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Amendments Nos. 197A to 197D, 198A to 198D, 199A to 199D and 199E taken together aim to provide that the principles which govern the conduct of members, the model code of conduct that they are required to follow and any additions to the code adopted by an authority should include conduct in members’ private capacity only when that conduct has resulted in a criminal conviction that is directly relevant to the official functions of a member.

I understand the concerns of noble Lords, which we discussed a little in Committee. They were worried that the operation of the ethical regime for local

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councillors, especially the provisions that we are proposing in respect of members’ private capacity, can sometimes result in unfounded allegations being made. The process of investigation, including the media scrutiny that can sometimes occur, can have an effect on a member’s reputation, even when the case is later decided in the member’s favour. I believe that we have to address that alongside the principles that we all share, because local councillors should set an example, but we need proportionality here. I appreciate the intention behind the amendments to moderate the effect of the ethical regime by linking the remit of the code to conduct in members’ private capacity that has resulted in a criminal conviction directly relevant to the member’s official role. The noble Baroness argued, drawing on the comments of the Joint Committee, that by doing so there will be greater clarity and greater security. The problem is that this would not be delivered by the amendment. That is the case, for good but technical reasons, as I shall explain.

For practical and sensible reasons we have tried to provide in the Bill that the principles and the code should apply in members’ private capacity only where that conduct constitutes a criminal offence. I agree that there should be no right to condemn a councillor for acting in his private capacity in the absence of a conviction, but the problem is not that easily solved.

The amendments that refer to the phrase “criminal conviction” do not achieve their objective because at the time of undertaking the conduct it is impossible for it ever to have resulted in a conviction, as the amendments provide. A member who has been accused, for example of an offence relating to child pornography, cannot have been convicted of the offence at the time of committing it, but the code would have to be applied in respect of that timeframe. As these amendments would mean that the relevant rule of the ethical regime would have no effect at the time the offence was committed, the member could never be guilty of having breached the code of conduct for members for any behaviour he committed in his private capacity. Since conduct cannot be designated as conduct for which the member has been convicted at the time it was committed, an approach which included reference to criminal conviction would mean that a claim that a member had breached the code in respect of conduct in his or her private capacity could never be taken forward for investigation. So even if the allegation was made after the member had been convicted by the court, the member’s action when undertaken would not necessarily be action in respect of which there was at the time a criminal conviction.

I understand that the argument has an element of the surreal and it may seem to miss the point that the noble Baroness addresses, but I assure noble Lords that having taken best advice on this our approach is the only sensible and practical way of dealing with the law in this respect. On the human rights aspect, we consider that the proposals are consistent with the ECHR requirement since the rules relating to members’ behaviour in their private capacity do not interfere in any person’s human rights to any extent which is greater than the criminal law already provides; that is to say, where a member’s conduct constitutes a criminal offence.

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The Bill provides for the remit of the regime to include conduct in a member’s private capacity which is capable of being regarded as a criminal offence. I understand the problems that noble Lords see with this and I take the point made by the noble Baroness, Lady Scott. However, there is no question of our seeking or expecting the standards committee or the Standards Board to pre-empt a criminal prosecution. Reference in our amendments to conduct which constitutes a criminal offence is a means of identifying what conduct should be proscribed by the ethical regime. The standards committee will not decide this question. It will not make decisions on criminal offences. The judgment on whether a criminal offence has been committed will remain a matter for the courts to decide. As regards an allegation involving a criminal prosecution, we shall follow what for many years has been the usual practice in the operation of the code in relation to criminal charges arising from a member’s official capacity. As in the case of conduct in a member’s official capacity, if an allegation were made which potentially involved a criminal prosecution, the practice set out in guidance from the Standards Board would apply. If it decides to investigate the case—as the noble Baroness, Lady Scott, said—the committee would have to await the outcome of the criminal processes. Therefore, the court conviction triggers the committee decision on what happens next. We intend to issue regulations to define the offences which should be included in the code. For a standards committee to conclude that there has been a breach of the code, it will need evidence that can be ultimately provided only by the court convicting the member. I believe that this is a complex but fair relationship.

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Amendments Nos. 197A, 197BA, 197D, 198A, 198D, 199A and 199D would provide an additional limitation on the remit of the ethical regime so that members’ conduct in their private capacity would fall within the remit only where that conduct has resulted in a criminal conviction directly relevant to the performance of the official functions of the member. That is in contrast to another set of amendments, which I will consider in a moment, which would provide that no conduct in members’ private capacity, including private conduct linked to official capacity, would be included at all. These amendments are contrary to our policy intention that the remit of the regime should include conduct in a private capacity where that conduct would constitute a criminal offence.

I have said at earlier stages of the Bill that we consider that certain serious criminal behaviour—such as assault and offences relating to child pornography, even where there is no direct link between the conduct and a member’s official role—is capable of having an adverse affect on the general public’s level of trust of local authority members and the local government world as a whole. That objective is not achieved by these opposition amendments, which is why I could not accept them.

Part of this group, Amendments Nos. 197C, 198C and 199C would replace the word “may” with the word “shall” in new subsection (2A) of Section 49, new subsection (4A) of Section 50 and new subsection

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(4A) of Section 51 of the Local Government Act 2000, as introduced by Clause 188. As we do not intend to take forward Clause 188 in its existing form, the parts of the clause that are the subject of these amendments will be withdrawn.

Noble Lords may wish to note that the amendments that I have tabled refer to “must” instead of “may”. It is appropriate to use “must” in these circumstances, because our amendments refer explicitly to members’ conduct in their official and private capacity, rather than to “at all times”, which was the original language. Our amendments require that the principles and the provisions of the code of conduct must specify whether they apply in a member’s official capacity or in a member’s private capacity. I think that would make it clear. I think that the amendments that we have tabled meet the concerns raised by noble Lords, so I hope that noble Lords will not move their amendments.

Amendments Nos. 197E, 198E and 199DA seem contradictory to the previous amendments because they provide that the principles that govern members’ behaviour, the provisions of the model code of conduct and the terms of any provisions added to the code should apply only in respect of a member’s official capacity and not in his or her private capacity at all. That is in contrast, of course, to the previous group. These amendments are not acceptable because they are not consistent with everything that we are trying to do in the Bill and in the amendments that I have tabled.

In addition, taken together with the previous amendments which provide for the ethical regime to apply in respect of behaviour in members’ private capacity where directly relevant to members’ official functions, I think that these amendments would lead to confusion and a lack of clarity as to what behaviour, if any, in members’ private capacity was to be included. For example, would an assault by a councillor be excluded from investigation under the regime if it took place in the member’s own home, or would it need to take place in the council chamber before it came within the remit of the rules?

These are complex amendments and it has been useful to explore some of their implications. I hope that noble Lords will feel reassured and will not press their amendments.

Baroness Hanham: My Lords, I am sure that the Minister will not be surprised when I say that I am going to have to look at Hansard and study what she has said. I have done my best to take in all that she said, but I am not going to say now that I will not return to the matter at Third Reading because, in view of what she said, it is only fair that I should be able to—and I will.

There is still conflict between us about how these provisions are made and how they deal with private life and a conviction. The Minister has in effect agreed that it will be a conviction on a criminal offence that will trigger the Standards Board taking additional action.

Being contradictory again—let us be clear, we are talking about an offence that would bring with it a conviction of between none and three months, so it is

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at the lower end of judicial responsibility—action, even a prosecution, is not necessarily a conviction. It may never end up as a conviction. Allegations can be made for all sorts of reasons, some of which are not at all proper and may be mendacious and vexatious. For a Standards Board to be able to leap in at that stage and take action would be completely improper. That could happen under the Bill as it stands, including the phrase,

I need to concentrate on the words “would constitute”, because the Minister’s explanation was confusing, and it will not give us the clarity that we need.

I am mindful that this all started when the Mayor of London got himself into a tangle in a public matter that ultimately went to the courts—although it was an appeal to the courts by him and not the other way round. We are dealing with a slightly different thing here. I am keen that we get this as near right as we can. I would like to have another go to see whether I can get the Minister to agree a different form of wording, or for us all to agree on an explanation. For today, I will withdraw the amendment, but I will come back to it on Third Reading. I beg leave to withdraw the amendment.

Amendment No. 197A, as an amendment to Amendment No. 197, by leave, withdrawn.

[Amendment No. 197B, as an amendment to Amendment No. 197 not moved.]

On Question, Amendment No. 197 agreed to.

[Amendments Nos. 197BA to 197E not moved.]

Baroness Andrews moved Amendment No. 198:

(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 capacity;but the code may provide as mentioned in paragraph (b) only as respects a provision within subsection (4B).“criminal offence”.(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 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.

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(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.””

[Amendments Nos. 198A and 198B, as amendments to Amendment No. 198, not moved.]

On Question, Amendment No. 198 agreed to.

[Amendments Nos. 198C to 198E not moved.]

Baroness Andrews moved Amendment No. 199:

(a) that the provision applies to a person only when acting in an official capacity (within the meaning given by the code); or(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).(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.””

[Amendments Nos. 199A and 199B, as amendments to Amendment No. 199, not moved.]

On Question, Amendment No. 199 agreed to.

[Amendments Nos. 199C to 199E not moved.]

Baroness Andrews moved Amendments Nos. 200 and 201:

On Question, amendments agreed to.

Clause 196 [Ethical standards officers: investigations and findings]:

Baroness Andrews moved Amendment No. 202:

The noble Baroness said: My Lords, the amendment would put into effect the commitment that I gave in Committee that we would provide for the order-making power in Clause 196(4) in Part 10 to be subject to the affirmative resolution procedure.

I indicated in Committee that I was minded to agree to the recommendation of the Delegated Powers and Regulatory Reform Committee that orders under Section 63(1)(j) of the Local Government Act 2000, inserted by Clause 196(4), should be made subject to

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the affirmative resolution procedure. That power will provide for the Secretary of State to specify by order those persons to whom ethical standards officers of the Standards Board may disclose information.

Amendment No. 202 inserts the order-making power under new subsection 63(1)(j) of the Local Government Act 2000, as introduced by Clause 196, into the list in Section 105(6) of the Local Government Act 2000 to provide that the order-making power is subject to the affirmative resolution procedure.

I hope that noble Lords will agree that this is a positive response to the concerns they expressed earlier and that it reflects my commitment to respond constructively to suggestions about how to ensure that the ethical conduct regime applying to local government members is sensible, proportionate and fair to all parties.

On Question, amendment agreed to.

Baroness Scott of Needham Market moved Amendment No. 203:

The noble Baroness said: My Lords, the Local Government Act 2000, which introduced the ethical standards regime that we are debating, contains provision for the case tribunal to suspend from office for up to 12 months a councillor found guilty of a particular act. A number of councillors in recent years have been suspended in this way. It was interesting that the noble Baroness, Lady Hanham, said on the last but one group of amendments that the issue was being debated as a result of a case involving the Mayor of London, Ken Livingstone. Many other people have been subjected to this imperfect regime, but because they do not have the money, are not vocal or do not have friends in high places, their cases have often not been discussed. It has taken Ken Livingstone to bring this issue to the fore.

This question of suspension from office for a year troubles me on account of the democratic process, because, if a councillor is suspended from office for 12 months, the area that they represent remains unrepresented. In other contexts—for example, if a local councillor gets a job that takes them away from the area—they can take leave of absence for six months, after which there would have to be a by-election. It seems inconsistent that an area can be left unrepresented for a year because of a suspension from office, whereas six months is considered long enough for other reasons.

I would be interested to hear whether the Government have had any thoughts about the issue of suspension from office for a year and how the question of a democratic deficit—not even that, but a democratic hole—in representation should be addressed. I beg to move.

Lord Graham of Edmonton: My Lords, I was interested in how bereft a constituency would be if the member was absent for a long period. Forgive me if I

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have got it wrong, but many areas are represented by more than one councillor. I do not know the precise breakdown, but in my day—and I do not think that there has been much change—you often found that when absences took place for whatever reason, the burden was carried by the other members. Even if the member is not there and there is no one else to look after that ward, most parties have a system whereby a neighbouring councillor or someone else is able to step in.

If a misdemeanour has occurred, perhaps by sharp practice, avoidance of declarations or another offence, the punishment must be short and sharp—and a year is a short time, because they serve for a longer period. The public must be made aware that something serious has happened. Reducing the suspension period would not improve the situation; 12 months is a long time and there are duties that must be performed, but not many council meetings or committee meetings would be forgone. This view of the general councillorship would weaken the sanctions available.

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Baroness Maddock: My Lords, I support my noble friend, not because I do not think that it is serious if someone is not allowed to take part for a year due to a misdemeanour but because of what would happen in the area in which I live.

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