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Local Government and Public Involvement in Health Bill

My Lords, it is always daunting when someone says that they do not envy the Minister and that the Minister has a difficult job, even when it is said by as good a friend as my noble friend Lord Graham of Edmonton. We are in very sensitive areas here. My explanation why the words of the amendment were chosen as they were and why we have difficulty in accepting the noble Baroness’s amendments turns on some complex issues of legal interpretation and in relation to process—to the relationship between the courts and standards committees as well as the work as it interacts and relates to the conduct of the member. The opposition amendments relate to Clause 188 and the remit of the ethical regime to include conduct in a local authority member’s private capacity. The amendments spread over quite a number of separate issues, so I shall address them all as I go on. Amendments Nos. 197A to 197D, 198A to 198D, 199A to 199D and 199E taken together aim to provide that the principles which govern the conduct of members, the model code of conduct that they are required to follow and any additions to the code adopted by an authority, should include conduct in members’ private capacity only when that conduct has resulted in a criminal conviction that is directly relevant to the official functions of a member. I understand the concerns of noble Lords, which we discussed a little in Committee. They were worried that the operation of the ethical regime for local councillors, especially the provisions that we are proposing in respect of members’ private capacity, can sometimes result in unfounded allegations being made. The process of investigation, including the media scrutiny that can sometimes occur, can have an effect on a member’s reputation, even when the case is later decided in the member’s favour. I believe that we have to address that alongside the principles that we all share, because local councillors should set an example, but we need proportionality here. I appreciate the intention behind the amendments to moderate the effect of the ethical regime by linking the remit of the code to conduct in members’ private capacity that has resulted in a criminal conviction directly relevant to the member’s official role. The noble Baroness argued, drawing on the comments of the Joint Committee, that by doing so there will be greater clarity and greater security. The problem is that this would not be delivered by the amendment. That is the case, for good but technical reasons, as I shall explain. For practical and sensible reasons we have tried to provide in the Bill that the principles and the code should apply in members’ private capacity only where that conduct constitutes a criminal offence. I agree that there should be no right to condemn a councillor for acting in his private capacity in the absence of a conviction, but the problem is not that easily solved. The amendments that refer to the phrase ““criminal conviction”” do not achieve their objective because at the time of undertaking the conduct it is impossible for it ever to have resulted in a conviction, as the amendments provide. A member who has been accused, for example of an offence relating to child pornography, cannot have been convicted of the offence at the time of committing it, but the code would have to be applied in respect of that timeframe. As these amendments would mean that the relevant rule of the ethical regime would have no effect at the time the offence was committed, the member could never be guilty of having breached the code of conduct for members for any behaviour he committed in his private capacity. Since conduct cannot be designated as conduct for which the member has been convicted at the time it was committed, an approach which included reference to criminal conviction would mean that a claim that a member had breached the code in respect of conduct in his or her private capacity could never be taken forward for investigation. So even if the allegation was made after the member had been convicted by the court, the member’s action when undertaken would not necessarily be action in respect of which there was at the time a criminal conviction. I understand that the argument has an element of the surreal and it may seem to miss the point that the noble Baroness addresses, but I assure noble Lords that having taken best advice on this our approach is the only sensible and practical way of dealing with the law in this respect. On the human rights aspect, we consider that the proposals are consistent with the ECHR requirement since the rules relating to members’ behaviour in their private capacity do not interfere in any person’s human rights to any extent which is greater than the criminal law already provides; that is to say, where a member’s conduct constitutes a criminal offence. The Bill provides for the remit of the regime to include conduct in a member’s private capacity which is capable of being regarded as a criminal offence. I understand the problems that noble Lords see with this and I take the point made by the noble Baroness, Lady Scott. However, there is no question of our seeking or expecting the standards committee or the Standards Board to pre-empt a criminal prosecution. Reference in our amendments to conduct which constitutes a criminal offence is a means of identifying what conduct should be proscribed by the ethical regime. The standards committee will not decide this question. It will not make decisions on criminal offences. The judgment on whether a criminal offence has been committed will remain a matter for the courts to decide. As regards an allegation involving a criminal prosecution, we shall follow what for many years has been the usual practice in the operation of the code in relation to criminal charges arising from a member’s official capacity. As in the case of conduct in a member’s official capacity, if an allegation were made which potentially involved a criminal prosecution, the practice set out in guidance from the Standards Board would apply. If it decides to investigate the case—as the noble Baroness, Lady Scott, said—the committee would have to await the outcome of the criminal processes. Therefore, the court conviction triggers the committee decision on what happens next. We intend to issue regulations to define the offences which should be included in the code. For a standards committee to conclude that there has been a breach of the code, it will need evidence that can be ultimately provided only by the court convicting the member. I believe that this is a complex but fair relationship. Amendments Nos. 197A, 197BA, 197D, 198A, 198D, 199A and 199D would provide an additional limitation on the remit of the ethical regime so that members’ conduct in their private capacity would fall within the remit only where that conduct has resulted in a criminal conviction directly relevant to the performance of the official functions of the member. That is in contrast to another set of amendments, which I will consider in a moment, which would provide that no conduct in members’ private capacity, including private conduct linked to official capacity, would be included at all. These amendments are contrary to our policy intention that the remit of the regime should include conduct in a private capacity where that conduct would constitute a criminal offence. I have said at earlier stages of the Bill that we consider that certain serious criminal behaviour—such as assault and offences relating to child pornography, even where there is no direct link between the conduct and a member’s official role—is capable of having an adverse affect on the general public’s level of trust of local authority members and the local government world as a whole. That objective is not achieved by these opposition amendments, which is why I could not accept them. Part of this group, Amendments Nos. 197C, 198C and 199C would replace the word ““may”” with the word ““shall”” in new subsection (2A) of Section 49, new subsection (4A) of Section 50 and new subsection (4A) of Section 51 of the Local Government Act 2000, as introduced by Clause 188. As we do not intend to take forward Clause 188 in its existing form, the parts of the clause that are the subject of these amendments will be withdrawn. Noble Lords may wish to note that the amendments that I have tabled refer to ““must”” instead of ““may””. It is appropriate to use ““must”” in these circumstances, because our amendments refer explicitly to members’ conduct in their official and private capacity, rather than to ““at all times””, which was the original language. Our amendments require that the principles and the provisions of the code of conduct must specify whether they apply in a member’s official capacity or in a member’s private capacity. I think that would make it clear. I think that the amendments that we have tabled meet the concerns raised by noble Lords, so I hope that noble Lords will not move their amendments. Amendments Nos. 197E, 198E and 199DA seem contradictory to the previous amendments because they provide that the principles that govern members’ behaviour, the provisions of the model code of conduct and the terms of any provisions added to the code should apply only in respect of a member’s official capacity and not in his or her private capacity at all. That is in contrast, of course, to the previous group. These amendments are not acceptable because they are not consistent with everything that we are trying to do in the Bill and in the amendments that I have tabled. In addition, taken together with the previous amendments which provide for the ethical regime to apply in respect of behaviour in members’ private capacity where directly relevant to members’ official functions, I think that these amendments would lead to confusion and a lack of clarity as to what behaviour, if any, in members’ private capacity was to be included. For example, would an assault by a councillor be excluded from investigation under the regime if it took place in the member’s own home, or would it need to take place in the council chamber before it came within the remit of the rules? These are complex amendments and it has been useful to explore some of their implications. I hope that noble Lords will feel reassured and will not press their amendments.