HL Deb 01 February 2000 vol 609 cc213-23

(".—(l) A standards committee of a district council is to have the same functions in relation to—

  1. (a) the parish councils for which the district council are the responsible authority, and
  2. (b) the members of those parish councils,

as the standards committee has under section 39(1) and (2) in relation to the district council and the members of the district council.

(2) A standards committee of a unitary county council is to have the same functions in relation to—

  1. (a) the parish councils for which the county council are the responsible authority, and
  2. (b) the members of those parish councils,

as the standards committee has under section 39(1) and (2) in relation to the county council and the members of the county council.

(3) A standards committee of a district council or unitary county council may appoint a sub-committee for the purpose of discharging all of the functions conferred on the standards committee by this section.

(4) In deciding whether it will be their standards committee, or a sub-committee of their standards committee, which is to discharge the functions conferred by this section, a district council or unitary county council must consult the parish councils for which they are the responsible authority.

(5) The number of members of a sub-committee of a standards committee of a district council or unitary county council, and the terms of office of those members, are to be fixed by the standards committee after consultation with the parish councils for which the district council or unitary county council arc the responsible authority.

(6) Where the standards committee of a district council or unitary county council discharges the functions conferred by this section, the standards committee—

  1. (a) must include at least one member of any of the parish councils for which the district council or unitary county council are the responsible authority, and
  2. (b) must ensure that at least one person falling within paragraph (a) is present at any meeting of the committee when matters relating to those parish councils, or the members of those parish councils, are being considered.

(7) Where a sub-committee of the standards committee of a district council or unitary county council discharges the functions conferred by this section, the sub-committee must include—

  1. (a) at least one member of the standards committee who falls within section 38(3)(b), and
  2. (b) at least one member of any of the parish councils for which the district council or unitary county council are the responsible authority.

(8) Regulations under section 38(5)(a) and (c) may make provision in relation to sub-committees appointed under this section, and regulations under section 38(5)(b) may make provision as to the appointment of persons falling within subsection (6)(a) or (7)(a) or (b) of this section.

(9) Subsections (6A), (7), (8) and (10) of section 38 apply in relation to sub-committees of standards committees appointed under this section as they apply in relation to standards committees.

(10) Subsections (4) and (6) of section 39 apply in relation to sub-committees of standards committees appointed under this section as they apply in relation to standards committees.

(11) In relation to a parish council, any reference in the following provisions of this Part to the standards committee of a relevant authority is a reference—

  1. (a) to the standards committee of the district council or unitary county council which is the responsible authority in relation to the parish council, or
  2. (b) where that standards committee has appointed a subcommittee under this section, to that sub-committee.

(12) A district council or unitary county council is the responsible authority—

  1. (a) in relation to a parish council which is not a common parish council, if the parish is situated within the area of the district council or county council,
  2. (b) in relation to a parish council which is a common parish council—
    1. (i) if the parishes in the group are wholly situated within that area, or
    2. (ii) where that is not the case, if the greatest number of local government electors for the parishes in the group is situated in that area.

(13) In this section "unitary county council" means the council of a county in which there are no district councils.").

On Question, amendment agreed to.

Clause 40 [Standards Boards]:

Lord Whitty moved Amendments Nos. 308 to 313: Page 22, line 37, al. end insert ("under this. subsection"). Page 22, line 42, leave out ("their members") and insert ("the members and co-opted members of such authorities"). Page 22, line 42, at end insert (", and (c) may arrange for any such guidance to be made public"). Page 22, line 45, al end insert ("under this subsection"). Page 23, line 5, leave out ("their members") and insert ("the members and co-opted members of such authorities"). Page 23, line 5, at end insert (", and (c) may arrange for any guidance so issued to be made public").

On Question, amendments agreed to.

Clause 40, as amended, agreed to.

Schedule 3 [Standards Boards]:

Lord Whitty moved Amendment No. 314: Page 46, line 23, leave out from ("person") to ("an") and insert ("may not be employed as").

On Question, amendment agreed to.

Baroness Hamwee moved Amendment No. 314A: Page 46, line 26, after ("is") insert ("or has within the previous three years been").

The noble Baroness said: I beg to move Amendment No. 314A and I shall not yield to the temptation to say, "moved formally". Paragraph 3 of Schedule 3 sets out certain disqualifications to being appointed as a member of a standards board. Those include being a member or an officer of a local authority. The amendment seek; to extend the disqualification to include membership or having been an officer within the previous three years. I take the point that it would be inappropriate for a current member or officer to serve on a standards board. Obviously there might be conflicts of interest and criteria must be laid down that will enable the public to know that the right thing is not only being done but is being seen to be done. I believe that that should include recent past membership or postholding.

One carries one's personal baggage, but it diminishes in size as time goes on. Nevertheless, recent membership might give an individual a particular slant on affairs which would not be appropriate for a member of a standards board. In particular, I believe that the public would expect to see those with recent local authority membership being disqualified.

Lord Whitty

The Government feel that personal baggage can be positive as well as negative and that the amendment tabled in the name of the noble Baroness would be unduly restrictive. The problems she envisages have already been provided for in Clause 43(3), which states that an ESO cannot conduct an investigation in relation to a member of an authority if within the past five years that ESO has been a member of an authority. Clause 43(4) provides that an ESO who is directly or indirectly interested in any matter likely to be the subject of an investigation must disclose that interest to the standards board and must not take part in the investigation. Therefore, the issue of abuse is already covered. I believe that it will be unduly restrictive to exclude anyone who has had recent experience of membership or employment by a local authority from the possibility of being appointed an ESO. I hope that the noble Baroness will accept that.

Baroness Hamwee

I was not seeking to deal with a particular interest or involvement. Of course, I accept what the Minister said, but it does not address the point that I was making. I believe that a little gap gives greater objectivity. However, that is another point of disagreement between ourselves and the Government. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Whitty moved Amendments Nos. 315 to 319: Page 46, line 27, leave out ("(by co-option) of a committee") and insert ("of a committee, sub-committee, joint committee or joint sub-committee"). Page 47, line 20, leave out ("case"). Page 47, line 23, leave out ("case"). Page 47, line 27, leave out ("case). Page 47, line 41, leave out ("Secretary of State") and insert ("National Assembly for Wales"). Page 48, line 36, leave out ("local") and insert ("relevant"). Page 48, line 36, leave out ("(or a member by co-option of a committee)"). Page 48, line 37, at end insert ("or (b) a member of a committee, sub-committee, joint committee or joint sub-committee of that authority").

On Question, amendments agreed to.

Schedule 3, as amended, agreed to.

Clause 41 [Written allegations]:

Lord Whitty moved Amendments Nos. 320 to 323: Page 23, line 9, leave out ("members") and insert ("co-opted member"). Page 23, line 10, leave out first ("have") and insert ("has"). Page 23, line 16, leave out ("members") and insert ("co-opted member"). Page 23, line 16, leave out ("have") and insert ("has").

On Question, amendments agreed to.

[Amendment No. 323A not moved.]

Clause 41, as amended, agreed to.

Clause 42 [Functions of ethical standards officers]:

Lord Whitty moved Amendments Nos. 324 to 329A: Page 23, line 26, leave out ("members") and insert ("co-opted member"). Page 23, line 26, leave out ("have") and insert ("has"). Page 23, line 34, leave out ("members") and insert ("co-opted member"). Page 23, line 34, leave out first ("have") and insert ("has"). Page 24, line 4, leave out ("standards committee") and insert ("monitoring officer"). Page 24, line 7, after ("referred") insert ("to"). Page 24, line 8, leave out ("case").

On Question, amendments agreed to.

Lord Whitty moved Amendment No. 329B: Page 24, line 8, at end insert ("falling within section 50(1)").

The noble Lord said: I beg to move Amendment No. 329B and the other amendments referred to in this group. The Committee will recall that Part III was fortunate to be considered in draft by the Joint Committee chaired by the noble Lord, Lord Bowness. One of the recommendations of that committee was that the power of interim suspension currently vested in the ethical standards officer should be reserved to the adjudication panel, where appropriate, on application from the ESO. Government Amendment No. 329B and the amendments grouped with it give effect to that recommendation, making consequential amendments to the Bill where necessary. I commend this group of amendments which implement the Joint Committee's recommendations.

On Question, amendment agreed to.

Clause 42, as amended, agreed to.

Clause 43 [Conduct of investigations]:

Lord Whitty moved Amendment No. 330: Page 24, line 11, after ("member") insert ("or co-opted member").

On Question, amendment agreed to.

Baroness Farrington of Ribbleton moved Amendment No. 330A: Page 24, line 14, at end insert— ("(2A) An ethical standards officer to whom an investigation under section 42 is assigned may—

  1. (a) cease the investigation at any stage before its completion, and
  2. (b) refer the matters which are the subject of the investigation to the monitoring officer of the relevant authority concerned.").

The noble Baroness said: Amendments Nos. 330A and 344C concern the referral of cases from the ethical standards officer (ESO) of the standards board to the monitoring officer of the local authority and the action that a local authority may take on them. As Members of the Committee know, we agree with many of the recommendations made by the noble and learned Lord, Lord Nolan, in his report—the third report of the Committee on Standards in Public Life. However, we have decided to go further than that report by establishing external independent investigation and adjudication. As the noble and learned Lord, Lord Nolan, envisaged, we have assigned important roles to local authorities, through the adoption of codes of conduct and the establishment of standards committees. The draft Bill published in March did not, however, assign a role to local authorities in dealing with individual cases.

That issue was considered by the Joint Committee chaired by the noble Lord, Lord Bowness, and we are grateful for that consideration. The committee recommended that a, power of temporary exclusion of members of the authority—perhaps for a period of up to four weeks—be given to the local standards committee".

In their response to the Joint Committee, the Government accepted that there may be occasions when standards committees would wish to impose penalties on councillors but recognised that before conferring such powers, they would have to be assured that they would be exercised fairly and responsibly and dovetail with the statutory powers conferred on the adjudication panel.

Because it will be for the standards committees to establish their credentials within their councils before becoming involved in what are potentially more controversial matters and, as we pointed out in our Joint Committee response, we need to be confident that an authority's procedures are robust and fair, the provisions in these amendments will enable the role played by the standards committees to grow as the system evolves. I beg to move.

On Question, amendment agreed to.

11.30 p.m.

Lord Whitty moved Amendment No. 331: Page 24, line 16, leave out ("members") and insert ("co-opted member").

On Question, amendment agreed to.

[Amendments Nos. 331A and 331B not moved.]

Lord Whitty moved Amendment No. 332: Page 24, line 19, leave out ("(by co-option) of a committee") and insert ("of any committee or sub-committee").

On Question, amendment agreed to.

Clause 43, as amended, agreed to.

Clause 44 agreed to.

Clause 45 [Investigations: further provisions]:

Lord Whitty moved Amendments Nos. 333 and 334: Page 25, line 12, leave out ("members") and insert ("co-opted member"). Page 25, line 27, leave out ("members") and insert ("co-opted member").

On Question, amendments agreed to.

Clause 45, as amended, agreed to.

Clause 46 [Restrictions on disclosure of information]:

Lord Whitty moved Amendment No. 334A: Page 26, line 32, leave out ("case").

On Question, amendment agreed to.

Baroness Hamwee moved Amendment No. 334B: Page 26, line 40. leave out from ("Kingdom") to end of line 41.

The noble Baroness said: I am rather reluctant to do anything for the convenience of the Committee because I have a personal feeling—and I speak only for myself—that we are failing to do justice to some of the amendments, no doubt because there are some Members of this Committee who simply want to get to the end of the Bill.

However, as it may be for the convenience of the Committee, I shall speak also to Amendment No, 334C because the amendments deal with the same or a related point.

Clause 46 deals with restrictions on the disclosure of information and Clause 46(1)(d) allows information to be disclosed if it is, for the purposes of criminal proceedings in any part of the United Kingdom and the information in question was not obtained under section 45(2)".

My two amendments deal with that paragraph. They suggest, first, that we exclude the reference to information not being obtained under Section 45(2) and, secondly, provide that if the disclosure is ordered by a court of competent jurisdiction—which I readily accept may be more contractual language than parliamentary but nevertheless serves the purpose—that information should be disclosed.

In particular, I seek to understand the position of the information in connection with civil proceedings. Is information not to be made available for civil proceedings, or is it for criminal proceedings only if it is obtained in certain circumstances?

I am concerned about the restrictions contained within the section, which on the face of it seems to be lifting restriction;. I wonder how that fits into the slightly wider schmie of things. I beg to move.

Lord Whitty

I understand the apparent attractions of this amendment. We certainly expect the standards board and its ethical standards officers to co-operate with the police as far as is practical. They have wide powers to collect information. In addition to their rights of access to all relevant documents, they may make whatever inquiries they think appropriate and require whatever information or explanation they think necessary. That may require someone to attend before them.

The Bill obliges individuals to comply with the requests from ESOs for information. If they do not comply, they may well be found guilty of a criminal offence. We believe that ESOs should have those powers. However, having those powers also means that we need to make them compatible with the European Convention on Human Rights. Article 6 of that convention provides the right for a fair trial. The recent judgment in the case of Saunders v UK ruled that some of the basic components of that are the right to silence and the right not to incriminate yourself. In the transfer of documents, one could find oneself in that territory.

It would not therefore be correct for the Bill to compel someone to provide information which might then directly be used to incriminate them in a criminal prosecution. That could breach the individual's rights to silence and prejudice a criminal prosecution.

If people are to be compelled to give evidence to an ESO, we need to ensure that that evidence cannot then be used in a criminal prosecution. We therefore believe that the amendment is flawed in that respect. I assure the Committee that that would not hamper subsequent criminal proceedings. Documents collected by the ESO could be shared, but it would be for the police to collect their own witness statements and not for the ESOs to pass them on.

As regards Amendment No. 334C, we have included the restrictions in Clause 46 simply to protect individuals from the inappropriate disclosure of sensitive material. I am sure that the noble Baroness and the Committee will agree that we must be careful not to prejudice the ESOs' function of investigating allegations of misconduct. As such, access to information held should not undermine the investigation or punishment of breaches of the code. We are concerned that if information could be released for purposes other than those currently listed, that could happen. That may simply be because the information is released earlier than is helpful giving a councillor under investigation the opportunity to destroy related evidence, for example. In such cases it would be contrary to the public interest to disclose the information.

The amendment, as it stands, would allow for anyone to seek a court order for the release of the information held. That could create obvious problems in the disclosure of confidential and personal information, much of which would be vital to an investigation and would be subject to the need to retain control of that information until the investigation is concluded. It would also allow for the disclosure of sensitive information which, although collected during the course of an investigation, would have no bearing on the final result.

The amendment, as drafted, would override the other provisions of Clause 46 and would therefore remove these protections, and we could not accept it.

Baroness Hamwee

Those comments are helpful. It is a difficult area. I was going to say that it is a technical area, but it is much more than that.

It occurs to me that I might take a little further advice on this matter and the obvious person from whom to take advice—I am sure that the Minister will regard this as helpful and not a threat—is my noble friend Lord Lester. That is not for this evening. I shall look at the matter again but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 334C not moved.]

Clause 46, as amended, agreed to.

Clause 47 [Reports]:

Lord Whitty moved Amendment Nos. 335 to 337: Page 27, line 40, leave out ("standards committee") and insert ("monitoring officer"). Page 28, line 3, leave out ("case"). Page 28, line 3, after ("tribunal") insert ("falling within section 50(1)"). Page 28, line 8, leave out ("a member or") and insert ("any members or co-opted"). Page 28, line 11, after ("member") insert ("or co-opted member").

The noble Lord said: With the leave of the Committee I shall move Amendments Nos. 335 to 337 en bloc. I beg to move.

On Question, amendments agreed to.

Clause 47, as amended, agreed to.

Clause 48 [Interim reports]:

Baroness Farrington of Ribbleton moved Amendment No. 338: Page 28, line 18, leave out ("or on their behalf").

The noble Baroness said: Amendment No. 338 is a technical amendment to achieve our intention that ethical standards officers—ESOs—should have full responsibility for the conduct of investigations into allegations of councillor misconduct. In order to ensure that the function of conducting the investigation, and therefore responsibility for it, remains with the ESO, the Government are advised that it is necessary to make a technical amendment to remove the words, "on their behalf" from the draft Bill. I beg to move.

On Question, amendment agreed to.

Lord Whitty moved Amendments Nos. 339 to 340A: Page 28, line 20, leave out ("a member or") and insert ("any members or co-opted"). Page 28, line 27, leave out ("52(3)(b)") and insert ("52(3A)(b) or (3B)(b)"). Page 28, line 29, leave out ("conclude") and insert ("include a recommendation").

The noble Lord said: With the leave of the Committee I shall move Amendments Nos. 339 to 340A en bloc. I beg to move.

On Question, amendments agreed to.

Lord Whitty moved Amendment No. 340B: Page 28, line 29, after ("suspended") insert ("or partially suspended").

The noble Lord said: In moving Amendment No. 340B I shall speak also to the related amendments. Amendment No. 340B deals with the provisions in relation to the extent of suspensions but the substantive amendment is Amendment No. 347 and I shall speak primarily to that.

The Bill currently provides that a case tribunal may suspend a councillor from being a member of an authority or from any committee or sub-committee of an authority. In addition, Amendment No. 347 would enable the case tribunal to suspend the councillor from the executive or any other bodies on which they serve in their capacity as councillor, such as, for example, a school governor or local authority company.

It is important that in making its recommendations the case tribunal has as many options as possible at its disposal. The tribunal must be able to impose the penalty best suited to a particular breach of the code. In certain circumstances it may be felt necessary to suspend the councillor from the whole council but it is conceivable that for many breaches suspensions from individual activities, such as membership of a planning committee or a scrutiny committee, would be more appropriate. We do not want to tie the hands of the tribunal so that it is limited in the number of choices it may make.

Amendment No. 347 is the substantive amendment. The other amendments effectively carry it through. I beg to move.

On Question, amendment agreed to.

Lord Whitty moved Amendments Nos. 341 to 344B: Page 28, line 30, after ("member") insert ("or co-opted member"). Page 28, line 30, leave out from second ("authority") to end of line 31. Page 28, line 31, at end insert— ("( ) The period of suspension or partial suspension which may be recommended under subsection (3) must not exceed six months or (if shorter) the remainder of the person's term of office."). Page 28, line 32, after ("Where") insert ("an ethical standards officer produces"). Page 28, line 32, after ("section") insert ("which"). Page 28, line 32, leave out ("conclusion") and insert ("recommendation"). Page 28, line 33, leave out from ("(3)") to end of line 46 and insert ("he must refer the matters which are the subject of the report to the president of the relevant Adjudication Panel for adjudication by a tribunal falling within section 50(1A)."). Page 29, line 1, leave out ("subsection") and insert ("section"). Page 29, line 2, after ("member") insert ("or co-opted member"). Page 29, line 4, at end insert ("and ( ) to the president of the relevant Adjudication Panel."). Page 29, line 5, leave out subsections (10) and (11) and insert— ("(10A) Any reference in this Part to a person being partially suspended from being a member or co-opted member of a relevant authority is a reference to a person being prevented from exercising particular functions or having particular responsibilities as such a member or co-opted member.").

The noble Lord said: With the leave of the Committee I shall move Amendments Nos. 341 to 344B en bloc. I beg to move.

Baroness Hamwee

Perhaps I can ask the Minister to explain the thinking behind Amendment No. 342A relating to the period of suspension or partial suspension. The Government have clearly gone through a thought process in arriving at this proposal. Perhaps in two sentences the Minister could share it with the Committee.

11.45 p.m.

Lord Whitty

This was dealt with when we discussed Amendment No. 329B. I referred to the matter in that context. I believe that the noble Baroness said then that she would need to consider my comments. Amendment No. 342A refers to a, period of suspension or partial suspension which … must not exceed six months". I think I had better beg the indulgence of the Committee and that of the noble Baroness and say that I shall write to her on this particular proposition.

On Question, amendments agreed to.

[Amendment No. 343 had been withdrawn from the Marshalled List.]

Clause 48, as amended, agreed to.

Lord Whitty moved Amendment No. 344C: After Clause 48, insert the following new clause—