Memorandum submitted by the Mayor of London (LGPI 11)

 

Local Government and Public Involvement in Health Bill

Conduct of Local Authority Members

 

 

1. Introduction

 

1.1 The Mayor of London welcomes the opportunity to submit written evidence to the Scrutiny Committee to be considered by the Local Government and Public Involvement in Health Public Bill Committee.

 

1.2 The Mayor is concerned by the implications of Clause 131 in the Local Government and Public Involvement in Health Bill. This clause will give unelected state officials the power to intrude into the personal and private lives of elected local authority members by amending the Local Government Act 2000 to declare that a code of conduct for members of a relevant authority is not limited to their conduct in their official capacity.

 

1.3 The Mayor regards this as a breach of fundamental rights and freedoms and has sought legal advice on Clause 131, which confirms this view. Because Clause 131 is objectionable both on legal grounds and on principle, it should be deleted from the Bill.

 

1.4 Furthermore, the Mayor believes that the Government should use the opportunity presented by this Bill to abolish the Standards Board for England (SBE). In a democratic society, it is absolutely wrong that unelected officials should stand in judgment of elected representatives for matters that are not considered illegal. Elected representatives should either be subject to due process in the courts for unlawful activities, or removed by the public through the ballot box.

 

 

2. Clause 131

 

2.1 Clause 131 seeks to reverse in part the decision of the High Court in Livingstone v Adjudication Panel for England. Members of the Committee will be aware of the facts of this case, which are well known. Mr Justice Collins found that the Adjudication Panel had been wrong to say that the Mayor's comments to a reporter from the Evening Standard breached paragraph 4 of the Code of Conduct ('A member must not, in his official capacity or any other circumstance, conduct himself in a manner which could reasonably be regarded as bringing his office or the Authority into disrepute'). He ruled that the Mayor was not performing any function as a Mayor and was off duty so the Code did not apply, and that personal misconduct is unlikely to bring about disrepute to the office of Mayor. He also ruled that taking disciplinary action in such circumstances breached his common law and convention right to freedom of expression and freedom of speech.

 

2.2 This ruling was in accordance with the intention of Parliament when it enacted Section 52 of the 2000 Act and the Local Government Law Reports expressed the view that what has been established by the Livingstone judgment is 'clear and sensible'. However, Clause 131 seeks to reverse the decision of the High Court.

 

2.2.1 2.3 The tenth report of the Committee on Standards in Public Life in effect anticipated the Livingstone decision by proposing that local authority members should only be subject to disciplinary action and sanctions in respect of conduct in their official capacity and not in respect of conduct in their private life. The Government rejected this but accepted a counter recommendation by the SBE relating to certain behaviour outside official duties, which should continue to be, regulated namely matters that 'would be regarded as unlawful'. In accepting the SBE recommendation, the Government recognised 'the need to exclude from proscription actions of which certain people might merely disapprove'. This proposal at least limited the conduct in private life that might be subject to disciplinary action. Clause 131 abandons even that proposed limitation.

 

2.4 Clause 131 is not only contrary to the advice of the Committee on Standards in Public Life; it also seeks to empower the Secretary of State to give the SBE and Ethical Standards Officers (ESO) even wider powers to intrude into the personal and private lives of elected members of local authorities than even they had proposed, and was accepted, by the Government.

 

2.5 When giving oral evidence to the Public Bill Committee on 1 February, Local Government Minister Phil Woolas MP said the purpose of Clause 131 was to 'define more clearly the role of the councillor as a councillor and that of a private individual, so that only criminal conviction in terms of private behaviour can be subject to the regime; and outside of that rather like with Members of Parliament. That is what we are trying to do'. However, this is not what Clause 131 does. Rather, every private word and deed of local authority members would be subject to the regime.

 

2.6 The Code would not cover MPs, peers or other public servants. The code of conduct for MPs applies to all aspects of their public life and does not seek to regulate what they do in their private and personal life.

 

3. Implications of Clause 131

 

3.1 There are a number of clear and persuasive reasons why Clause 131 should be removed from the Bill or be amended to explicitly restrict the principles governing the conduct of members to their conduct in their official capacity.

 

3.2 Clause 131 is not compatible with the European Convention on Human Rights (ECHR). The Bill's Explanatory Note on Clause 131 asserts that the clause 'is considered to be capable of being exercised compatibly with the rights set out in the [European] Convention'. The Note does not assert that Clause 131 is compatible with the ECHR. According to legal advice the Mayor has received, it is not.

 

· Article 8 of the ECHR provides for the 'Right to respect for private life and family life'. Clause 131 would interfere with this right and on this ground alone clause 131 should not be enacted (see appendix).

 

· Clause 131 also constitutes an interference with Article 10 on 'Freedom of expression'. Article 10 acknowledges there are exceptions to when the Article applies but legal advice received by the Mayor states that none would apply here. Sedition, incitement and hate speech are covered by the criminal law whilst civil law provides a remedy for defamation. The taking of disciplinary action leading to sanctions of suspension or disqualification against an elected representative because an unelected state official disapproves of what that representative has said or written is an affront to democracy.

 

· Clause 131 also infringes Article 14, 'Prohibition of discrimination'. This implies that the imposition of disciplinary findings and sanctions against those having the status of elected local authority members in circumstances where those sanctions do not apply to other elected members - for example MPs - or appointed members of public bodies is incompatible with Article 14 taken with Article 8 and/or Article 10.

 

3.3 Local authority members can already be disqualified from office, or from seeking office, if they have been found guilty in a criminal court of a criminal offence resulting in three months imprisonment. But there is no justification for permitting unelected state officials to investigate and scrutinise the every word and deed of an elected member in their private life. Giving such powers to state officials is something one would expect in a totalitarian state and not in a democracy such as ours.

 

3.4 Local authority members are also held accountable for their behavior in elections. This principle that members should be judged through the ballot box and not by unelected state officials was upheld by Parliament when it enacted section 52 of the Local Government Act 2000. However, this principle is under attack from Clause 131.

 

3.5 In a democracy it is also wrong that the every word and deed of elected local authority members made in a private capacity should be subject to investigation, scrutiny, possible disciplinary action and sanction by unelected state officials which would deprive the electorate of its chosen representative.

 

3.6 Such restraints on relevant member's private conduct that has absolutely no connection with relevant members' performance of their duties and functions and which does not break the law, goes beyond what is necessary to uphold proper standards of conduct in public life.

 

3.7 The MP's code of conduct applies to all aspects of their public life and does not seek to regulate what they do in their private and personal life, such as is proposed by Clause 131. Different rules for members of local authorities would mean that the Code of Conduct relating to them would apply in wider circumstances which implies that different standards of conduct are necessary for local politicians than national.

 

 

4. Conclusion

 

4.1 The proposition underlying Clause 131 that it is necessary in a democratic society to regulate and investigate the private life of elected local authority members in order to uphold proper standards of conduct in public life is disproportionate, breaches the fundamental rights of elected local authority members and will create double standards in our public life.

 

4.2 The very existence of the SBE is unnecessary and an inexcusable waste of public funds in a democratic society. The Board should therefore be abolished by this Bill.

 

 

February 2007

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Appendix

 

 

Articles, 8,10 and 14 of the European Convention on Human Rights

 

 

Article 8 - Right to respect for private life and family life

 

1. Everyone has the right to respect for his private life, his home and his correspondence.

 

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

 

 

Article 10 - Freedom of expression

 

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

 

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

 

 

Article 14 - Prohibition of discrimination

 

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, properly, birth or other status.