Mental Health Bill [HL]

My Lords, I thank the Minister very much for his efforts over the past few weeks to enable me, the noble Earl, Lord Howe, and others to meet the Bill team and parliamentary counsel. I have never had the experience of meeting parliamentary counsel before and it was extraordinarily helpful that we did so, not least because members of the legal profession are often wont to say things by omission rather than put things expressly in terms. It was very helpful to learn directly from them exactly what was meant by omission in the wording. This amendment is a compromise and, as such, it is unlikely to satisfy anyone. There are things that we would have wished to see in it and there are things that we would rather were not there, but, like the noble Earl, Lord Howe, I accept that this may be as good as we will get. Others—in which I include my noble friend Lord Carlile, who is unable to be here today because he is unwell—are less than happy. They have carefully read the wording of the amendment and are firmly of the view that it offers no legal protection whatever. The noble Earl, Lord Howe, has already referred to the remarkable speech made by Rosie Winterton on 1 March. As one would expect, I disagree with much of it, but on one point we are in agreement. She said that mental health legislation is an extremely difficult and sensitive issue. So it is, and that is why I do not apologise for asking the noble Lord a series of questions to which I, too, require answers. People making decisions under this provision are to, "““have regard to the code””." As I mention that, I notice that the noble Lord, Lord Campbell of Alloway, is in his place. Today, it is our duty to probe the Minister on exactly what those words mean. In particular, do the Government not intend there to be a right to disapply the principles in certain circumstances? I ask that because that was a provision of the 2004 Bill. I am sure that the Minister will be only too well aware that that proposal was firmly rejected by the joint scrutiny committee, so it would be very helpful today if he could answer that point. The Minister will recognise that the amendment gives a status to the principles in the code. Does that mean that they cannot be departed from? If they can be departed from, can he tell us how and in what circumstances? Does the Minister agree that minimising restrictions of liberty means that voluntary treatments should be preferred over compulsory ones? That argument has run throughout our deliberations and I should welcome a statement from him on it. Like the noble Earl, Lord Howe, I should like confirmation that the principle of ““efficient use of resources”” cannot be used to deny or frustrate the application of the other principles. That leads me to one further point. We have in front of us a list. That, in itself, is extraordinary: lawyers hate lists, as we are told all the time. Can the Minister confirm that there is no order of precedence in this list and that there is no interplay between the different principles, but that they all have an equal weighting and an equal value? I ask that in order to address the point made by the noble Lord, Lord Soley, about determining the exact words of the code of practice and the relationship between the two. I disagree with him—that will be no surprise to him after the past three months of deliberation. I do not think that lawyers should determine the meaning; it should be a matter that returns to Parliament. That leads me to another point. The amendment amends Section 118 of the Mental Health Act 1983. Under that section, amendments to change the code come under a negative procedure. Does the Minister agree that this matter is of such importance and has been given such detailed attention in your Lordships’ House that any review should be by a positive procedure? Will he please explain how the Secretary of State will arrive at a judgment about whether action should be taken under the code of practice? Will there need to be evidence, and will such decisions by the Secretary of State be subject to judicial review? I have some further points to make. I rebut firmly one charge made by Rosie Winterton in her speech on 1 March, using arguments and phrases that we have heard a lot in the past few months—principally from the Government’s mental health adviser. She said of your Lordships’ House that we had not put the public at the heart of our deliberations. That is completely and utterly wrong. Even a cursory neutral reading of the proceedings of our debates would show that they have been lengthy, well informed and not without a great deal of argument. They have always been predicated on the understanding that mental health legislation exists to protect patients and the public, and that there will always be a need for compulsory treatment within such measures. Your Lordships’ House is entitled to reject utterly and completely that accusation, which is false and without basis. We have considered all the information and evidence before us—including that put forward by the Government—to put together legislation that we believe will lead to services that mental health patients will not fear, and from which they will not run. In so doing, we will make this country safer because we will not leave people who are very ill outwith the social services to become more ill and a danger to themselves and others. That has been our central consideration on the Bill. I too thank the Minister and the noble Baroness, Lady Royall, who in very difficult circumstances and with unhelpful noises off have sought to approach the matter in the spirit of your Lordships’ House by being unendingly courteous and helpful to those of us who have worked on the Bill—at no mean cost to themselves. We would not have managed to improve the Bill as we have done had they not been in charge of it, so I congratulate them. When the Bill came to the House on Second Reading it was welcomed by many noble Lords who, at the same time, called it deficient, depressing and fundamentally flawed. It is still flawed, but it is a much better Bill than the one that we received. I hope that when it goes to another place, Members, in the spirit of this House, will pass legislation that is strengthened rather than weakened, and which will make this country a safer place for the people who are mentally ill and for all those who care for them.