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Local Government and Public Involvement in Health Bill

moved, as an amendment to Amendment No. 197, Amendment No. 197A: 197A: Clause 188, line 12, leave out ““would constitute a criminal offence”” and insert ““has resulted in a criminal conviction which is directly relevant to the performance of the official functions of the member or co-opted member”” The noble Baroness said: My Lords, I shall speak also to Amendment No. 197B. It may be convenient if I speak also to the amendments in the next group—Amendments Nos. 197BA to 197E, Amendments Nos. 198A to 198E and Amendments Nos. 199A to 199E—which all come within the same discussion. I thank the Minister for bringing forward the government amendments. We have had discussions on private conduct and the impact of a criminal conviction on a council member but I should like to probe a little further. The Joint Committee on Human Rights had quite a lot to say about these amendments, and it will be worth us going through what it said. The amendments the Government have brought are still wider than present code of conduct, and the government amendments, the principles and the code can prohibit conduct that ““would constitute a criminal offence””—not conduct that would be a criminal offence, or a conviction. Unlike the model code, that is not confined to conduct that has subsequently led to a criminal conviction; it is only an anticipatory fact that it might do. A standards committee would therefore have to determine whether criminal offences were committed and the code would be able to extend to situations where a criminal offence that may have been committed was so minor that the prosecuting authorities have decided not to bother with it. Under the Government’s amendments that would be caught, but under ours it would not. The Government’s amendments also allow an offence to be a breach of the code where it has no relation to the councillor’s position as a councillor. I refer to the report of the Joint Committee on Human Rights, Legislative Scrutiny: Fourth Progress Report, Eleventh Report of Session 2006-07, which states at paragraph 1.19, "““We see no reason why the Bill should not expressly state on its face the exact extent to which the code shall apply to private conduct by members, for example by providing that the only private conduct to which the code applies is conduct which has resulted in a criminal conviction. There is no reason, legal or otherwise, why such a limitation should only be contained in the code. On the contrary, in our view, there are very good reasons why such a limitation should be on the face of the Bill, to make it less likely in practice that the power will be exercised incompatibly with Articles 8 and 10””." Paragraph 1.20 states: "““We agree with the view of the Committee on Standards in Public Life that only private conduct resulting in a criminal conviction which is relevant to the member's official duties should be within the scope of the code of conduct””." Noble Lords will recall that Article 8 is the right of respect for family life and Article 10 is freedom of speech. The Joint Committee’s 13th report referred to a reply from Ministers but said, at paragraph 2.3, "““We note that although the Government’s position is that the code of conduct should not cover a councillor’s private life unless that conduct has resulted in a criminal conviction, the Bill as presently drafted neither states the basic principle that private conduct should not be covered by the code nor defines the exception to this principle where private conduct has resulted in a criminal conviction. Instead, the Bill provides for the code, and the principles on which it is based, to apply to a member ‘at all times’, and it is merely the Minister’s ‘current intention’ to confine the code to private conduct which has resulted in a criminal conviction. In our view, not only is there a serious mismatch between the Government’s stated intention and the provisions of the Bill as presently drafted, but the breadth of the power in the Bill to regulate members’ private conduct itself gives rise to Article 8 and 10 ECHR compatibility concerns because of the uncertainty it creates about the private conduct, including speech, which is or might be covered””." The offending words in the Minister’s amendments, if I may say so, are ““would constitute a criminal offence””. We need to see amendments that make it clear that a criminal offence has been tried by a court and accepted as such so that there is a criminal conviction, not just a matter that might result in a criminal conviction if it were prosecuted and the court came to that conclusion, which is effectively where we are at the moment. I hope the Minister will be able to come back at Third Reading and make some changes to the wording so it will conform to the Convention on Human Rights and make it clear in the Bill that in the private capacity the code will only cover a criminal conviction that has some relation to the councillor’s role. I beg to move.