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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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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 members 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 persons human rights to any extent which is greater than the criminal law already provides; that is to say, where a members conduct constitutes a criminal offence.
The Bill provides for the remit of the regime to include conduct in a members 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 members official capacity. As in the case of conduct in a members 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 caseas the noble Baroness, Lady Scott, saidthe 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.
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 behavioursuch as assault and offences relating to child pornography, even where there is no direct link between the conduct and a members official roleis capable of having an adverse affect on the general publics 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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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 members official capacity or in a members 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 members 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 members own home, or would it need to take place in the council chamber before it came within the remit of the rules?
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 toand 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 againlet 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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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 courtsalthough 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.
(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
(4B) A provision of a code is within this subsection if it prohibits particular conduct (or conduct of a particular description) where that conduct would constitute a criminal offence within the meaning of the code.
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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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.
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 contextsfor example, if a local councillor gets a job that takes them away from the areathey 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 deficitnot even that, but a democratic holein 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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If a misdemeanour has occurred, perhaps by sharp practice, avoidance of declarations or another offence, the punishment must be short and sharpand 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.
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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