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Amendments Nos. 56 to 58 are a shorter means of achieving the same end, which, overall, is to clarify the Bill. The Government clearly intend that the code should apply only when a criminal conviction has been recorded and limit—by statutory instrument, as we understand it—the criminal offences that the code may cover. The amendments deal with both points, bringing in the substance of the Joint Committee on Human Rights and the Dismore amendment.

The words that still worry us are the ones I have already pointed out: the categoric statement in subsection (2B) that the conduct would “constitute a criminal offence”. We would like to add, after “constitute”,

That is derived from the 2007 model code of conduct in the Local Authorities (Model Code of Conduct) Order 2007. Paragraph 2(3) of that code applies certain provisions,

That deals with the problem the Minister encountered in the debate on Report: the Bill refers to conduct that would constitute a criminal offence but the intention in the Bill, which is not stated, is that it should be a criminal offence for which they have been found guilty.

The amendments come with the Joint Committee on Human Rights seal of approval. They are common-sense amendments that are descriptive and clear, and they make sense of the Government’s stated intentions. They would clarify the Bill immeasurably. I hope the Minister will able to accept them so we can ensure that there is no problem over this aspect of the Bill, which, as we all know, has come about because of

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some actions that were found by the Crown Court not to constitute a breach of the code in a member’s private capacity. I beg to move.

Baroness Hamwee: My Lords, I am pleased that the noble Baroness has tabled these amendments. I still have difficulty, not just with the concept—there are different views about offences committed in one’s private capacity and so on—but with the words,

In her explanation the Minister tried to take us around in circles. I fear we dropped off one by one, and I was one of the first. I hope she will be able to set all this right today.

I have difficulty with part of what the noble Baroness has included; namely, the conduct being,

There is a range of views on this and mine is probably at the tougher end. A councillor’s actions go to reputation. On the previous occasion, the Minister used paedophilia as an example that might well not be directly relevant to the performance of official functions; nevertheless, you do not want a convicted paedophile undertaking some of the functions of a local authority because, as I said, there is an issue of reputation. However, we must be much straighter and clearer than the Bill currently is about what conduct would constitute a criminal offence.

Baroness Andrews: My Lords, we certainly wrestled with this very complicated idea and I did my best to explain the issue. It is complicated but I can now take the House a little further forward and give a bit more background. However, I say to the noble Baroness at the start that she and I are absolutely at one: we are all concerned that a council’s reputation should not get tarnished or pre-empted in terms of the standards regime and the courts. I shall try to give her that assurance but I have to take her through why we cannot accept the amendments as they stand—because they do not deal with the problem that we have identified.

The opposition amendments concern Clause 182 and the remit of the ethical regime to include conduct in a local authority member’s private capacity. Taken together, they aim to provide that the principles which govern the conduct of members, the model code of conduct they are required to follow and any additions to the code adopted by an authority should include conduct in members’ private capacity only where that conduct constitutes a criminal offence for which the member has been convicted and which is directly relevant to the official functions of a member. I appreciate how hard the noble Baroness has tried to address the problem by adding the words that she has, and that is why I am sorry to disappoint her.

I certainly understand the concerns of noble Lords about the remit of the ethical regime for local authority members and why they believe it should be limited to include only certain conduct. I certainly agree with the need to limit carefully the private conduct with which the code should be allowed to concern itself in the interests of fair play for councillors.

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The intention behind the amendments is obviously to moderate the effect of the ethical regime by linking the remit of the code to conduct in members’ private capacity which constitutes a criminal offence for which the member has been convicted and which is directly relevant to the member’s official role. Nothing divides us here. I agree that there should be no right—or, indeed, opportunity—to treat a councillor as guilty of an act undertaken in his or her private capacity in advance of the usual criminal process. As I indicated on Report, our intention is that the new conduct regime for local authority members should have that principle at its heart. As I will explain, the standards regime will reflect that in the same way as the 2000 Act already provided for it in respect of the official conduct of councillors.

I shall explain the issue in a little more detail. It is important to have on the record that we have not invented a new regime for private conduct. We are bound by the framework principles on which the 2000 Act, the code of conduct and the conduct regime were based. The regime was deliberately designed to ensure that councillors were as clear as possible about what was and was not covered, and clear that they could take advice on what sort of conduct might fall within the scope of the regime. Since then, the test of that has been whether conduct while performing a councillor’s role—that is, at the time the potential offence was committed—was capable of being “an offence” under the code.

As I explained, in all logic, a breach of the code can apply only to the time at which the actions take place; it cannot be made retrospective. It is fair to say that, although not everyone is in favour of the code in principle—certainly, Members of this House have spoken against it—this aspect of it has not been challenged by local government. Therefore, we have simply replicated the principles and frameworks set out in 2000 in relation to private conduct. I know that in the amendment the noble Baroness has tried to address what she sees as a problem but, given the existing framework of the regime, an amendment to the rules in the way proposed using the phrase,

even given the attempt to make the conviction a certainty—would not remove the problem because, logically, the code would still have to be applied at the time the conduct was committed. As I said, the code cannot, in law, be linked retrospectively to conduct. That restriction would apply even in the case of the phrase referring to conduct that,

As I have said, it is impossible for any conduct ever to have been found to be criminal conduct at the time it was undertaken. A member who has, for example, been accused of an offence relating to child pornography cannot have been convicted of that offence at the time of committing it. This replicates the principles and frameworks on which the regime was set up in 2000.

However, perhaps I may be more positive and set aside the differences between us in terms of the means and set out how my intentions meet those of the noble Baroness. What we are providing for, and what we will make absolutely clear in guidance, is that no one should be presumed guilty until proved so.

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I also want to see that the ethical regime does not operate separately from the criminal process and ensure that no sanction in respect of a criminal offence is imposed by the regime unless a criminal court has first issued a conviction. Our approach to achieving that is to provide certainty in the Bill that the regime’s remit will include conduct in a member’s private capacity which would “constitute a criminal offence”. In effect, that wording means conduct which is capable of being regarded as a criminal offence, and, as we discussed, it allows us to be very clear in secondary legislation about what conduct should be regarded as an offence for the purpose of the ethical regime.

That is one form of clarity. The second is to make it clear in regulation and guidance—here, we will replicate the guidance that already covers official conduct and we will promote it as such—that the judgment on whether a criminal offence has been committed will remain a matter for the courts. Critically, we will make it clear in guidance that, when an allegation involves a criminal prosecution, the procedure of the standards regime must be put on hold to await the outcome of the criminal processes. During that time, the standards committee will not be able to suspend the councillor and nor will the monitoring officer be able to pursue the investigation of the allegation. In the light of that, the only way that a standards committee will be able to conclude that there has been a breach of the code in respect of a member’s private conduct is if the court has convicted the member of that conduct.

Therefore, there is nothing new about the sort of provisions that we have in mind to ensure that cases are put on hold when the criminal process is under way, not least because the Standards Board has in place long-standing guidance to its investigators in cases where investigations into members’ official conduct might prejudice or conflict with police investigations or the court process. The relevant guidance states:

Therefore, we are neither creating a new offence in respect of members’ private behaviour in addition to those already on the statute book, nor creating a new mechanism for judging whether an offence has been committed. The system will rely on the existing rules of the criminal system and on the existing practice whereby the decision-making processes of the ethical regime will not be triggered unless the usual legal processes have indicated that a member has committed the criminal offence.

The ethical regime will not kick in merely where there is an allegation and neither a standards committee nor the Standards Board will be able to intervene in or make decisions on criminal allegations in advance of, or in anticipation of, the operation of the proper criminal processes. The effect will be exactly as the noble Baroness intends by way of her amendment. The approach for conduct in a member’s private capacity to fall within the code where that conduct would

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constitute a criminal offence is supported by the local government world, including the LGA. As I have already mentioned, I am very happy to put that on the record for everyone’s security.

In addition, the amendments seek to provide an additional limitation on the remit of the ethical regime, so that members’ conduct in their private capacity would fall only within the remit of the ethical regime where that conduct constitutes a criminal offence for which the member has been convicted and which is directly relevant to the performance of the official functions of the member. You will not be surprised to hear me say that that is contrary to our policy intention. Indeed, that was one of the problems we had with the JCHR report.

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It is very important to have on record the fact that we are very careful of the reputation of councillors. We are absolutely sure that no one should be judged guilty before a case is proved—everyone is judged to be innocent. That is a view in the processes that we have chosen, which have been accepted and supported by the local government world. I appreciate why the noble Baroness has tabled these amendments and I thank her for going to the trouble of trying to find a solution. I hope that she can accept that we have arrived at a position where we can safely agree the position.

Baroness Hanham: My Lords, I thank the Minister for that very detailed reply. It is a pity that this legislation does not tie itself up with the model code of conduct 2007. It does not say the same thing and it would have been better if it had. Everyone will need to consider a criminal offence with the guidelines in one hand, otherwise they will not come to the same conclusion.

I am also a little alarmed, as the Minister said that where the Standards Board could work out that something was capable of being a criminal offence, but no charges were brought, it could take that on board. Maybe the Minister did not say that, but we need to be clear about it: where no criminal offence is pursued by the authorities, then the Standards Board cannot suddenly wake up and say, “We think we ought to have a go at that as well”. If the Minister could reassure me about that, I think we have probably chewed this as much as we can. It is really helpful when legislation lines up with other matters, so that we are always clear what we are talking about. Perhaps the Minister could put a written response in the Library so that we can be clear that that is what we are talking about.

Baroness Hamwee: My Lords, can the Minister confirm—we had a quick word about this outside the Chamber—that the intention is that there will be no conviction for this purpose until all opportunities for appeal have been exhausted?

Baroness Andrews: My Lords, I can confirm both matters raised by the noble Baronesses. I can certainly give an absolute assurance on the question raised by the noble Baroness, Lady Hanham. The guidance will produce clarity.

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Baroness Hanham: My Lords, I thank the Minister for that reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 56 to 58 not moved.]

Clause 221 [Arrangements under section 220(1)]:

Baroness Andrews moved Amendment No. 59:

“(a) a local authority;(b) a National Health Service trust;(c) an NHS foundation trust;(d) a Primary Care Trust; or(e) a Strategic Health Authority.”

The noble Baroness said: My Lords, we come back to health in Part 14. Government Amendment No. 59 follows our lively debate on Report about whether it is necessary to exclude specifically NHS bodies from the role of host for a local involvement network. The noble Earl, Lord Howe, and the noble Baroness, Lady Neuberger, tabled an amendment along those lines. Although initially I was sceptical, they defended it admirably, so I undertook to go back and think about it. I said that I did not think it was likely; I certainly did not think it was desirable; and it was never our intention. However, the nature of LINks meant that local authorities should decide for themselves which host is best suited to serve the local area. Noble Lords were clearly not satisfied with that. I can see that it is an issue where absolute certainty is important, so I am very happy to amend the Bill in this respect.

The noble Earl and the noble Baroness have their way. I hope they are pleased that we have been able to agree that NHS bodies should be excluded, not only from being LINks but from being hosts. I sincerely hope they will support the amendment. I beg to move.

Earl Howe: My Lords, this concession by the Government is extremely welcome. I thank the Minister for having taken our concerns away and for responding so positively. I shall return briefly to the issue I raised in Committee on the position of a private provider of services acting as a host. The Government made it clear that they were not prepared to build in an exclusion covering private providers. If it is inappropriate for a foundation trust to be a host, then in logic it seems equally inappropriate for a private provider to be a host in a local authority area if that provider provides services in that same area. I do not think that there need be anything to stop that organisation being a host somewhere else and managing any apparent conflict of interest in an appropriate way.

If the Government are not to amend the Bill in the way that I and others originally proposed—clearly there is no opportunity for them to do so—will they consider making it clear in guidance when it is appropriate for a local authority to appoint a private provider as a host and when it is not? If they were to do so, that would go a long way to resolving some of the residual concerns that I and, I suspect, the noble Baroness still have.

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Baroness Neuberger: My Lords, I thank the Minister for this concession. It has given a considerable amount of relief to the noble Earl, Lord Howe, and me. There still seems to be the issue—certainly members of patients’ forums are still writing about it—of a host also being a voluntary organisation that is a provider of services, which means there could be a conflict of interest. I hope that the Minister will be able to reassure us about what might be in guidance to make that more difficult than it appears at the moment. I am very grateful.

Baroness Andrews: My Lords, when we debated conflicts of interest at earlier stages of the Bill we talked about the practice that voluntary organisations traditionally have of managing interests. This is not a new situation to them. Dealing with conflicts of interest was one of the criteria for making a robust arrangement with a host. I take the point about private providers. We wrote to noble Lords addressing some of the issues that were raised about private providers last time round, but we can make it absolutely clear what conduct we would expect in the guidance.

On Question, amendment agreed to.

Baroness Andrews moved Amendment No. 60:

(a) prescribed provision relating to the way in which certain decisions of a local involvement network are to be taken;(b) prescribed provision relating to the authorisation of individuals as authorised representatives within the meaning of section 223(5);(c) prescribed provision relating to the use by a local involvement network of money derived from the arrangements;(d) prescribed provision relating to the consequences of contravention by a local involvement network of any provision of the arrangements.(a) which are made in pursuance of the local authority arrangements; and(b) under which a person is to carry on activities specified in section 220(2);

The noble Baroness said: My Lords, government Amendment No. 60 addresses other concerns that were expressed persuasively by noble Lords that the Bill does not go far enough to ensure the effective governance of local involvement networks. Throughout the passage of the Bill, we have had debates about what constitutes the shape and visibility of a LINk and how one would recognise a LINk when one saw

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one. In Committee and on Report the noble Earl, Lord Howe, was concerned about those matters and particularly about the effectiveness and accountability of a LINk if it chose not to have any governance arrangements at all, which we thought was unlikely given the activities that it was to undertake. Throughout the passage of the Bill and in getting ready for LINks guidance and elsewhere, we have made it clear that the intention has always been to make provision for governance arrangements.

We have always seen these specific arrangements as reflecting what the local networks themselves see as the best way of achieving their goals. Indeed, as you look at the early adopter projects you see different forms of relationships between hosts, LINks and networks, and the emergence of different governance arrangements. It is clearly a key feature of LINks that they are to be creatures of their own communities rather than central government. This has never meant that we would encourage anarchy to reign, but rather that we respect the different ecologies operating in local areas and that they might adopt different forms of governance to reflect the breadth of the network, the relationship with the host, programmes of work and so on.

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