I support the need to discuss and debate these regulations. The issues have been laid out more than clearly by my noble friend Lady Lister. This stems from the Shaw review, reinforced by the subsequent Brook House inquiry.
The principle that we work under—I am sure that we all agree with it—is that the detention of people with severe mental health conditions amounts to inhuman and degrading treatment. I hope we can all agree on that. It has been defined as such by the European Court of Human Rights, but the issue runs wider than that. There should be—indeed, there must be—a clear presumption that people at risk because of existing or potential mental health problems should not be detained. “Detained” is a euphemism; they are, in effect, imprisoned. We imprison people as a punishment, so the need to avoid providing these people with punishment is clear.
The statutory guidance was established in 2014 and has been reviewed. One could not object to the review at all; I hope that my noble friend the Minister will accept that a full and adequate review is reasonable. The problem with this review is that it is driven— it says as much in paragraph 5.4 of the Explanatory Memorandum—by a wish to avoid “undermining lawful action” to remove people from the UK. That is the most concerning statement in the EM. Such an objective is totally at odds with the general principle that we
should not imprison people with severe mental health conditions when they have committed no offence. The story it tells us is one of an attitude in government of wishing to prioritise the need to remove people from the UK rather than protecting people who are vulnerable.
The statutory guidance clearly represents its purpose: a weakening of the guidance originally given. One particular example, which is clearly a major issue here, is the issue of a second opinion. As the Secondary Legislation Scrutiny Committee concluded, the data
“does not provide compelling evidence either way on the need for the second opinion policy”.
We do not really know what the effect of the second opinion policy would be, except that it will result in people remaining in detention for longer; that is the one known effect of having a second opinion policy. Clearly, that in itself suggests that it is something to be done with great care and attention.
Another problem is that there is a general belief among a number of the voluntary organisations most closely involved in these issues that the consultation process on the new statutory guidance was woefully inadequate. It was short, there was a lack of information and there was no equality impact assessment.
The upshot of all of this is that I hope my noble friend the Minister will accept that the statutory guidance requires review and reconsideration, and that it should be driven by the clear presumption that we do not lock up people with severe mental health conditions.
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