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Local Government and Public Involvement in Health Bill

My Lords, we certainly wrestled with this very complicated idea and I did my best to explain the issue. It is complicated but I can now take the House a little further forward and give a bit more background. However, I say to the noble Baroness at the start that she and I are absolutely at one: we are all concerned that a council’s reputation should not get tarnished or pre-empted in terms of the standards regime and the courts. I shall try to give her that assurance but I have to take her through why we cannot accept the amendments as they stand—because they do not deal with the problem that we have identified. The opposition amendments concern Clause 182 and the remit of the ethical regime to include conduct in a local authority member’s private capacity. Taken together, they aim to provide that the principles which govern the conduct of members, the model code of conduct they are required to follow and any additions to the code adopted by an authority should include conduct in members’ private capacity only where that conduct constitutes a criminal offence for which the member has been convicted and which is directly relevant to the official functions of a member. I appreciate how hard the noble Baroness has tried to address the problem by adding the words that she has, and that is why I am sorry to disappoint her. I certainly understand the concerns of noble Lords about the remit of the ethical regime for local authority members and why they believe it should be limited to include only certain conduct. I certainly agree with the need to limit carefully the private conduct with which the code should be allowed to concern itself in the interests of fair play for councillors. The intention behind the amendments is obviously to moderate the effect of the ethical regime by linking the remit of the code to conduct in members’ private capacity which constitutes a criminal offence for which the member has been convicted and which is directly relevant to the member’s official role. Nothing divides us here. I agree that there should be no right—or, indeed, opportunity—to treat a councillor as guilty of an act undertaken in his or her private capacity in advance of the usual criminal process. As I indicated on Report, our intention is that the new conduct regime for local authority members should have that principle at its heart. As I will explain, the standards regime will reflect that in the same way as the 2000 Act already provided for it in respect of the official conduct of councillors. I shall explain the issue in a little more detail. It is important to have on the record that we have not invented a new regime for private conduct. We are bound by the framework principles on which the 2000 Act, the code of conduct and the conduct regime were based. The regime was deliberately designed to ensure that councillors were as clear as possible about what was and was not covered, and clear that they could take advice on what sort of conduct might fall within the scope of the regime. Since then, the test of that has been whether conduct while performing a councillor’s role—that is, at the time the potential offence was committed—was capable of being ““an offence”” under the code. As I explained, in all logic, a breach of the code can apply only to the time at which the actions take place; it cannot be made retrospective. It is fair to say that, although not everyone is in favour of the code in principle—certainly, Members of this House have spoken against it—this aspect of it has not been challenged by local government. Therefore, we have simply replicated the principles and frameworks set out in 2000 in relation to private conduct. I know that in the amendment the noble Baroness has tried to address what she sees as a problem but, given the existing framework of the regime, an amendment to the rules in the way proposed using the phrase, "““for which the member … has been convicted””—" even given the attempt to make the conviction a certainty—would not remove the problem because, logically, the code would still have to be applied at the time the conduct was committed. As I said, the code cannot, in law, be linked retrospectively to conduct. That restriction would apply even in the case of the phrase referring to conduct that, "““subsequently results in a criminal conviction””." As I have said, it is impossible for any conduct ever to have been found to be criminal conduct at the time it was undertaken. A member who has, for example, been accused of an offence relating to child pornography cannot have been convicted of that offence at the time of committing it. This replicates the principles and frameworks on which the regime was set up in 2000. However, perhaps I may be more positive and set aside the differences between us in terms of the means and set out how my intentions meet those of the noble Baroness. What we are providing for, and what we will make absolutely clear in guidance, is that no one should be presumed guilty until proved so. I also want to see that the ethical regime does not operate separately from the criminal process and ensure that no sanction in respect of a criminal offence is imposed by the regime unless a criminal court has first issued a conviction. Our approach to achieving that is to provide certainty in the Bill that the regime’s remit will include conduct in a member’s private capacity which would ““constitute a criminal offence””. In effect, that wording means conduct which is capable of being regarded as a criminal offence, and, as we discussed, it allows us to be very clear in secondary legislation about what conduct should be regarded as an offence for the purpose of the ethical regime. That is one form of clarity. The second is to make it clear in regulation and guidance—here, we will replicate the guidance that already covers official conduct and we will promote it as such—that the judgment on whether a criminal offence has been committed will remain a matter for the courts. Critically, we will make it clear in guidance that, when an allegation involves a criminal prosecution, the procedure of the standards regime must be put on hold to await the outcome of the criminal processes. During that time, the standards committee will not be able to suspend the councillor and nor will the monitoring officer be able to pursue the investigation of the allegation. In the light of that, the only way that a standards committee will be able to conclude that there has been a breach of the code in respect of a member’s private conduct is if the court has convicted the member of that conduct. Therefore, there is nothing new about the sort of provisions that we have in mind to ensure that cases are put on hold when the criminal process is under way, not least because the Standards Board has in place long-standing guidance to its investigators in cases where investigations into members’ official conduct might prejudice or conflict with police investigations or the court process. The relevant guidance states: "““An investigation should be deferred when there are ongoing criminal proceedings, a police investigation into the member’s conduct, and we cannot proceed without investigating similar alleged conduct or needing to come to conclusions of fact about events which are also the subject of some other investigation or court process””." Therefore, we are neither creating a new offence in respect of members’ private behaviour in addition to those already on the statute book, nor creating a new mechanism for judging whether an offence has been committed. The system will rely on the existing rules of the criminal system and on the existing practice whereby the decision-making processes of the ethical regime will not be triggered unless the usual legal processes have indicated that a member has committed the criminal offence. The ethical regime will not kick in merely where there is an allegation and neither a standards committee nor the Standards Board will be able to intervene in or make decisions on criminal allegations in advance of, or in anticipation of, the operation of the proper criminal processes. The effect will be exactly as the noble Baroness intends by way of her amendment. The approach for conduct in a member’s private capacity to fall within the code where that conduct would constitute a criminal offence is supported by the local government world, including the LGA. As I have already mentioned, I am very happy to put that on the record for everyone’s security. In addition, the amendments seek to provide an additional limitation on the remit of the ethical regime, so that members’ conduct in their private capacity would fall only within the remit of the ethical regime where that conduct constitutes a criminal offence for which the member has been convicted and which is directly relevant to the performance of the official functions of the member. You will not be surprised to hear me say that that is contrary to our policy intention. Indeed, that was one of the problems we had with the JCHR report. It is very important to have on record the fact that we are very careful of the reputation of councillors. We are absolutely sure that no one should be judged guilty before a case is proved—everyone is judged to be innocent. That is a view in the processes that we have chosen, which have been accepted and supported by the local government world. I appreciate why the noble Baroness has tabled these amendments and I thank her for going to the trouble of trying to find a solution. I hope that she can accept that we have arrived at a position where we can safely agree the position.