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Baroness Farrington of Ribbleton: My Lords, we cannot accept that the current provisions of the Bill are deficient. Clause 54(4) provides that an ESO cannot conduct an investigation in relation to a member of another authority if within the past five years he had been an officer or member. In addition, Clause 54(5) provides that:


irrespective of when it occurred--


    "which is, or is likely to be, the subject of an investigation",

must disclose that interest to the standards board and must take part in the investigation. This means that if an ESO had been a member or officer of an authority that was the subject of an investigation more than five years previously and there was still some issue that could reasonably be expected to influence his conduct of the investigation, the ESO must declare it and not take part in the investigation.

In making our provisions, we have sought to strike a reasonable balance between an outright prohibition, as suggested by the noble Lord, and the requirement to declare all relevant matters. We believe that these provisions taken together provide sufficient protection. I hope that the noble Lord feels reassured and will feel able to withdraw the amendment.

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Lord Dixon-Smith: My Lords, I am grateful to the noble Baroness for her response. Her words do reassure me but I shall need to consider them with a little care before I decide what I finally do about the amendment. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 59 [Interim reports]:

Lord Dixon-Smith moved Amendment No. 74:


    Leave out Clause 59.

The noble Lord said: My Lords, Amendment No. 74 is what I would call a nuclear option with regard to Clause 59 because it seeks to remove the clause from the Bill. I must have been tired when I was preparing for this stage. I could not sit down and work out in detail amendments to Clause 59 to answer my particular concerns about it.

Clause 59 provides for a member to be suspended by an investigating officer if the investigating officer considers that the case is sufficiently serious and urgent to justify that. I do not have any difficulty with that proposition except in one regard. As I read the Bill, the investigating officer can do that on his own. I think that is right. He should have to refer to someone so that there is the opinion of more than one person. He should have to refer to a superior and say, "Look, this is the situation. I think that we should go for an immediate suspension and I would like your sanction for that". I apologise to the House for not being able to devise amendments to the clause to make clear my intention, but I had to table the amendment very quickly after returning from a few days away. I had expected to have a little more time but the exhaustion factor crept in. However, I think that the point I am making is a valid one. If the Minister tells me that he is prepared to consider it, I shall be quite happy with that for today's proceedings. There is time for it to be considered. I beg to move.

Lord Whitty: My Lords, I can understand the noble Lord's weariness by this stage of the Bill. It is difficult to achieve the objective so the noble Lord has decided to seek to delete the clause altogether. I actually believe that the provision meets what he is after.

Clause 59 provides that an ESO may issue an interim report recommending a suspension pending the outcome of a full investigation. The report will be referred to the president of the adjudication committee, who will convene a case tribunal under Clause 62(2) to make a decision. We envisage that these reports will be used very rarely. When an allegation is particularly serious--for example, when there is the allegation of financial misdemeanours--it would be sensible to move the councillor out of that situation on an interim basis. That could mean out of one committee or it could mean out of the whole council. We believe that we need that leeway. But in terms of an individual taking that decision, full-stop, the noble Lord is not right because of Clause 62(2).

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Lord Dixon-Smith: My Lords, I am grateful to the Minister for that reply, although I am not completely reassured by it. The investigating officer has the power to suspend the member immediately. The member could remain under provisional suspension without reference to anyone else. I accept that one then has to go through all the rest of the procedure and that that should provide a proper safeguard. However, if it were the case--here I go again with my awkward mind--that the investigating officer had got it wrong, it could do irreparable damage to the reputation of someone through inadvertence. He would not wish to do that. The individual concerned would be immensely hurt if it happened, and rightly so. That is why I felt that it was necessary to have some provision for reference elsewhere before even a provisional suspension took place. Nonetheless, I shall study what the Minister has said. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carter: My Lords, perhaps I may intrude just for a moment. Without in any way attempting to truncate debate, I think there is a reasonable chance that we could finish this stage of the Bill by about eight o' clock. If that is the case I suggest that we go straight through. To be fair to those who are waiting to debate the orders, we should do our best to finish by then.

Lord Dixon-Smith moved Amendment No. 75:


    After Clause 65, insert the following new clause--

POWER TO MAKE RESTITUTION ORDERS

(" . Where matters considered by an interim tribunal or a case tribunal are or become the subject of criminal proceedings in a court, it shall be open to that court, in considering any penalty resulting from a verdict of guilty, to apply a requirement, as a part of any penalty, that a restitution order be made so that any loss to the local taxpayer is repaid.").

The noble Lord said: My Lords, in Committee we had an interesting debate about whether it would be possible for the investigations by the ethical standards officer to come up with a recommendation for a restitution order against someone who committed an offence. The Minister went a great distance towards satisfying me on this point. He pointed out, I think with justification, that a restitution order would in effect amount to the kind of judgment that would be made in a criminal case. The laws of evidence in these tribunals would not be as strict as the laws of evidence in a court of law. That is a powerful argument.

I then went on to consider--my wicked mind again--what would happen in the event that someone commits a major financial impropriety which disadvantages the local taxpayer. The ethical standards officer investigating that would suspend the member. But if the case was of that severity, it would

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be likely to finish up in court anyway, which was the other arm to the Minister's argument as to why we do not need my restitution order. I then tried to find out whether in a case of this nature there was a penalty in the event of a guilty verdict which would involve a restitution order. We are familiar with such orders with regard to drugs and some other crimes. But no one has been able to tell me whether, in a case of this kind of financial malfeasance against a local authority, a restitution order is presently available to a magistrates' court against a guilty party.

I believe that there should be such a possibility. It may not always work--we are all familiar with the problem of unpaid fines against particular individuals. But I do not think that an individual should be able to gain illicitly at the expense of the local taxpayer. If a person is found guilty of so doing, a restitution order should be possible. The amendment is designed specifically to make that a possibility, because I could not find any such provision. If the Minister assures me that such a penalty is presently available and could be used, I shall happily withdraw the amendment. I beg to move.

7.30 p.m.

Lord Whitty: My Lords, I think I am able to satisfy the noble Lord that the mechanisms already exist. It is not the intention that the ethical framework will deal with criminal issues. Where criminal misconduct is suspected, the matter will be passed to the police or the appropriate authority. However, I assure the noble Lord that in those criminal cases that come before the court, where the actions of a councillor have resulted in financial loss to the authorities, they can already order restitution from the councillor if they consider it appropriate.

Nor does that prevent an authority from separately seeking to recover losses arising from misconduct, which it may do either by seeking a compensation order in criminal cases or through civil proceedings. So a number of lines are already available to local authorities to seek restitution. Actually collecting the money, as I pointed out earlier, may be a different matter. But as regards seeking restitution orders and having the means to establish the liability of a councillor, substantial mechanisms are already available to authorities to cover, I believe, all the contingencies about which the noble Lord is concerned.

Lord Dixon-Smith: My Lords, I am happy to hear the Minister's response. He will be pleased to hear that I shall happily refer it to my legal colleagues. On the assumption that he is right--I am sure he is and pay him absolute credit--it seems that they have learnt, as indeed have I, from the tabling of this amendment. In the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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