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Clause 188 [Conduct that may be covered by code]:
Baroness Hamwee moved Amendment No. 196:
The noble Baroness said: My Lords, the amendment takes us to the part of the Bill on ethical standards. The amendment is to probe the status of appointed
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“The Secretary of State may by order specify the principles which are to govern the conduct of members and co-opted members”.
On 10 October, I used the amendment of my noble friend Lord Greaves, at col. 298, to ask how appointed councillors—and the Minister knows that that is a concept about which Members on these Benches have some doubts—came to be covered by the ethical standards regime. The Local Government Act 2000 states:
“The Secretary of State may by order specify the principles which are to govern the conduct of members and co-opted members”.
In that Act, a co-opted member is someone who is a member of a committee or subcommittee or represents the authority on a joint committee and is entitled to vote. I asked then and have the same question now: does an appointed member fall within that definition? If there is a difference between appointment and co-option—and we are told that there is—an appointed member does not fall within the definition.
New Section 16A(3)(e) allows for regulations as to the,
As I said privately to the Minister, I have not followed the audit trail as to how an appointed member comes within the regime. The definitions do not seem to do it, and I cannot quite see that regulations are adequate to change the definition, if that is the way in which it is being approached. I beg to move.
The Deputy Speaker (Baroness Thomas of Walliswood): My Lords, I remind the House that, if Amendment No. 196 is agreed to, I cannot call Amendments Nos. 197 to 199DA because of pre-emption.
4.30 pm
Baroness Andrews: My Lords, I will try to clarify the questions, but as this is our first debate on the conduct regime, it is worth saying that Clause 188 deals with the remit of the principles that govern the conduct of members of authorities and the provisions of the moral code of conduct which they are required to follow. The clause responds to the interpretation of the remit of the code of conduct by the High Court judgment in 2006 in the appeal of the Mayor of London, which cast doubt on the ability of the code to cover the conduct of members in their private capacity. Subsequent amendments explore some of the issues that arise.
Amendment No. 196 would delete subsections (1) to (3) and would remove the provisions which provide that the principles governing the conduct of members, the provisions of the code of conduct itself and the provisions which authorities may add to their code may apply to a member’s conduct at all times. I know that the noble Baroness has used her amendments as a hook to explore the real issues about which she is concerned, which I shall move on to.
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We take the view that the ethical regime should apply equally to appointed and co-opted members as to elected members. Essentially, the indisputable point is that the same concerns about the appropriateness of behaviour and access to the decision-making process apply to all members, not just elected ones. I understand that noble Lords have concerns about whether appointed members are co-opted members for the purposes of the ethical regime. I shall set out how we intend to deal with appointed and co-opted members under the terms of the conduct regime. I am not sure that it adds up to an audit trail, but it will indicate the pathway.
Clause 82 provides for a parish council to appoint people to be councillors. The intention is that the council will be able to appoint people who it feels would strengthen and widen the range of interests represented on the council, including members who could not be elected councillors, such as those below the age of 18. Under the terms of the clause, appointed members will be councillors of the council, which will mean that the ethical regime applying to members will also apply to appointed members. I can confirm that it is our intention that the code of conduct and the other elements of the ethical regime will apply to appointed members, as it already does to elected and co-opted members.
Powers are already available to authorities to co-opt people to serve on councils. The Local Government Act 2000 already provides that the principles which members must follow and the provisions of the code of conduct which apply to members should also apply to co-opted members. Our intention is not therefore to provide for appointed members to be treated as co-opted members for the purpose of the ethical regime. The Bill makes separate provision for appointed members to be treated in the same way as elected councillors for this purpose. I can assure noble Lords that appointed and co-opted members will be subject to the same standards regime as elected members.
I hope that is sufficient indication of the route by which appointed members will be included and reassures the noble Baroness that there is a proper arrangement for that.
Baroness Hamwee: My Lords, I am grateful for that. It is new Section 16A(3)(e) in Clause 82. When I referred to it earlier, I could not remember which clause it is in. It states that regulations may make provision about the purposes for which a person appointed is to be treated as an elected councillor. Not for the first time over the years, I find myself in this building as if a bit behind the looking glass. It is a little odd to have a specific provision in primary legislation for co-optees and to have to pull appointees in through the back door. I am mixing my metaphors but I am sure that the noble Baroness understands what I mean.
Having to look to regulations to see how an appointee is treated as an elected councillor is not an entirely desirable way of going about things. Despite what the Minister said, I have the audit trail I was seeking, for which I am grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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Baroness Andrews moved Amendment No. 197:
(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 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.
The noble Baroness said: My Lords, these government amendments address concerns raised by noble Lords in Committee about the remit of the ethical regime for local authority members. In Committee, I said that I was willing to consider suggestions to make it clear in the Bill that our intention and conduct in a local councillor’s private capacity would come within the remit of the ethical regime, including the code of conduct, only where he or she has committed a criminal offence. These amendments put that policy objective into effect.
Amendments Nos. 197, 198 and 199 amend Clause 188 to provide on the face of the Bill the limitation that the ethical regime applies only to conduct of members in their private capacity where that conduct would constitute a criminal offence. Specifically, subsection (2A) in Amendment No. 197 provides that the principles which govern the conduct of members, the provisions of the code of conduct they must follow and the provisions which authorities may add to their code, may include principles and provisions which apply in a member’s official and private capacity. Subsection (2B) seeks to place on the face of the Bill a limitation on the remit of the ethical regime in a member’s private capacity by providing that the principles and provisions may apply only to a member’s conduct in a private capacity where that conduct would constitute a criminal offence.
Amendments Nos. 200 and 201 are consequential amendments to remove the provision allowing previously existing principles and the model code of conduct for members of relevant authorities in England and police authorities in Wales to continue in place after the amendments come into effect. The reason for that is that following the coming into force of the amendments, new orders in respect of the principles and the model code will now need to be issued.
I will come in a later amendment to discuss why we believe a criminal offence rather than a criminal conviction is the right and only way to go but, essentially, our intention is to specify through secondary legislation
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Noble Lords who are well versed in this matter probably know that an elected member who has been convicted of an offence by a court and received a sentence of imprisonment of three months or longer is already automatically disqualified from being a local councillor for five years under Section 80(1)(d) of the Local Government Act 1972. As such, the only conduct in an elected member’s private capacity with which we are concerned is conduct that constitutes a criminal offence and for which a member has not received a sentence of imprisonment of three months or longer.
We consider that serious criminal behaviour is capable of having an adverse impact on the general public’s level of trust of local authority members and local government as a whole and should come within the remit of the code. If we did not have such a provision, for example, an assault resulting in a criminal conviction and a prison sentence of less than three months would not of itself prevent an elected member from continuing as a member of an authority. I am sure noble Lords agree that it is very important that members set an example of leadership in their communities and we expect them to follow high standards and act within the law even when not acting as members, as the vast majority of members already do. That approach is certainly supported by the majority of the local government world following consultation, including the LGA. I commend the amendments to the House. I beg to move.
Baroness Hanham moved, as an amendment to Amendment No. 197, Amendment No. 197A:
Clause 188, line 12, leave out “would constitute a criminal offence” and insert “has resulted in a criminal conviction which is directly relevant to the performance of the official functions of the member or co-opted member”
The noble Baroness said: My Lords, I shall speak also to Amendment No. 197B. It may be convenient if I speak also to the amendments in the next group—Amendments Nos. 197BA to 197E, Amendments Nos. 198A to 198E and Amendments Nos. 199A to 199E—which all come within the same discussion.
I thank the Minister for bringing forward the government amendments. We have had discussions on private conduct and the impact of a criminal conviction on a council member but I should like to probe a little further.
The Joint Committee on Human Rights had quite a lot to say about these amendments, and it will be worth us going through what it said. The amendments the Government have brought are still wider than the
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I refer to the report of the Joint Committee on Human Rights, Legislative Scrutiny: Fourth Progress Report, Eleventh Report of Session 2006-07, which states at paragraph 1.19:
“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”.
“We agree with the view of the Committee on Standards in Public Life that only private conduct resulting in a criminal conviction which is relevant to the member's official duties should be within the scope of the code of conduct”.
Noble Lords will recall that Article 8 is the right of respect for family life and Article 10 is freedom of speech. The Joint Committee’s 13th report referred to a reply from Ministers but said, at paragraph 2.3:
“We note that although the Government’s position is that the code of conduct should not cover a councillor’s private life unless that conduct has resulted in a criminal conviction, the Bill as presently drafted neither states the basic principle that private conduct should not be covered by the code nor defines the exception to this principle where private conduct has resulted in a criminal conviction. Instead, the Bill provides for the code, and the principles on which it is based, to apply to a member ‘at all times’, and it is merely the Minister’s ‘current intention’ to confine the code to private conduct which has resulted in a criminal conviction. In our view, not only is there a serious mismatch between the Government’s stated intention and the provisions of the Bill as presently drafted, but the breadth of the power in the Bill to regulate members’ private conduct itself gives rise to Article 8 and 10 ECHR compatibility concerns because of the uncertainty it creates about the private conduct, including speech, which is or might be covered”.
The offending words in the Minister’s amendments, if I may say so, are “would constitute a criminal offence”. We need to see amendments that make it clear that a criminal offence has been tried by a court and accepted as such so that there is a criminal conviction, not just a matter that might result in a criminal conviction if it were prosecuted and the court came to that conclusion, which is effectively where we are at the moment. I hope the Minister will be able to come back at Third Reading and make some changes to the wording so it will
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4.45 pm
Baroness Scott of Needham Market: My Lords, I welcome the Government’s amendments, which will bring clarity to private conduct. Noble Lords may remember my expressing in Committee grave reservations about the current situation, where the private conduct of a councillor could be treated in such a way as to result in their suspension from office and all that that entails, whereas were they a private citizen it would result in no action being taken. I know that the Human Rights Committee had expressed concern that that situation was possibly contrary to human rights legislation. I used in Committee the analogy of the courts martial system, which has come in for criticism in Europe for introducing a quasi-legal framework and sanctioning individuals for offences which, were they to be committed by someone who was in another profession, would not be prosecuted. Councillors should not be treated as a separate species, so I am glad to see that private conduct is to be removed from the code.
The difficulty that we now face is how we draft legislation that deals with criminal conduct. Like the noble Baroness, Lady Hanham, I am concerned about framing the amendment with the expression “would constitute a criminal offence”. How might the procedure work? Does the ethical standards regime kick in after the court has decided that someone is guilty of a criminal offence? In that case, “would constitute” are not the right words for the legislation. I suspect that “would constitute a criminal offence” is in the Bill because an individual who is charged with a criminal offence and is going through the legal process would remain a councillor until found guilty, which in a sense is right because we are all supposed to be innocent until proven guilty. However, I suspect that people in a locality would find it difficult to be represented by an individual who had been charged with, for example, child pornography. We have reached a difficult point. When a councillor is suspended from office, it is serious not just for the individual but also for the area that they represented. How do we deal with that situation while the legal process is going on?
Lord Graham of Edmonton: My Lords, this is probably one of the most difficult aspects of councillorship, and a council’s stewardship on behalf of its electorate. I do not envy the Minister or her advisers one bit. They must ultimately stand by an Act of Parliament whose wording is robust and gets to the heart of the matter.
Although the noble Baroness, Lady Scott, said that we are all innocent until proven guilty, once the hare begins to run, an issue becomes public and a court is involved, one forms an opinion based on the evidence. Many of us will know that from experience of being members of a council or working in another sphere of public scrutiny and accountability. It is no less true in
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The Minister has the difficult task of trying not to try the person who may or may not be guilty of the offence but who may be guilty of an offence that is not directly related to his ability and integrity as a councillor. The illustration that the noble Baroness, Lady Scott, gave is perfectly fair. However, in my experience, when Members of this House have been subject to court proceedings—that is, when they are guilty of a matter—the hare begins to run. From my experience many years ago in the London Borough of Enfield, I remember one or two instances—though only one or two—when a councillor’s behaviour outwith his stewardship and responsibilities to his constituents was the subject of proceedings. This is not exactly a grey area but one in which there will always be personal views that will colour the outcome. We all know of times when individuals whom we have known have faced horrendous charges yet have got off and not been convicted.
I think that the Minister should take heart from the fact that this House, and the people who represent local government, are conscious of the great burden that she carries. Whether she has got it right or not, the solution will have to be robust and stand the test of time, and she is entitled to our support.
Baroness Andrews: 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.
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