Localism Bill – The Final Chapter

Propped up awkwardly in a late-night Parliamentary bar, a drunken Localism Bill in maudlin mode might just now be slurring out Sinatra’s famous epilogue anthem to himself: ‘And now, the end is here/And so I face the final curtain. . .’. For the caterpillar Bill now seems to have reached endgame and should soon metamorphose into a large butterfly of an Act.

The third reading debate in the Lords was interesting. For this of course saw the introduction of a requirement that authorities have a Nolan Principles-compliant code of conduct. It also put paid to an attempt by leading Blackstone barrister, Lord Pannick, to remove unforeseen consequences from the current predetermination proposals.

Conduct

It is clear that Baroness Hanham has pushed the boat out against a fairly forceful tide from some her colleagues. More than one of their Lordships acknowledged this in suitably decorous fashion. Lord Bichard, for example, speaking to the amendments said that: ‘I know that sometimes she has had to act in the face of considerable opposition. I shall go no further than that. . .’. The unspoken words carry an echo.

Similarly, Lord Tope knew: ‘. . . 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’ and congratulated her ‘. . .on her persuasive powers and the success that she has achieved’. For Labour, Lord Beecham (who nevertheless took the opportunity of adding a little astringent aftertaste to honeyed words): ‘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’.

The spectre at the feast that their Lordships were too polite to mention was no doubt the Secretary of State. For Mr Pickles has expressed firm views in this area and was therefore unlikely to have been ecstatically pleased at the amendments introduced by his junior ministerial colleague. Nevertheless, (as Bismarck apparently first observed) politics is the art of the possible. Therefore, whilst the small cross party group of peers (Lords Bichard, Tope, Newton and Filkin) who had created the impetus behind the Government amendments were pleased at progress, they also did acknowledge some disappointment.

So although Lord Tope was pleased that it was going to be mandatory to have a code he was ‘a little sad that its minimum provisions are not to be the same throughout the country’.

Nevertheless, in reality he thought that codes would in large part be the same ‘because my expectation is that the great majority of local authorities will simply keep the code . . .they all already have’. He was concerned about what he hoped would ‘be a tiny minority of councils that decide not to keep the code . . .they now have. . .[and]. . .why they make that decision and in what way they might change it’.

On this Lord Beecham hoped that ‘the Local Government Association (LGA), with others, will draft something that will be useful and adopted by many local authorities’. Whilst ACSeS is of course already on the case with this, whether or not the LGA will choose to put its weight behind a uniform national code remains to be seen. Lord Tope was also concerned about available ‘monitoring’ i.e. what provision there will be ‘to let us know what is happening under the new regime’.

Lord Bichard (who had in the circumstances agreed to withdraw an amendment enabling councillor suspension) was grateful to the Minister for referring specifically to existing powers (see Councils to rely on existing sanctions for conduct breaches, says minister published in Local Government Lawyer on 2 November 2011). Lord Beecham (whilst recognising that the game was over at this stage) expressed unease at the limits of currently available sanctions ‘and whether they are sufficient to meet some of the more serious cases’.

It may therefore 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’. ACSeS had of course suggested a lawful, fair and proportionate process to include suspension of all or part of a member’s functions for a maximum of three months.

Baroness Hanham for the Government was somewhat surprised to be the focus of a civilised Parliamentary love-in, thanking everyone for their ‘very kind compliments’ which it was ‘unusual to hear’ and allowing herself the luxury of ‘basking a little bit’. She thought that the new procedures will ‘have a real impact on the conduct of local councillors’ and that the process must be transparent.  For: ‘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’.

And (re the query from Lord Tope) whilst there will be no formal monitoring of the regime, this will in effect be carried out by the transparency of the decision-making process.

Predetermination

As mentioned, despite an elegant submission and some civilised discussion, Lord Pannick’s proposed amendment on predetermination (supported by ACSeS) failed to fly. Clause 25(2) of the Bill currently provides that a decision-maker is not to be taken to have had, or to have appeared to have had, a closed mind when making the decision just because: (a) the decision-maker had previously done anything that directly or indirectly indicated what view the decision-maker took, or would or might take, in relation to a matter, and (b) the matter was relevant to the decision.

Lord Pannick indicated that the current pragmatically sensible common law status quo (following Persimmon Homes Teeside Limited v. R (Kevin Paul Lewis) ([2008] EWCA Civ 746) was being potentially compromised. Persimmon of course held amongst other things that the evidential bar for finding bias or predetermination concerning the decision of elected councillors was high and that 'clear pointers' are needed if a councillor’s ‘. . .state of mind is to be held to have become a closed, or apparently closed, mind at the time of decision'.

Lord Pannick said that whilst the courts had explained the difference between lawful strong predisposition and unlawful predetermination it was unclear whether Clause 25 was maintaining this distinction. So much so in fact ‘that it will inevitably lead to protracted and expensive litigation’. His amendment (set out below) sought to set out 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’. He referred to support from both ACSeS and the Chairman of the Constitutional and Administrative Law Bar Association.

Lord Pannick therefore suggested a new Clause 25(3)(2) as follows: ‘In deciding whether a decision-maker had, or appeared to have had, a closed mind to any extent when making the decision –
(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.'

This seems an unexceptionable statement of current law. Nevertheless, the Lords took exception to it. Baroness Eaton (Con) felt that the 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 difficult ‘absolutely full and frank debates’.

Lord Greaves (LD) (whilst, as he put it, not doing so from Lord Pannick’s position ‘as an eminent lawyer who knows about things like predetermination, predisposition and perhaps predestination as well’) thought the amendment ‘would make things worse’. And weighing in (unfairly) against local government lawyers he identified the problem as being 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’.
However, as mentioned, despite Lord Pannick’s final word that the current formulation was ‘dealing with a phantom problem that is created by erroneous advice being given, or. . .said to be given, to local councillors up and down the land, his amendment fell.

Mayoral Powers

Finally, hot on the heels of these debates, in early November CLG issued a consultation on the proposed approach for giving powers to Leicester (which already has a mayor elected in May 2011) and the 11 other mayoral cities’ (Birmingham, Bradford, Bristol, Coventry, Leeds, Liverpool, Manchester, Newcastle-upon-Tyne, Nottingham, Sheffield and Wakefield).

The consultation paper indicates that the Government is: ‘. . .proposing a “bottom-up” approach where we look to the cities to come forward with their proposals for powers for their mayors. This recognises the differences of the mayoral cities, and their need for flexible, decentralised policy solutions that enable them to do things in a way that is relevant to their city’s particular circumstances’.

Views are being sought from those living and working in each of the 12 cities, their business communities (including the Local Enterprise Partnership), the voluntary and community sectors, public sector bodies and agencies and indeed anyone else ‘on matters affecting their city, or more generally’.

Whilst clearly not everyone will be happy with the final version of the Localism Bill, it is at least useful that its future shape is starting to settle into something recognizably solid. But it will be interesting to follow any final twists, turns or potholes in the ever-shortening, but eventful, road to the Localism Act.

Dr. Nicholas Dobson is a Senior Consultant with Pannone LLP specialising in local and public law is also Communications Officer for the Association of Council Secretaries and Solicitors. He can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it..

© Nicholas Dobson    November 2011