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5.15 pm
John Healey: Lords amendments Nos. 159 to 163 would confirm in the Bill the circumstances in which the principles that govern members’ conduct and the provisions of the code of conduct that they must follow apply to local authority members. They do that by providing that the ethical regime may apply in members’ official and private capacity. However, it would apply to conduct in their private capacity only when an action constituted a criminal offence.
Our intention is to respond to the effect of the High Court judgment in 2006 in the appeal of the Mayor of London, which cast doubt on the code of conduct’s ability to cover members’ conduct in their private capacity. That has always been our intention but we also wish, through the amendments, to respond to suggestions from the other place that we should make it clear in the Bill. Our approach has been supported by the majority of those in local government, including the Local Government Association.
Lords amendment No. 164 simply effects a recommendation of the Delegated Powers and Regulatory Reform Committee. It is right to do so, and I commend the amendments to the House.
Alistair Burt: We are considering a difficult matter, which was the subject of much discussion and debate in the other place. I would like to place on record the fact that we are uncertain about whether the amendments have met the challenge, although we do not intend to divide the House on the matter.
The explanatory notes, which have been so helpfully and excellently provided at short notice, state:
“The effect of the amendments would be that the only principles and provisions which may be applied to members outside their official capacity are principles and provisions prohibiting conduct which would (if engaged in) constitute a criminal offence.”
The Minister knows about the hesitancy expressed by my noble Friend Baroness Hanham in another place. We are hesitant because the amendments would not provide for an offence for which a conviction has been given. It indicates conduct which could “constitute a criminal offence”.
Concern has been expressed that conduct so minor as to constitute an offence that would be punishable by between nothing and three months in jail, which the police may not consider worth prosecuting and may result in no action, could lead to a reference to the Standards Board. I stress that I am referring to conduct outside the official capacity of an elected member and related to private life.
Andrew Stunell:
Three possible offences come to mind: smoking in an enclosed public place, speeding
and litter dropping. Does the hon. Gentleman agree that we need to avoid more minor offences leading to referral to the Standards Board or a local standards committee?
Alistair Burt: Indeed. I greatly welcome the hon. Gentleman’s intervention. Sadly, the history of the Standards Board is littered with abuse by councillors settling scores with each other, and vexatious cases, which have driven many of us to distraction, and led to Conservative Members’ great concern about whether the Standards Board can be relied upon to do a good and effective job.
We know that there are reforms in place. Our position is that we are agreeing to wait and see what they will produce, but we have hesitations about the Standards Board, as the Minister will be aware. However, we are looking all the time for avenues to close down unnecessary references—things that could be used that are totally contrary to the spirit of the board; things that do not pertain to elected members’ actual activity, but which could be used in a trivial manner—and we are not certain.
Let me quote briefly from the Joint Committee on Human Rights report, “Legislative Scrutiny: Fourth Progress Report”, its eleventh report of the 2006-07 Session. Paragraph 1.19 states:
“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.”
That is the area of hesitation for us. I would be grateful if the Minister could give the House an assurance that he believes that trivial and vexatious issues will not be caught up in the wording that is already in the Bill. Plainly it is not his intention that they should be, and it was not the intention of his noble Friends. However, we are unsure whether the wording in the Bill will not lead to the very concerns that I believe the hon. Member for Hazel Grove (Andrew Stunell) will raise, and which were raised in the other place and which we are raising now—that is, our main hesitation about the provisions that are in the Bill as an amendment.
Andrew Stunell: The hon. Gentleman is right: I do have some issues that I want to raise. We rehearsed them quite thoroughly in Committee. The Minister’s predecessor gave us some assurances about how he hoped things would turn out. It is good to see that some of the things that in Committee he undertook to do have materialised, but some quite serious issues are still not sorted out. I welcome the fact that the phraseology in the Bill is now more transparent, but I am not sure whether in making it transparent the Government have entirely responded to all the points that are outstanding.
I want to deal first with what in Committee was called the overcoat clause. When is a councillor a councillor and when are they taking part in their private life? I understand that the turning point in the High Court case against the Mayor involved the
distinction that, as he had his coat on and was outside the door, he was in the clear, whereas if he had been in the lobby without his coat on, he would not have been in the clear. One can argue about that interpretation, but it has led to the introduction of the concept of whether someone is wearing their overcoat determining that they are on duty or on private business. I welcome the fact that the phraseology now narrows the provisions, so that only those things that are criminal offences when someone has their overcoat on will come to light.
I mentioned smoking. I do not smoke, so it is not a problem for me, but it would be a brave Member of the House who said that they had not done anything in even the past six months that, had they been in the wrong place at the wrong time, might have resulted in their being charged. Let us take speeding as an example of that. Although we have superficially restricted what can happen to people when they have got their overcoat on, the fact is that most local government councillors could be sent to the Standards Board for at least one thing every month. Therefore, the changes do not necessarily restrict things as much as the Minister would hold out. I hope, therefore, that the Minister will respond positively to what the hon. Member for North-East Bedfordshire (Alistair Burt) has said about putting on record the Government’s intentions on how the code should be drafted and, more importantly, how it should be applied.
It emerged clearly during earlier stages of the Bill that the content of the code was only part of the problem, and that another part was how the code should be interpreted. The reality at local government level is that monitoring officers on local authorities give members advice, and that cautious members go to those officers and say, “I think this is all right, but do you think it really is?” Almost without exception, the monitoring officer will say, “No, it isn’t.” They employ the insurance principle: if someone asks whether it is safe to do something, the best thing to do is to say no.
We have consequently seen a progressive shrinking of the amount of discretion that local authority members have over their conduct, and increasing conservatism—with a small c—about how the code should be implemented. That has undermined the credibility of the code and of the Standards Board. It would be good to feel that the provisions that we are considering would reverse that and restore the credibility of the board, but it will take some talking by the Minister to persuade me that we have achieved that.
So far, I have been talking about matters that relate to the overcoat issue: to what degree is a local councillor at risk when they have their overcoat on? However, there are also important questions relating to what they may and may not do when they are not wearing their overcoat—that is, when they are acting as a local government councillor. On Report, I drew attention to the fact that the Government intend, via other legislation, to give local communities more say in the planning process. That is quite explicit in their planning White Paper and I understand that it will be reflected in the legislation to follow. There will be a requirement specifically to solicit the views of local
communities; developers will apparently have a duty placed on them to solicit views in that way.
If we are not careful, we could find ourselves in the absurd position in which everyone could take part in a consultation on a projected planning application except elected local councillors. The present interpretation of the code is that local councillors may not participate, advocate or campaign in respect of any planning application that has been submitted to their authority. Of course, there are various elaborate charades that people can go through to get round that, but when I served on a planning committee 20 years ago, it was not seen as out of place for a local councillor to say, “I am opposed to this, and I shall go to the committee to say so”, or for them to go to the committee, or for them to vote against an application. Nowadays, a councillor would go to prison for doing that. That is an absurd situation for local authority representatives to find themselves in.
Frank Dobson (Holborn and St. Pancras) (Lab): Quite right!
Andrew Stunell: I am delighted to receive an endorsement from that slightly unexpected quarter.
It would be good to hear from the Minister a clear exposition of the part that local representatives will play in the Government’s projected planning legislation and the additional functions that are to be placed on the local community. Will he acknowledge that, when that legislation comes along, this Bill will require further amendment to make it explicit that elected local authority representatives are not only allowed but expected to play a strong, active part in the process? We need to restore to them the power to represent their local community that most of us believe they should always have had.
Clause 184 is now far better than it was. On the face of it, it makes the overcoat issue less serious. I do not believe, however, that it will limit action to the off-duty councillor in quite the way that the Minister has explained. As for on-duty councillors, it still leaves open the central question of whether they will be allowed to represent their local communities when and where it really matters, or whether they will be muffled and gagged as current practice dictates they should be.
5.30 pm
John Healey: The hon. Member for Hazel Grove (Andrew Stunell) recognised that some of his questions would be matters for the planning legislation with which he and I may deal together. I am sure that we will return to them.
The hon. Gentleman was anxious for members to be able to act in their community representative role. He will know that the code of conduct issued in April this year allows councillors to make representations on planning matters on behalf of their communities even when there is what might be termed a prejudicial interest, which I think constitutes a step forward. Both he and the hon. Member for North-East Bedfordshire (Alistair Burt) have described the issues covered by the amendments as incredibly complex, but I am glad that he thinks the position is better than it was.
As the hon. Member for North-East Bedfordshire said, the code prescribes conduct in a member’s private capacity where it constitutes a criminal offence for which the member has been convicted. According to legal advice that we have received, that wording is not appropriate, particularly for the purposes of what we want to achieve in the Bill. Let me try to explain why.
Because of the way in which the ethical regime for councillors is constructed, the code of conduct applies to members performing their role—that is, acting in their official role or in their private capacity. That means that it is impossible for any conduct to be confirmed as criminal at the time when it took place. A member who has been accused, for instance, of an offence relating to child pornography cannot have been convicted of the offence at the time of its commission. Therefore—according to our legal advice—reference in the Bill to conduct for which the member has been convicted would not be workable.
We have given assurances that the regime we are imposing will rely on the usual criminal process to determine whether a criminal offence has been committed. It will neither create a new offence in respect of members’ private behaviour nor create a new mechanism for judging whether or not an offence has been committed.
Let me say for purposes of clarity and confirmation that we do not intend to allow trivial and vexatious offences to be caught by the Bill. We intend to avoid that by means of regulation for which the Bill provides, and on which we will consult fully to help us get it right.
Alistair Burt: Would it be possible to place in the Library a copy of the legal advice on the first point that we discussed—the reason for which the Bill cannot include the requirement for a conviction? Will the Minister consider whether that would be possible, and write to me?
John Healey: I will not give the hon. Gentleman a commitment to make the legal advice available, but I will give him a commitment to write to him and explain the terms of the advice and its implications, which, owing to time pressures, I have tried to summarise in a fairly succinct way today.
Lords amendments Nos. 160 to 174 agreed to.
John Healey: I beg to move, That this House agrees with the Lords in the said amendment.
Mr. Deputy Speaker (Sir Michael Lord): With this it will be convenient to consider Lords amendments Nos. 176 to 201.
John Healey:
We turn to the last group of amendments, which address part 14 of the Bill. They deal with patient and public involvement in health. I welcome the hon.
Member for Eddisbury (Mr. O'Brien), who speaks on health for the Conservatives, to the Opposition Front Bench for this debate.
As expected, throughout every stage of the Bill’s passage through this House and the other place this part of the Bill has come under considerable scrutiny. It has generated considerable debate and as a result we have made a number of important improvements. Let me briefly run through the main changes to the Bill since it left this House.
First, we have drafted amendments to include a specific provision that ensures that local involvement networks may co-operate on a local, regional and national basis as a means of undertaking their core activities, if they choose. Secondly, we have drafted amendments that set out the specific purposes of LINks’ monitoring and reviewing of local care services. Thirdly, we have drafted amendments that provide that the regulations imposing a duty on services providers to allow authorised representatives of LINks to enter and view their premises may limit the duty so that authorised representatives do not have access to certain premises and to the viewing of certain activities.
Fourthly, we have changed the duty on English NHS bodies from that of making arrangements to “consult” users of health services to one of making arrangements for such people to be “involved”; the meaning of that should also be clarified. Fifthly, we have drafted amendments to lower the threshold for when the duty to make arrangements for involvement applies. Sixthly, we have drafted amendments to place a duty on the Secretary of State to make regulations imposing a duty on strategic health authorities to arrange to involve users of health services. Seventhly, we have drafted amendments to provide for the Secretary of State to make regulations allowing strategic health authorities to make directions to primary care trusts, which will avoid unnecessary duplication of involvement activities. Eighthly, we have drafted amendments to extend the duty to report on consultation to SHAs. Ninthly, we have drafted amendments to exclude NHS bodies from being hosts of LINks, to avoid the potential for conflicts of interest. Tenthly, we have drafted amendments to ensure that transitional arrangements are put in place where local authorities have not been able to establish their LINk in time.
I hope that Members accept that the changes are significant and that they are all improvements. They have broadly been welcomed, and I commend them to the House.
Mr. Stephen O'Brien (Eddisbury) (Con): The official Opposition welcome part 14 as so well amended in the other place. Lords amendments Nos. 175 to 201 to clauses 222 to 233 go a considerable way towards making LINks effective in the Government’s terms. Conservative and Liberal Democrat Lords have significantly improved the Bill. Notwithstanding that, LINks remain a poor shadow of PPI—patient and public involvement—forums and community health councils, and we still do not have patient representation as we once did.
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