On 28th June, Lords from all political sides joined together to criticize the government’s proposals in Part 2 of the Localism Bill, quoting Ai Director Jeremy Smith’s criticism and critique first made in February 2011, in an article in Municipal Journal, “Fog over Parliament” .
Under the government’s proposals, ministers would decide whether and how much to require local authorities to pay to central government, in the event of a fine from the European Court of Justice, which the minister decides they are responsible for. In his article, Jeremy had explained (a) how the government had misunderstood the relevant EU Treaty provisions, and (b) in particular, how the proposed clawback proposals were in breach of the principles of natural justice, with ministers being at once prosecutor, judge and co-defendant!
“Understandably, the main area of concern has focused on the ability of a Minister to pass on a fine without any form of judicial or independent oversight. The need for independent oversight is particularly vital when one considers the complexity of the factors leading up to any infraction, not least in the area of air quality-I must here declare an interest in that where my home is in London is the most polluted air in the whole of the UK-and the fact that it is more than likely that one of the parties responsible for any breach will be the Government themselves. This concern was voiced eloquently by Jeremy Smith, barrister and former Secretary-General of the Council of European Municipalities and Regions, in the Municipal Journal in February. He said:
‘There is, however, a wider point of concern about Part 2 of the Bill. There is no independent decision-maker. The minister takes the decision to make the local authority pay-even though central government may be partly or largely responsible for the infraction in the first place, for example, through delayed action, poor drafting, or for myriad other reasons. This means the minister may be simultaneously prosecutor, judge, jury-and co-defendant. This is surely not a healthy legal precedent … Therefore, Part 2 of the Localism Bill needs fundamental rethinking. If there is to be a claw-back provision at all, it should not be ministers who decide, since central government is almost certainly an interested party. The process should be for the minister to refer the matter to the High Court, or independent arbitrator, to determine any fair apportionment of the Article 260 fine imposed by the ECJ. The independent decision-maker can then take into account every party’s share of responsibility’.”
Her argument was supported by other peers, including ex-ministers such as Lord Jenkin and Newton, as well as Liberal Democrat peer Lord Tope, and Labour peer Lord Beecham. The minister, Earl Attlee, indicated that while the government were not willing to remove the offending clauses from the Bill, the government was open to possible compromise on wording… and referred to a draft policy statement of the Greater London Authority being discussed with government, and which includes proposals for an external advisory body.
Jeremy Smith’s original article had made other criticisms of the drafting of the Bill, several of which have in fact been taken into account in the latest version o0f the Bill. however, Earl Attlee’s response in the debate indicate that the government’s spokespeople still misunderstand important aspects of the legal position under the EU Treaties.