can be investigated, and
(b) arrangements under which decisions on allegations can be made.
(a) whose views are to be sought, and taken into account, by the authority before it makes its decision on an allegation that it has decided to investigate, and
(b) whose views may be sought-
(i) by the authority in relation to an allegation in circumstances not within paragraph (a),
(ii) by a member, or co-opted member, of the authority if that person's behaviour is the subject of an allegation, and
(iii) by a member, or co-opted member, of a parish council if that person's behaviour is the subject of an allegation and the authority is the parish council's principal authority.
(a) a person is not independent if the person is-
(i) a member, co-opted member or officer of the authority,
(ii) a member, co-opted member or officer of a parish council of which the authority is the principal authority, or
(iii) a relative, or close friend, of a person within sub-paragraph (i) or (ii);
(b) a person may not be appointed under the provision required by subsection (3A) if at any time during the 5 years ending with the appointment the person was-
(i) a member, co-opted member or officer of the authority, or
(ii) a member, co-opted member or officer of a parish council of which the authority is the principal authority;
(c) a person may not be appointed under the provision required by subsection (3A) unless-
(i) the vacancy for an independent person has been advertised in such manner as the authority considers is likely to bring it to the attention of the public,
(ii) the person has submitted an application to fill the vacancy to the authority, and
(iii) the person's appointment has been approved by a majority of the members of the authority;
(d) a person appointed under the provision required by subsection (3A) does not cease to be independent as a result of being paid any amounts by way of allowances or expenses in connection with performing the duties of the appointment.
(a) that a member or co-opted member of the authority has failed to comply with the authority's code of conduct, or
(b) that a member or co-opted member of a parish council for which the authority is the principal authority has failed to comply with the parish council's code of conduct.
(a) the other person's spouse or civil partner,
(b) living with the other person as husband and wife or as if they were civil partners,
(c) a grandparent of the other person,
(d) a lineal descendant of a grandparent of the other person,
(e) a parent, sibling or child of a person within paragraph (a) or (b),
(f) the spouse or civil partner of a person within paragraph (c), (d) or (e), or
(g) living with a person within paragraph (c), (d) or (e) as husband and wife or as if they were civil partners."
"(b) members of a designated neighbourhood forum under section 61F of the Town and Country Planning Act 1990"
Lord Beecham: My Lords, this amendment deals with another issue of standards, but of a rather different nature. It relates to the position of members of the neighbourhood forums which the Bill establishes and which, of course, will have the responsibility of initiating, potentially, local plans which will be, it is hoped, a significant part of the planning process. Originally, as your Lordships may recall, the Bill proposed that such forums could be constituted by a mere three individuals. That has been expanded sevenfold and now 21 individuals can constitute themselves into a neighbourhood forum and may be involved in the process thereafter that gives rise to a local plan.
There is effectively no restriction on those who might constitute this forum, and it may well be that in some cases they would have interests. They might be interests as residents or landowners in the area, or they might be as employees of a concern wanting, for example, to open some facility such as a shop. They might be employees or participants in such a business. As matters currently stand, there would no obligation for any of those interests to be disclosed. I would have thought that in the interests of transparency, they
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The amendment provides a safeguard to avoid a situation where, effectively, a community might find itself being manipulated by particular interests without being aware of what those interests were. I hope that the noble Baroness will look again at this matter. This is the last opportunity, of course, in this place for that to be done. I cannot really see any strong argument against extending that degree of transparency in as sensitive an area as planning to these new forums, in the same way as would apply to members serving on a planning committee of the local authority, or indeed the parish council-given the scale, it is more like a parish council, obviously. Equally, those interests should be declared. I believe it would be consistent with the general approach that the Bill adopts in these matters for that to be the case. I beg to move.
Lord True: My Lords, I am sorry to say that I have a lot of sympathy with the spirit behind this amendment, but having wearied the House with my views on neighbourhood forums and not having been able to persuade my Front Bench fully about this question, I think that noble Lords opposite will know that my view is that we should start from the assumption that the neighbourhood forum includes everybody in the neighbourhood area. In those circumstances, if the neighbourhood forum is very large, I do not think that the kind of amendment that the noble Lord, Lord Beecham, has proposed would be practicable. I do not think that we could ask everybody who lives in a village or in a neighbourhood area to publish their interests simply because they wanted to participate in a neighbourhood forum.
If, however, it emerges-and I think we have to wait and see the guidance on the Bill-that my maximalist view of what a neighbourhood forum should be does not prove to be the case, and if the neighbourhood forums turn out to be rather small bodies of perhaps only 21 individuals wielding a great deal of influence in the name of the community, then I would find the arguments of the noble Lord, Lord Beecham, quite persuasive. As we gain experience going forward of what these bodies are actually going to be-whether they are small or big-this will affect the judgment that I would make about this question. I would suggest, however, that this is something that we might leave until we see further guidance on the Bill. I am sure it would be a matter that might be addressed then. If 21 people are going to be very influential in an area, I would like to know where they were coming from, and I am sure local people would, too.
Baroness Hanham: My Lords, Amendment 14 would require local authorities to maintain a register of the interests of members of designated neighbourhood
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A neighbourhood forum is designated by a local authority for the express purpose of preparing a neighbourhood plan or order for a designated neighbourhood area. The neighbourhood forum will not make decisions on planning applications or on whether a neighbourhood plan or order should come into force, nor will it take on wider duties and responsibilities. Neither is the neighbourhood forum intended to form an equivalent governance function to that of a parish council. The neighbourhood forum is simply a group designated by the local authority to prepare a neighbourhood plan or order.
We have worked hard to ensure that the Bill reflects this position by imposing minimum requirements that community groups must meet in order that they can be designated as a neighbourhood forum. This will enable existing groups to take a leading role in neighbourhood planning. To avoid forums acting inappropriately, the Bill gives local authorities the power to remove the designations of neighbourhood forums in certain circumstances. In addition, requiring their members to register and declare interests would be unnecessary. Since the forum is similar to a planning applicant submitting a planning application to the local authority, it is not making a decision in the public interest.
Furthermore, in practical terms, maintaining a register of the interests of neighbourhood forum members would be extremely difficult for the authority to achieve, given the wide range of individuals who could be members of a neighbourhood forum and the likelihood of frequent change in the forum's overall membership throughout the process of preparing the plan or order. The Bill requires all neighbourhood forums to include, as I said, at least 21 members who live or work in or are elected members of the neighbourhood area and to have an open approach to their membership.
In addition, of course, there was the requirement that we put into the Bill-I think at Report stage-that there should be consultation before any plan is put to the local authority. I hope that Members will accept this view and not push this amendment today.
Lord Beecham: My Lords, I am grateful for the conditional support of the noble Lord, Lord True, which I occasionally receive. I quite take his point, and I also listened carefully to the Minister. I think that the noble Lord, Lord True, is right, and this may be an issue to be revisited at a later stage. I am not entirely sure that we will in fact have large neighbourhood forums. I think the surveys that have taken place so far indicate that there is not-at the moment, at any rate-a huge appetite for the formation of these things. Therefore, we may be in the position where they tend
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Lord Beecham: My Lords, there have been significant changes wrought by this Bill. One of those that we debated in earlier days was the abolition of the duty to promote local democracy, which I thought was somewhat inconsistent with the general localist agenda. That elicited little or no support on the Benches opposite and did not seem to me to be worth while bringing back at this stage. However, in respect of another issue, which was the provision about petitions, it does seem to me that the case for some provision-as opposed to the elimination which Clause 46 of the Bill would have carried through-has been heightened by at least two recent developments.
The first is the changes in the Bill around the issue of democratic engagement. I very much welcome the withdrawal of the proposals for local referendums, which I thought were misconceived, overelaborate and calculated to produce a great deal of mischief and trouble. Nevertheless, they were a form-and in my view a very unsatisfactory form, and I think that has ultimately been accepted by the Government themselves-of promoting public engagement. This still leaves the issue of how one does promote particular forms of public engagement.
In another place a week ago, there was a diverting evening using the petition process which the Government have initiated to debate rather grander matters, I guess, than will normally be the case at the local level. Of course, the Government have proceeded with their electronic petitioning and the right of the other place to debate matters that receive a significant degree of support-a policy which may not have entirely produced the results anticipated last week and which some members of the Government may even have cause to regret. At any rate, the procedure is there.
For some time, in some councils, there has been an approach which has welcomed, and indeed encouraged, the bringing of petitions and discussion of them. Looking back, about three years ago the New Local Government Network, which is not a partisan organisation-it has councils in it that are controlled by all three major parties and indeed some independent members-advocated a proposal for a more defined process for bringing petitions. That proposal was, in almost the last gasp of the previous Government, embodied in legislation which, as the noble Lord, Lord Shutt, pointed out in his typically robust fashion was somewhat overelaborate, to put it mildly, and that certainly was the case. I think the legislation was
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Nevertheless, although a significant number of councils have a process to facilitate the bringing of petitions and their consideration, it is by no means universal. It seems to me important that there should be an obligation on local authorities to foster that kind of engagement with the communities they represent so that matters can be brought to the attention of the council and discussed in whatever form the council decides is appropriate, on the basis of the basic requirement that Amendment 49 would create, of having a scheme under which the petitions might be considered. This would also include another right that was brought into being by the previous Government, the right to call an officer of the council to account, in a properly structured way.
This is not an overbureaucratic process. As I say, many councils have their own procedures now. Mine certainly does; I dare say the councils of the noble Lords, Lord True and Lord Tope, and perhaps even that of the noble Lord, Lord Greaves, will have similar procedures. However, it is not universal, whereas it seems to me that it should be, so that any number of people-the council may lay down a minimum if it chooses-would know that they have the right to have matters raised at the level of the local authority, not just with their individual councillors, although that is always an option, but in a more systematic way.
The amendment also provides for a simple enough procedure for the council to give an account of what happens to those petitions, so they do not just disappear into a black hole. That certainly is the case in my own authority and I suspect in many others, and all there really needs to be, perhaps even just once a year, is a brief summary of what matters have been raised and how they were dealt with, so people can know that their views and concerns have been taken care of. It is not a huge obligation and would contribute to a healthier relationship between a local authority and its members on the one hand and the community on the other. I hope that even at this late stage the Government will have second thoughts. I beg to move.
Lord True: My Lords, that is a nice try by the noble Lord, Lord Beecham, but I am afraid I am going to be conditional in my support again. Petitions are important and he is quite right to say that my own authority considers them: tomorrow night we have a debate on a petition from the public; and there are two running petitions, both with over 2,000 signatures, which I am sure will lead to debates at future council meetings. I agree that it is good practice for local authorities. I do not think the Government are withdrawing from encouraging that but it would be a pity if they were.
I have not had time to study the details of his new clause so for that reason alone I would find it hard to support it. However, I am slightly worried about the concept of public petitions calling an officer to account. All those who have been in positions of authority in local government will know the amount of, frankly, sometimes libellous and hostile comment one gets
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Lord Tope: My Lords, neither the noble Lord, Lord Beecham, nor the noble Lord, Lord True, were Members of your Lordships' House when some of us spent many happy hours-hours and hours-dealing with what I think was the first part of what was then the Local Democracy, Economic Development and Construction Bill. We argued for hours about petitions and petition schemes. I recall my noble friend Lord Greaves-who I think I have just managed to shut up for a few moments-actually bringing in some petitions to his council so that we could see that they are rather different from petitions that come to Parliament in their general layout and form.
We had a very listening Minister then who listened and indeed made many amendments to what was proposed, but we were still left with pages of prescription about how councils should collect, receive and deal with petitions. We heard that most councils did not have such a scheme. What actually emerged, and it was a legitimate criticism, was not that most councils did not have a scheme but that most councils had not thought to put it on their website, which of course they should, but that is rather different from saying that councils do not receive or deal with petitions.
I have much sympathy with much of what the noble Lord, Lord Beecham, said in moving his amendment. The crucial difference between us is that I believe he was talking about good practice and I do not believe, especially in a Localism Bill, that it is for your Lordships' House to be prescribing in legislation what should be disseminated as good practice. I still bear the scars of the Local Democracy, Economic Development and Construction Bill, and that, I am afraid, tempers very considerably the sympathy with which I listen to the noble Lord, Lord Beecham.
Lord Greaves: My Lords, I will just add a few brief things. My noble friend reminds me of one or two things which I had thankfully forgotten about. I was trying to remember how many amendments I actually put to this chapter of that Bill when it came. That is also something I had forgotten about, which is something that happens.
The noble Lord, Lord Beecham, quite rightly said that councils have to welcome and encourage petitions. But what is really important is the seriousness with which they treat them and deal with them when they come. You can set up as many bureaucratic, complex, legalistic schemes as you like, but if people do not treat the petitions seriously it is just going through the motions and wasting time and energy. If people treat petitions seriously you do not need a complex, bureaucratic, top-down-and, I have to say, pretty patronising-piece of legislation like Chapter 2 of
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This is eight pages of primary legislation telling councils in great detail how to deal with petitions. I, along with my noble friend, pay tribute to the Minister at the time, the noble Baroness, Lady Andrews, who listened to a great deal of what we had said-it was 12 pages of nonsense before we started, and between us we managed to persuade the civil servants and the powers that be in the then Government at least to take some of it out. As I told the noble Baroness at the time, if the Government simply want to tell councils to have a scheme for dealing with petitions that deals with them seriously, they could do so in half a page of legislation, not eight pages. I have been through this and reminded myself of the huge amount of nonsense in it. I will not detain-or should I say entertain-your Lordships' House with any more of this tonight, but it really does deserve to go.
The one point that I will raise relates to Section 16 of the 2009 Act, which is the requirement to call officers to account. I do not know how often, if ever, this has been used since this part of the Act was commenced. At the time, we had a long debate, and in our view it was totally inappropriate for officers of the council to be hauled up and held to account before the public in this way. The people who should be held to account are the elected councillors: those who run the council and who have been elected by the people to be responsible and accountable to the people. Clearly, they will need support from officers, and if officers are not performing their jobs properly, the elected councillors are the ones who should take a grip of the situation and sort it out. That is a fundamental principle, in our view, but we could not persuade the Government at the time that that was the case. I am delighted that my noble friend Lord Shutt is, I assume, going to resist this amendment.
Lord Shutt of Greetland: My Lords, I thank the noble Lords who have spoken on this matter. Clause 46 of the Bill repeals the duty on principal local authorities in England and Wales to have a petitions scheme and the associated provisions. Amendment 15 would omit this clause, therefore reinstating the duty, and Amendment 49 would then amend the original legislation, which the noble Lord, Lord Greaves, referred to when he mentioned the eight pages. Incidentally, I have a note that there would be still four or five pages left of that, including the requirement to call officers to account. So a lot of it would still be there.
While the intention behind the amendments to ensure that councils treat the receipt of petitions sensibly and appropriately is laudable, I am not persuaded that reinstating this prescriptive and burdensome duty, albeit in a revised form, is either necessary or desirable. The revised duty proposed would remove Section 11 of the Local Democracy, Economic Development and Construction Act 2009, which provides for principal
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In addition, the extension of the statutory duty to all categories of petition-including mayoral petitions and council tax petitions-which the amendment creates, will create further additional burdens, as a scheme would then need to provide for different processes for different types of petition. To reinstate the current overly prescriptive duty not with a clean sheet but with a confused mishmash of some retained elements, with some changes and some provisions dropped, is not at all helpful. We trust local authorities to make the best choices for their local areas and to respond to residents' concerns in a locally appropriate way. However, how that looks should be a matter for local discretion, not central prescription.
We simply do not believe that we need to reinstate this duty in order to force local authorities to have a petitions scheme, any more than we believe that we need to tell local authorities how to respond to petitions from their own residents.
The noble Lord, Lord True, asked whether the Government still support the concept of petitions. Let me make it clear that they absolutely support and encourage the use of petitions but at a local and not at a national level. It seems to me that people want to put up a petition in a post office or whatever. They do not want to have to scratch about wondering what the proper way to organise a petition is for that council. They want to get on with the petition, get the names together and get on with it. That is how it is in democracy and how it is in local areas. In the circumstances, I trust that this amendment will not be pursued.
Lord Beecham: My Lords, I suppose that the noble Lord, Lord Greaves, can be forgiven for a sense of déjà vu since the issue has arisen, but he should have looked at the amendment rather than the Act. The amendment would substantially reduce what I entirely agree was a ridiculously overprescriptive regime for the presentation of petitions. It simply provides for councils to have a scheme to deal with petitions and is not about the detail of how petitions are to be presented, except that they would be acceptable in electronic or written forms. After that, it would be very much a matter of local discretion as to how they would be dealt with. There is no intention in the amendment to prescribe how petitioners should present their case. It is not at all a bureaucratic substitute and is significantly shorter than the three volumes that the noble Lord would have us believe the Act required.
The difficulty is that, by abolishing the provision without any alternative, the Government are sending a signal that petitions do not seem to be important. They are important and it is unfortunate that the Government are sending a signal to the contrary by
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(a) the application of section 87 of the Environmental Protection Act 1990 (offence of leaving litter) to litter deposited from motor vehicles;
(b) the procedures for identifying the person in charge of a motor vehicle; and
(c) the information which the registered keeper of a vehicle may be required to provide the local authority."
Lord Marlesford: My Lords, in moving Amendment 16, I must declare two interests. The first, I hope, is shared by many on all Benches of your Lordships' House, which is to campaign to do something to reduce the amount of litter that disfigures-indeed, I would say disgraces-our country. The second is to remind noble Lords that back in the 1990s I was for five years chair of the CPRE, which has supported this amendment.
I do not apologise for repeating this amendment 21 days after we last debated it. At that time, the Government's reply to the debate was, I suppose I could say, sad. My amendment is simple and necessary. We have to do something about litter. I believe in the old political cliché of action and not words. I am not seeking to create a new offence; it has been an offence for 11 years to drop litter from vehicles under Section 87 of the Environmental Protection Act 1990.
The problem is that it is very seldom that anything can be done about it because it applies only to the person dropping the litter and at the moment there is no way of knowing who dropped the litter. My amendment would simply make the keeper of the vehicle responsible, as is already the case for parking and for speeding. It is a simple amendment. To put it mildly, I am afraid that my noble friend Lord Shutt did not welcome it. He read out a brief that did not produce a single decent argument. Perhaps I may remind him of what he said on 10 October. He said that,
That is what he was asked to say, and he said it. That is his job, I suppose, in one sense. However, the only
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What is the essential merit of my amendment? To probe the Government's mind a bit further, I put down a Parliamentary Question and received, from my noble friend Lord Attlee, an Answer that was genuinely helpful in making my case. In fact, it puts it all so well that I feel that I must quote it. My Question was:
"To ask Her Majesty's Government what is the rationale for liability for parking fines resting on the registered keeper of the vehicle whether or not they were present when the parking offence was committed; and liability for fines, under Section 87 of the Environmental Protection Act 1990, for throwing litter from a vehicle on to public land".
"The rationale for liability for civil parking penalty charges resting on the registered keeper is that it is not always possible for the enforcement authority to identify the driver of the vehicle who has contravened parking rules. Requiring the enforcement authority to identify the individual who parked the vehicle could make it impossible to enforce parking restrictions, especially if the registered keeper were to deny responsibility and refuse to provide details of the driver. While with a parking transgression use of the vehicle is central to contravention of the rules, the littering offence (as set out in the Environmental Protection Act 1990) applies to the individual personally responsible in any circumstance wherever litter is dropped".-[Official Report, 24/10/11; cols. WA 119-20.]
The real point is that that section of the 1990 Act was not well drafted. All I am trying to do is to make it possible for the Act to operate in the way that Parliament intended, which is to do something rather than merely talk. In that context, I will quote my noble friend Lord Shutt's other tit-bit that he offered me to persuade me to withdraw the amendment. The action that he proposed is as follows:
"The Defra Secretary of State is calling together later this year representatives of vehicle hirers, motoring associations, manufacturers, service stations et cetera with a view to agreeing a voluntary commitment to tackle littering from vehicles".-[Official Report, 10/10/11; col. 1371.]
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