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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.
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 restrictions. I wonder how that fits into the slightly wider scheme 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.
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.
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.
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.