Local Government and Public Involvement in Health Bill

House of Lords

Session 2006 - 07
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Local Government and Public Involvement in Health Bill

Local Government and Public Involvement in Health Bill
Part 9 — The Commission for Local Administration in England
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26C
Referral of complaints by authorities
(1)
This section applies where a complaint about a matter is made to a
member of an authority to which this Part of this Act applies.
(2)
If the complainant consents, the complaint may be referred to a Local
Commissioner by—
5
(a)
the member of the authority to whom the complaint was made,
(b)
any other member of that authority, or
(c)
a member of any other authority to which this Part of this Act
applies which is alleged in the complaint to have taken or
authorised the action complained of.
10
(3)
Subject to subsection (4), a referral under this section must be made in
writing.
(4)
A Local Commissioner may disapply the requirement in subsection (3)
in relation to a particular referral.
(5)
If a Local Commissioner is satisfied that the complainant asked a
15
member of an authority mentioned in subsection (2) to refer the
complaint to a Local Commissioner, he may treat the complaint as if it
had been referred to him under this section.
(6)
In this section, references to a member of an authority include—
(a)
in relation to a National Park authority, a member of any of the
20
councils by whom a local authority member of the authority is
appointed;
(b)
in relation to a joint board, a member of any of the constituent
authorities of the joint board;
(c)
in relation to a joint authority established by Part 4 of the Local
25
Government Act 1985, a member of a constituent council of that
authority.
26D
Matters coming to attention of Local Commissioner
(1)
This section applies to a matter which has come to the attention of a
Local Commissioner if—
30
(a)
the matter came to his attention during the course of an
investigation under this Part of this Act,
(b)
(subject to subsection (3)) the matter came to his attention—
(i)
before the person affected or his personal
representatives had notice of the matter, or
35
(ii)
in any other case, before the end of the permitted period,
and
(c)
it appears to the Local Commissioner that a member of the
public has, or may have, suffered injustice in consequence of the
matter.
40
(2)
In subsection (1)(b)(ii), “the permitted period” means the period of 12
months beginning with—
(a)
the day on which the person affected first had notice of the
matter, or
(b)
if the person affected has died without having notice of the
45
matter, the day on which the personal representatives of the
person affected first had notice of the matter.

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(3)
A Local Commissioner may disapply the requirement in subsection
(1)(b) in relation to a particular matter.”
(2)
In section 27 of that Act (provisions relating to complaints)—
(a)
for the title substitute “Members of the public”;
(b)
in subsection (1), for the words before paragraph (a) substitute “In this
5
Part of this Act, “member of the public” means an individual or a body
of persons, whether incorporated or not, other than—”;
(c)
omit subsection (2).
174
Reports and statements of reasons
(1)
Section 30 of the Local Government Act 1974 (c. 7) (reports on investigations)
10
is amended as follows.
(2)
For subsection (1) substitute—
“(1)
If a Local Commissioner completes an investigation of a matter, he shall
prepare a report of the results of the investigation and send a copy to
each of the persons concerned (subject to subsection (1B)).
15
(1A)
A Local Commissioner may include in a report on a matter under
subsection (1) any recommendations that he could include in a further
report on the matter by virtue of section 31(2A) to (2BA).
(1B)
If, after the investigation of a matter is completed, the Local
Commissioner decides—
20
(a)
that he is satisfied with action which the authority concerned
have taken or propose to take, and
(b)
that it is not appropriate to prepare and send a copy of a report
under subsection (1),

he may instead prepare a statement of his reasons for the decision and
25
send a copy to each of the persons concerned.
(1C)
If a Local Commissioner decides—
(a)
not to investigate a matter, or
(b)
to discontinue an investigation of a matter,

he shall prepare a statement of his reasons for the decision and send a
30
copy to each of the persons concerned.
(1D)
For the purposes of subsections (1) to (1C), the persons concerned are—
(a)
the complainant (if any),
(b)
any person who referred the matter under section 26C(2),
(c)
the authority concerned, and
35
(d)
any other authority or person who is alleged in the complaint,
or who otherwise appears to the Local Commissioner, to have
taken or authorised the action which is or would be the subject
of the investigation.”
(3)
In subsection (2), for “the complaint” substitute “a complaint about the matter”.
40
(4)
In subsection (2AA)(a), for “the duty imposed by subsection (1)(c) above”
substitute “the duty to send a report or statement to the Authority under
subsection (1), (1B) or (1C)”.

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(5)
Before subsection (3) insert—
“(2B)
Subsections (3) to (8) apply in the case of a report under subsection (1).”
(6)
In subsection (3), for “the interests of the complainant and of persons other
than the complainant” substitute “the interests of the complainant (if any) and
of other persons”.
5
(7)
In subsection (7), for “the interests of the complainant and of persons other
than the complainant” substitute “the interests of the complainant (if any) and
of other persons”.
175
Power of Commissioners to make recommendations etc
(1)
Section 31 of the Local Government Act 1974 (c. 7) (further provisions about
10
reports on investigations) is amended as follows.
(2)
For subsection (1) substitute—
“(1)
This section applies where a Local Commissioner reports that there has
been—
(a)
maladministration in connection with the exercise of the
15
authority’s administrative functions,
(b)
a failure in a service which it was the function of an authority to
provide, or
(c)
a failure to provide such a service.”
(3)
For subsection (2B) substitute—
20
“(2B)
Where the report relates to maladministration, those recommendations
are recommendations with respect to action which, in the Local
Commissioner’s opinion, the authority concerned should take—
(a)
to remedy any injustice sustained by the person affected in
consequence of the maladministration, and
25
(b)
to prevent injustice being caused in the future in consequence of
similar maladministration in connection with the exercise of the
authority’s administrative functions.
(2BA)
Where the report relates to a failure in, or to provide, a service which it
was the function of the authority to provide, those recommendations
30
are recommendations with respect to action which, in the Local
Commissioner’s opinion, the authority concerned should take—
(a)
to remedy any injustice sustained by the person affected in
consequence of the failure, and
(b)
to prevent injustice being caused in the future in consequence of
35
a similar failure in, or to provide, a service which it is the
function of the authority to provide.”
(4)
In subsection (3)(b), for “maladministration” substitute “the maladministration
or failure”.

Local Government and Public Involvement in Health Bill
Part 9 — The Commission for Local Administration in England
127

176
Publication of reports etc by Commissioners
After section 31A of the Local Government Act 1974 (c. 7) insert—
“31B
Publication of reports etc by Commissioners
(1)
A Local Commissioner may—
(a)
publish all or part of a report or statement under section 30,
5
(b)
publish all or part of a report under section 31,
(c)
arrange for further publication of all or part of a statement
published under section 31(2D) or (2G), or
(d)
publish a summary of a matter which is the subject of a report
or statement under section 30 or 31,
10

if, after taking into account the public interest as well as the interests of
the complainant (if any) and of other persons, he considers it
appropriate to do so.
(2)
A Local Commissioner may—
(a)
supply a copy of all or part of a report, statement or summary
15
mentioned in subsection (1) to any person who requests it, and
(b)
charge a reasonable fee for doing so.
(3)
Subsection (3) of section 30 applies to—
(a)
any part of a statement under section 30, and
(b)
any part of a summary of a matter,
20

that is published, or a copy of which is supplied, under this section as
it applies to a report prepared under section 30.”
177
Making complaints etc electronically
(1)
In section 32 of the Local Government Act 1974 (law of defamation and
disclosure of information), after subsection (3) insert—
25
“(3A)
A notice under subsection (3) above may not be given electronically.”
(2)
In section 34 of that Act (interpretation of Part), after subsection (1) insert—
“(1A)
In this Part of this Act, except as otherwise provided, references to
something being done in writing are to it being done in writing whether
electronically or otherwise (and references to anything written shall be
30
interpreted accordingly).”
178
Disqualifications
(1)
Schedule 4 to the Local Government Act 1974 (the Commission) is amended as
follows.
(2)
In paragraph 1(1) (disqualification for being Local Commissioner)—
35
(a)
in paragraph (a), for “any of the authorities mentioned in section 25(1)
of this Act” substitute “any authority to which Part 3 of this Act
applies”;
(b)
in paragraph (b), omit “or is a member (by co-option) of a committee of
any of those authorities”.
40
(3)
In paragraph 1(2) (restriction on Local Commissioners conducting cases), for

Local Government and Public Involvement in Health Bill
Part 9 — The Commission for Local Administration in England
128

the words from “has been a member of that authority” to the end substitute “—
(a)
has been a member of that authority,
(b)
has taken action on behalf of that authority in the exercise of
any of their functions, or
(c)
has taken action which, by virtue of an enactment, is treated
5
as having been taken by that authority in the exercise of any
of their functions.”
(4)
For paragraph 2 (disqualification of Local Commissioners for appointment to
paid office by authority) substitute—
“2A
A Local Commissioner shall be disqualified for being appointed to a
10
paid office by an authority to which Part 3 of this Act applies—
(a)
while the categories of matter for which the Local
Commissioner has responsibility pursuant to section 23(8A)
include—
(i)
matters relating to the authority, or
15
(ii)
matters of a description which may include matters
relating to the authority, and
(b)
for three years after the Local Commissioner ceases to have
responsibility for such matters pursuant to section 23(8A).”
179
Expenses of the Commission
20
In Schedule 4 to the Local Government Act 1974 (c. 7) (the Commission) for
paragraphs 6 to 8 substitute—
“5A   (1)
The Secretary of State must pay to the Commission in respect of each
financial year such amount as he determines to be the amount
required for the discharge during that year of the functions of the
25
Commission.
      (2)
A determination under sub-paragraph (1) must be approved by the
Treasury.”
180
Delegation
In Schedule 4 to the Local Government Act 1974 (the Commission) at the end
30
insert—
“Delegation
13    (1)
Any function of a Commissioner may be discharged on the
Commissioner’s behalf—
(a)
by any person authorised by the Commissioner to do so, and
35
(b)
to the extent so authorised.
      (2)
Sub-paragraph (1) does not affect the responsibility of the
Commissioner for the discharge of the function.”
181
Minor and consequential amendments
Schedule 12 (minor and consequential amendments) has effect.
40

Local Government and Public Involvement in Health Bill
Part 10 — Ethical standards
Chapter 1 — Conduct of local authority members
129

Part 10
Ethical standards
Chapter 1
Conduct of local authority members
Codes of conduct
5
182
Conduct that may be covered by code
(1)
In section 49 of the Local Government Act 2000 (c. 22) (principles governing
conduct of members of relevant authorities), after subsection (2) insert—
“(2A)
An order under subsection (1) must provide as respects each specified
principle—
10
(a)
that it applies to a person only when acting in an official
capacity; or
(b)
that it applies to a person only when not acting in an official
capacity;

but the order may provide as mentioned in paragraph (b) only as
15
respects a principle within subsection (2B).
(2B)
A principle is within this subsection if it prohibits particular conduct
(or conduct of a particular description) where that conduct would
constitute a criminal offence.
(2C)
An order under subsection (1) may define, for the purposes of the
20
order—
“official capacity”; and
“criminal offence”.
(2D)
An order under subsection (2)—
(a)
may specify principles which are to apply to a person at all
25
times;
(b)
may specify principles which are to apply to a person otherwise
than at all times.”
(2)
In section 50 of that Act (model code of conduct), after subsection (4) insert—
“(4A)
A model code of conduct issued under subsection (1) must provide, as
30
respects each provision of the code which relates to the conduct
expected of the persons mentioned in that subsection—
(a)
that the provision applies to a person only when acting in an
official capacity; or
(b)
that it applies to a person only when not acting in an official
35
capacity;

but the code may provide as mentioned in paragraph (b) only as
respects a provision within subsection (4B).
(4B)
A provision is within this subsection if it prohibits particular conduct
(or conduct of a particular description) where that conduct would
40
constitute a criminal offence.

Local Government and Public Involvement in Health Bill
Part 10 — Ethical standards
Chapter 1 — Conduct of local authority members
130

(4C)
A model code of conduct issued under subsection (1) may define for the
purposes of the code—
“official capacity”; and
“criminal offence”.
(4D)
Provision included under subsection (4A) or (4C) in a model code of
5
conduct—
(a)
must be consistent with the provision for the time being
included in an order under section 49(1) by virtue of section
49(2A) or (2C);
(b)
is to be mandatory except to the extent that it relates to an
10
optional provision;
(c)
to the extent that it relates to an optional provision, is to be
mandatory where that optional provision is incorporated in a
code of conduct under section 51.
(4E)
A model code of conduct issued under subsection (2) may include—
15
(a)
provisions which are to apply to a person at all times;
(b)
provisions which are to apply to a person otherwise than at all
times.”
(3)
In section 51 of that Act (duty of relevant authorities to adopt codes of
conduct), after subsection (4) insert—
20
“(4A)
Where under subsection (4)(c) a provision relating to the conduct
expected of persons is included in the code of a relevant authority in
England or police authority in Wales, the code must provide—
(a)
that the provision applies to a person only when acting in an
official capacity (within the meaning given by the code); or
25
(b)
that it applies to a person only when not acting in an official
capacity (within that meaning);

but the code may provide as mentioned in paragraph (b) only as
respects a provision within subsection (4B).
(4B)
A provision of a code is within this subsection if it prohibits particular
30
conduct (or conduct of a particular description) where that conduct
would constitute a criminal offence within the meaning of the code.
(4C)
The provisions which may be included under subsection (4)(c) by a
relevant authority in Wales other than a police authority include—
(a)
provisions which are to apply to a person at all times;
35
(b)
provisions which are to apply to a person otherwise than at all
times.”
(4)
In section 52 of that Act (duty to comply with code of conduct), in each of
subsections (1) to (4), omit the words “in performing his functions”.
(5)
Subsection (6) below applies where immediately before the commencement
40
date a person is a member or co-opted member of a relevant authority and not
prevented by any provision of section 52 of that Act from acting as such.
(6)
The coming into force of this section shall not have the effect of preventing the
person from acting as a member or co-opted member of the relevant authority,
but—
45