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as a modest measure to protect the consumer --always bearing in mind, of course, that the creation of large and successful markets gives the best protection to consumers because of the competitive nature of those markets. We should never lose sight of that.It is important that descriptions of property should not be false or misleading and that is why the Government support the Bill. It would not overburden estate agents or others, but would merely underline existing good practice. Where there is obvious good practice and an obvious principle at stake it is no bad thing that they should be enshrined in legislation. The Bill is not regulatory but simply requires accuracy, honesty and prudence from those selling property. I do not think that the House should ask for anything more or anything less from estate agents.
On enforcement, I estimate that the burden on the public purse would be minimal. Enforcement would be the responsibility of local trading standards departments which are already involved with and experienced in the enforcement of a range of similar legislation. I envisage that enforcement will in general take the form of responding to complaints, carrying out investigations where appropriate, securing future compliance and, in the most serious cases--probably very rare--proceeding with prosecutions.
The schedule contains powers of entry and inspection which are standard for statutes of this nature. I am satisfied that the powers are reasonable in the circumstances and that safeguards are provided. There was some discussion about whether powers of entry should apply to private houses. My hon. Friend has wisely taken the view that powers of entry should not apply to private houses. If he had not done so, we might find the hon. Member for Brent, East (Mr. Livingstone) talking at great length about the civil liberties implications of entry into private houses.
I now put the Bill into its proper context. I referred briefly to the recommendation of the Director General of Fair Trading that an order should be made under the Estate Agents Act 1979, declaring that property misdescriptions should be an undesirable practice under that Act. The director general's report also recommended that certain other matters should be covered by such an order, such as forced sales of ancillary services, effective disclosure to the client of an estate agent's personal interests, as well as misdescription of property.
My Department has consulted widely on these matters. I inform the hon. Member for Edinburgh, South, who I suspect will accuse me of not acting fast enough, that we have consulted widely. There have been several differences of opinion. There has been a problem in applying the order to misdescriptions of property. Therefore, I shall proceed as quickly as possible with making subordinate legislation, but I shall leave out those aspects covering misdescription of property, because we hope that, when the Bill becomes an Act, those aspects will be covered.
I hope that I have answered all the points that have been made by right hon. and hon. Members. I welcome the Bill. It is a modest but important measure. It is widely welcomed by the House, the press and consumer groups. I wish it a fair wind and a steady passage to becoming an Act.
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1.1 pmMr. Nigel Griffiths (Edinburgh, South) : I congratulate the hon. Member for Coventry, South-West (Mr. Butcher) on his good fortune in securing a high place in the ballot and on his good judgment in promoting the Bill, which was prepared by the Consumers Association. I repeat the good wishes that I expressed to the House on 23 January for a speedy recovery from his recent illness.
We have heard informative speeches from the hon. Members for Wyre Forest (Mr. Coombs), for Nuneaton (Mr. Stevens), for Gloucester (Mr. French), my hon. Friend the Member for Great Grimsby (Mr. Mitchell), the hon. Member for Faversham (Mr. Moate), my right hon. Friend the Member for Swansea, West (Mr. Williams) and the hon. Member for Walthamstow (Mr. Summerson).
The measures are long overdue--in fact, 12 years overdue. It is a sad reflection on the Government's concern for home owners that Ministers have not implemented the excellent provisions of the Estate Agents Act 1979 of the previous Labour Government or introduced regulations or legislation of their own. During the housing boom years, when millions of home buyers felt vulnerable to
misrepresentation and sharp practice by a minority of unprofessional estate agents, the Government did nothing to implement section 3 of the 1979 Act, which lists undesirable practices, or to enact section 18, which provides for full disclosure of contract terms, or section 22 to eliminate incompetence, in spite of representations from estate agents to implement the legislation and drive out some of the rogue agents.
For Ministers the free market mechanism can do no wrong. Their failure to enact the consumer protection measures in the Estate Agents Act gave the green light to unscrupulous agents who measured inches and added feet and even rooms to properties that they were responsible for selling.
It is not that Ministers were ignorant of those matters. In a speech to estate agents in 1988, the then Minister, the right hon. Member for Braintree (Mr. Newton), referred to complaints about estate agents becoming a flood. It seemed that he could delay no longer the overdue implementation of all sections of the 1979 Act. The Minister suggested earlier that he might be open to the criticism of being dilatory. He made me feel rather like a priest listening to a guilt-ridden confession. His word was "dilatory", but mine is "negligent". He has neglected tens of thousands of home owners. He and his predecessors could have implemented all the sections of the 1979 Act. But, no, in 1988, a year before he chose to start his historical tour, the Minister and his predecessor had a different tactic. It was the ministerial press release outlining the Government's position on malpractice in estate agencies. The first press release in November 1988 was cautious. It was headed : "Code of practice for estate agents may be needed, says Minister." He must have been the only person in the country at the time who had any doubts about the matter. A code of practice was the minimum that was needed, and even then it was hopelessly inadequate to tackle the malpractice.
Speaking at a conference on estate agency regulation and financial services on 14 November 1988, the then Minister, the right hon. Member for Braintree, revealed that his Department had conducted "an examination of estate agency matters"
and had held
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"an extensive programme of meetings which are not yet complete." But in December the Minister said that what was clearly needed was a code of practice.By June 1989, the then Minister responsible for consumer affairs, the hon. Member for Mid-Worcestershire (Mr. Forth), had no code of practice, but he announced what he modestly called "tough new measures". He had asked the Director General of Fair Trading to draw up a code of practice with the industry. Government measures do not come tougher than that! In the seven months since the right hon. Member for Braintree announced the need for a code of practice up to June 1989, Ministers appeared to have forgotten to get anyone to act. The hon. Member for Mid-Worcestershire boasted in June 1989 about the consultations that he had been conducting since July 1988. Yet another year passed and on 19 June 1990 the Government's plans were unveiled. The Minister called for comments on draft legislation. More talk, no action. But action was promised this time. In his press release of 19 June 1990, the Minister stated that
"draft orders and regulations under the Estate Agents Act will be laid before Parliament in the Autumn."
Why were they not laid before Parliament, and where are they? In July the Minister gave us his undertaking that at last, after years of inaction when the public were left prey to the most unscrupulous practices, legislation would be laid before Parliament last autumn and that the new legislation and orders would come into force by 1 January 1991.
Like so many other statements trumpeted in the press by the Government, the Minister's statement was full of sound and fury, yet signified nothing. There were no orders, no legislation--nothing. It is no wonder that when I asked the Minister on behalf of millions of house buyers on 23 January why the Government had not honoured their pledge to have legislation in force by the first day of 1991, he did not have a clue. The Minister responsible for consumer affairs did not know the difference between the Estate Agents Act 1979 and the Trade Descriptions Act 1968 in respect of this matter. His answer showed that he did not really care.
"The Government's policy is clear ; to keep talking but do very little very slowly."
Those are not my words but those of Mr. John Hayes, the secretary general of the Law Society. It is clear that Conservative Ministers have learnt a great deal from certain sections of the more dubious estate agents. Ministers have picked up skills closely mirroring those of some agents-- extravagant promises followed by a disappointing result.
It is not that the Government do not have time, as the Minister claimed earlier : they do not have the will. We have the lightest legislative programme for a long time, yet even this Government cannot find the time to introduce the necessary orders or regulations to enact this vital measure of consumer protection. Instead it is left to a private Member's luck in a ballot to ensure that vital protection for home buyers is introduced. It will surprise no one if the Bill meets with a nasty accident on its way through Committee to the statute book.
We support the Bill in spite of its limited and modest objectives. The Royal Institution of Chartered Surveyors is keen to see its scope extended to business premises and, with the support of the Bill's promoter, we shall seek to move amendments in Committee to that effect. We also
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wish to examine the role of solicitors to ensure that they adhere to the standards that the Bill laudably seeks to lay down for estate agents. The Institute of Trading Standards Administration has made it clear that it supports the Bill. The chairman of its quality standards committee, Mr. John Evans, said :"We believe that the Bill is long overdue."
The Incorporated Society of Valuers and Auctioneers fully supports the Bill's objectives.
Some people have argued that the slump in the housing market has had a chastening effect on the activities of rogue estate agents. However, one part of the market has picked up during the recession and is booming--the part that specialises in repossessions. Two weeks ago the Council of Mortgage Lenders announced a tripling of the number of people who lost their homes last year because they could not keep up their mortgage payments. That is an embarrassment for the Government, but for each evicted family it is a tragedy.
A London estate agent, Norman Mazure, who works with the chain of estate agents Stickley and Kent, expects to handle more than 3,500 repossessed properties this year. There is no guarantee that the sale achieved by the estate agent will cover the outstanding debt, so, as well as losing their homes, former home owners are left with a large debt.
I hope that the Minister will consider alleviating the burden on such victims of the Government's high interest rates in the present recession. The measures outlined in the Bill are doubly necessary in such times. We welcome the work carried out by banks and building societies for defaulting clients to reschedule debts, but they must do more to help those who cannot cope with mortgage debt. The Government must do more to support the citizens advice bureaux and other organisations that provide advice on mortgage and other debts. The Bill is about consumer interests. It has become the ministerial responsibility of the hon. Member for Gainsborough and Horncastle (Mr. Leigh). We are entitled to know how safe it is in his hands. When he made his first contribution in the House on the Consumer Guarantees Bill, he spoke not for his contituents, but for business. On Third Reading, he really got into his stride. He wanted to speak not about the Consumer Guarantees Bill but--as he told the House--about a constitutional point. He is too modest. He wanted to cover the Road Traffic Bill--not the one being discussed this week, but the one presented in February 1930. He wanted to ensure that his filibuster was not confined to road matters. He wanted to tell the House about the Mineral Workings Act 1951. In a contribution to the debate on the Consumer Guarantees Bill, which covered five columns in Hansard --from column 797 to column 801--he did not manage once to utter the word "consumer", which is so hateful to him, save for having to mention once the Consumer Guarantees Bill. We can now see his reward.
We have a Minister with responsibility for consumer affairs who forced two needless votes on the Third Reading of the Consumer Guarantees Bill but could not find one Tory willing to follow him into the No Lobby. He turned to "Erskine May" and waxed long on the contents of page 507, revealing his clear desire to frustrate a Bill dealing with the extension of consumer interests, rather than his ability to get to grips with the complexity of the law. He sat down only after having consumed valuable time.
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The House is entitled to know whether the Minister with responsibility for consumer affairs is continuing his antics in his ministerial office by frustrating measures such as this which, we were assured, would be on the statute book by the first day of this year. As a general election could well bring the progress of this Bill to a standstill or dispose of it altogether, it seems likely that the Government's real wish--to continue to allow estate agents to regulate themselves--will be granted to the detriment of home owners. However, we have a different agenda. As my right hon. Friend the Member for Swansea, West (Mr. Williams) said, we wish to ensure that the broad principles and rules are applied to solicitors as well as to builders.The Bill, although welcome, will not tackle some of the key abuses--for example, the use of untrained and unqualified people who set up and run estate agencies, the non-disclosure of personal interests or commissions, or the fact that estate agents can also act as tied agents of an insurance company. To be effective, the Bill must be supplemented by the proper enactment of certain sections of the Estate Agents Act. Sections 16 and 17 of it provide for insurance cover for clients' money for bonding and indemnity and section 19 regulates pre-contract deposits. I have already dealt with the provisions of sections 3, 18 and 22.
We aim to eliminate malpractice and unfair contract terms where sole selling rights entitle the estate agent to commission even if the owner sells privately. We aim to eliminate misleading advertising where "in need of some redecoration" means rebuilding required. We aim to eliminate serious complaints relating to size and specification and material facts such as planning permission. We want to eliminate manipulated prices and invented bids when vendors are persuaded to accept the lower of two bids. We also want to control the type of financial advice that is offered and to end the practice whereby people take out life assurance that is excessive to their requirements. We also want to prevent estate agents from negotiating home and building insurance that is not to the best advantage of the new home owner.
Labour has simple demands--the full implementation of section 3 of the Estate Agents Act, which lists undesirable practices ; of section 18, which provides for the full disclosure of contract terms ; and of section 22, which would eliminate incompetent agents. We want a statutory, not voluntary, code of practice that is binding on all agents, not just those who are members of professional associations. The Minister has missed a golden opportunity to present to the House the real agenda on estate agency --the one that the Government have been delaying since 1988 and the one that they promised the House would be in place by 1 January this year. It must now wait for the next Labour Government.
1.16 pm
Mr. Anthony Coombs : We have had an interesting, stimulating and, in the latter stages, combative debate on this important matter. When I speak to my hon. Friend the Member for Coventry, South-West (Mr. Butcher) at the
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weekend I shall be able to tell him that we had widespread, if not unanimous, support for the principles behind his Bill. I am sure that he will be delighted.The right hon. Member for Swansea, West (Mr. Williams) put it best when he said that this Bill would put right a 23-year anomaly whereby consumers are protected when they buy a tin opener, but not when they make the biggest, most important and possibly the most stressful purchase of their lives.
I admit that I am not the natural parent of the Bill, but I am a proud foster parent. As with most foster parents, the Bill is not entirely cast in my image, because I was denied the pleasure of conception. There are parts of the Bill that need to be strengthened and it would be appropriate if I said how I hope that the Bill will be strengthened in the light of this debate.
In common with other hon. Members, I believe that this is a limited, not draconian, measure. It will bolster the standing of responsible estate agents. It is not part of a continuing progression of regulations that will lead to inhibiting competition within the estate agency industry. My hon. Friend the Member for Faversham (Mr. Moate) and the Minister said that they did not want to regulate the industry out of existence and I am sure that they will be heartened by what I have said.
My hon. Friends the Members for Nuneaton (Mr. Stevens) and for Gloucester (Mr. French), the right hon. Member for Swansea, West and the hon. Member for Great Grimsby (Mr. Mitchell), in particular, said that there did not appear to be any logic behind the omission of builders from the Bill. A builder who has a 100 per cent. interest in a property and who is selling it on a commercial basis is not liable, in a criminal sense, for any statements that he may make about that property, but an agent who may have 1.5 per cent. interest in the property only is liable for his statements. That anomaly should be addressed in Committee by amendments that would include builders as marketers of property. My hon. Friend the Member for Faversham rightly pointed out that builders could make definitive and accurate statements about the structure, the condition of the land, easements and so on to a greater extent than agents, so they should have less to fear from being included in the Bill.
I was pleased to hear the hon. Member for Edinburgh, South (Mr. Griffiths) say that the Opposition would support amendments to bring commercial property within the scope of the Bill. Clearly that is logical. My hon. Friend the Member for Gloucester gave the best example when he said that in a small town one agent might deal with both commercial and residential property and that the Bill would cover one set of particulars but not the other. That is patently nonsense. I was pleased to hear that the Minister thought that there were strong arguments and that he had considerable sympathy for including commercial property.
I must set my stall out, like the fruiterer whom my hon. Friend the Member for Walthamstow (Mr. Summerson) mentioned, and say that there is no justification for making a distinction between small and large businesses. One would have to decide whether it was the buyer or seller who was small or large or the properties and exactly how that would be measured. As my hon. Friend the Member for Gloucester said, if commercial property is to be included, it must be in toto. We must not fiddle around with an unworkable definition.
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The hon. Member for Great Grimsby made a strong case for including solicitors and my hon. Friend the Member for Gloucester pointed out that about 300 solicitors act as estate agents. From my discussions with the Law Society I am sure that it will be constructive about this. It realises that it has a duty to the public to ensure that a customer who comes in off the street should not have to identify whether the property shop is being run by a solicitor or A. N. Other, and thereby be disadvantaged. I am sure that the Law Society and, I hope, its Scottish colleagues will be sympathetic and constructive. My hon. Friend the Member for Walthamstow made several points about the Royal Institution of Chartered Surveyors. I have already written to it specifically in response to the matters that it raised. He asked whether the investigating officers' powers in the schedule were confined to the premises of estate agents. I can confirm that that is the intention. He asked why we stuck to the term "goods", as in the Trade Descriptions Act, rather than "documents", which may seem more appropriate for estate agents' particulars. I am told that it is because several estate agents give significant descriptions for items of property in their shops which are not documents and must be physically moved. Therefore, it is better to refer to "goods" so that they can be used as evidence of property misdescriptions if necessary.My hon. Friend said that he feared that agents might carry a large burden as they were not surveyors or architects, but might be held responsible for statements for which they should not be responsible, for example, on structural quality.
The Bill does not say that agents are obliged to mention everything. They would not have a duty to reveal wide subsidence cracks--a matter which my hon. Friend the Member for Walthamstow raised--though I hope, in terms of their professional instincts, that they would do so. However, if they did not, then, subject to some other remarks that I shall make, they would not be held criminally liable. They would fall foul of false or misleading statements only if they concerned a prescribed matter, if the statements were made without a disclaimer or if no reasonable steps could be seen to have been taken by the agent to verify the information.
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As for Mrs. Smith's woodworm guarantee, reasonable steps would, in my view--from the point of view of any professional person, an estate agent or anybody else--include telling Mrs. Smith, "You say that you have a woodworm guarantee. May I at least see the certificate?" If she could not show the certificate, I should have thought that most responsible people would agree that the estate agent had no business referring to the guarantee in the particulars.It is crucial to understand that an agent can be held criminally liable for omissions only if they are triggered by a statement on a prescribed matter. So, as the Minister said, if an agent talked about the healthy environment of a house but did not mention bubonic plague, he would probably be guilty of a misleading omission and, under the Bill, have committed a criminal act. Equally, if he said, "This house is in excellent structural condition" but did not mention the woodworm, he could be guilty because he would have been responsible for a misleading or false statement. But if he did not mention those matters, the omission clause would not be triggered because no statement on a prescribed matter would have been made.
It will be my intention--by inference, as hon. Members will appreciate--to move that the scope of the Bill be widened so that it can take in banks, building societies, builders, solicitors and others who are engaged in the marketing of property but who are not estate agents as defined in the Estate Agents Act. That should meet the level playing field point to which the Minister referred and be in the interests of all concerned with the subject.
This is a limited Bill. It will be good for consumers. Most of all--I have particularly in mind the excellent speech of my hon. Friend the Member for Gloucester--by insisting that estate agents are more accurate and, therefore, comply with the codes of practice, for instance, of the Royal Institution of Chartered Surveyors in terms of the way in which they describe property, the measure will improve the reputation of the profession and the esteem in which it is held in the eyes of the public.
Question put and agreed to.
Bill accordingly read a Second time, and committed to a Standing Committee, pursuant to Standing Order No. 61 (Committal of Bills).
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Criminal Procedure (Insanity and Unfitness to Plead) Bill Order for Second Reading read.
1.27 pm
Mr. John Greenway (Ryedale) : I beg to move, That the Bill be now read a Second time.
I am pleased to introduce a Bill which will provide much-needed safeguards for mentally vulnerable and disabled people who become caught up in the criminal justice system--that is, people who are found to be unfit to plead in relation to a criminal charge against them or who are found not guilty by reason of insanity.
Those safeguards build on the protection that the existing law was intended to provide, but which has been denied to those vulnerable people because of the inadequacies of the present law. Severe consequences result from that. To avoid those consequences, my Bill provides the court with a range of disposable powers so that it can choose an order appropriate to the circumstances of the case before it and meet the individual needs of care, security, supervision and treatment of the defendant.
The need to amend the law has been recognised for over 15 years, since the Butler committee on mentally abnormal offenders presented proposals for change in the mid-1970s. The Butler committee's key proposals are contained in the Bill.
The Bill has widespread support, not only from the Law Society, which has promoted it and to which I am extremely grateful, but from all the relevant professional associations and voluntary organisations concerned with the care and treatment of mentally disordered people, as well as those involved in the operation of the criminal justice system. I am delighted, too, that the Bill has all-party support, as reflected by my hon. Friends who most enthusiastically agreed to sponsor it. The Bill also has the Government's support and I am grateful to my right hon. Friend the Minister of State, Home Office for his help and support in preparing the Bill and defining the issues that it should contain, especially with regard to disposal arrangements.
I am also grateful to my right hon. Friend the Home Secretary for showing the Government's support in a recent answer to a parliamentary question, in which he said :
"The Government have reviewed the 1964 Act in the light of recommendations made by the Butler committee on mentally abnormal offenders which reported in 1975. The Government recognise that it is desirable to amend the Act by providing for an examination by a court of the case against an accused person found unfit to plead."--[ Official Report, 28 January 1991 ; Vol. 184, c. 372. ]
Why, then, is the Bill needed? It seeks to amend the 1964 Act to which my right hon. Friend the Home Secretary referred--the Criminal Procedure (Insanity) Act 1964.
The Bill will affect two groups of people : those who are found to be unfit to plead in relation to a criminal charge against them and those who are found not guilty by reason of insanity. Under the Criminal Procedure (Insanity) Act, once a person accused of committing a criminal act has been found to be unfit to plead because of mental disorder, the court has no alternative but to order that person to be detained in a hospital, specified by the Secretary of State, without trial or any determination by the court of whether
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the person committed the act of which he or she is accused. Furthermore, the person is held regardless of the severity of the alleged offence. I stress the point about the severity of the alleged offence because, in many instances, it is extremely minor and trivial.A fundamental principle of English law is that a person charged with a criminal offence is innocent until proved guilty, yet that principle does not apply to people who are so mentally disordered as to be unfit to plead in relation to the charge against them. One of the many cases described to me in preparation for this debate was the celebrated case of Valerie Hodgson, of which many of my right hon. and hon. Friends will be aware. She was in her mid-30s and mentally handicapped. She had lived with her family all her life and was cared for by her father. In the early hours of one morning, she was awoken by a noise. On going downstairs, she found the body of her father, who had been stabbed fatally in the chest.
Like many mentally handicapped people, Valerie was highly suggestible and anxious to please. During interviews at the police station she confessed to having murdered her father. Her uncorroborated confession was the only evidence against her and when the case came to court Valerie was found to be unfit to plead because she could not understand the nature of the court proceedings or instruct her legal advisers to prepare a proper defence, so the trial was abandoned. Under the Criminal Procedure (Insanity) Act 1964, Valerie was committed, first to prison and then to a secure hospital, with no limit on the period she was to spend there.
There was no opportunity for the court to examine the forensic scientific evidence that would have shown that Valerie did not commit the murder and meanwhile her father's murderer went free. After she had spent 14 months in hospital, new evidence emerged leading to the conviction of the murderer so Valerie was allowed to return home to her family.
Mr. James Arbuthnot (Wanstead and Woodfood) : Is not one of the curious factors of that case--and the whole of the law--that Valerie was committed to prison not for committing an act, but for being unfit to plead? When it was found that she had not done the act, she was released, in spite of the fact that she was still unfit to plead.
Mr. Greenway : My hon. Friend has succinctly outlined an anachronism of the present law. I think that he will agree that Valerie was extremely fortunate ; many others have been less fortunate and, even today, there are people in our mental institutions who have been there for a long time--25 years and 40 years in two specific cases.
The Minister of State, Home Office (Mr. John Patten) : I am grateful to my hon. Friend for allowing me to intervene so early in his speech. Does he agree that, although it may be coldish comfort for Valerie, she was paid compensation on the direction of my right hon. Friend the Home Secretary, which was at least some recompense for what she, alas, went through.
Mr. Greenway : I am grateful to my right hon. Friend, who has provided some balance to what I am saying, but surely he would agree that the 1964 Act works against those people whom it was originally meant to protect. That is why we should take this opportunity to change the law.
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Equally severe consequences apply to people who have been found not guilty by reason of insanity. Under the Criminal Procedure (Insanity) Act, they must be detained in hospital, with restrictions on their discharge and without time limit. A plea of not guilty by reason of insanity, known as the insanity defence, was intended as a protection to excuse defendants from punishments associated with a crime for which they were not fully responsible because they suffered a lack of reason caused by what the law calls a "disease of the mind." However, medical conditions such as epilepsy have been defined by 19th century case law to be diseases of the mind. Therefore, people who commit a crime during or in the aftermath of an epileptic fit cannot use their epilepsy as a defence without being labelled insane. Having found them not guilty by reason of insanity, the court has no alternative but to impose an order committing them to hospital, with restrictions on their discharge and without a time limit.I am grateful to the British Epilepsy Association for providing me with details of cases where people who have committed minor offences during or in the aftermath of a fit have been advised to plead guilty, rather than risk being found not guilty by reason of insanity and so face a mandatory hospital order. For instance, one unfortunate lady has had a complex partial epilepsy problem for 35 years. She is now 72 years old, but when she was 60 she was accused of shoplifting. She remembers nothing of the incident except being approached by sales staff who refused to believe her explanation even after she had shown them her medical identity bracelet. The police did not believe that she was epileptic, as she had not been writhing on the floor. She was so frightened by the experience that she pleaded guilty and was fined £60.
A current case still awaiting trial concerns a man charged with assault of a newsagent. His epilepsy was undiagnosed at the time of the incident even though he had sought medical advice about having "funny turns". It has since been established that he has stress-related epilepsy. The man is now faced with a difficult decision which illustrates clearly the problem that the Bill is designed to solve. He has to choose whether to plead not guilty on the grounds of sane automatism, in the hope that the court will use its discretion and not impose a hospital order, or to avoid the risk of detention in hospital by pleading guilty.
The House will agree that such cases highlight the need for reform. The Criminal Procedure (Insanity) Act 1964 was intended to protect an unfit person from the ordeal of a trial if his or her mental state might cause the trial to be unfair. Equally, the insanity defence was intended as a protection for people who were not fully responsible for their actions. However, the vulnerable people who should be protected by the law are avoiding using it because of its draconian consequences. My Bill will make the law more practicable and usable and will provide much-needed safeguards and protection for people with disabilities.
How will the Bill help? First, it will stop miscarriages of justice against people who are unfit to plead. It will help in the implementation of the policy--agreed by all parties--of diverting mentally disordered people from the criminal justice system. That, indeed, is the thrust of what my right hon. Friend the Minister wants to achieve. The Bill will provide safeguards and ensure better care and treatment for mentally vulnerable people.
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Mr. John Patten : Does my hon. Friend recognise that his proposal fits in well with the proposals in the Criminal Justice Bill, which was given its Third Reading earlier this week, to ensure that when courts believe that there is a need to look at psychiatric reports, they should do so? Does he agree that in the Standing Committee debates on the Criminal Justice Bill, in which he played a distinguished part, and in the debate on this Bill, we have done an enormous amount to try to rectify some of the problems facing mentally ill people in the criminal justice system?
Mr. Greenway : I entirely agree, and I am grateful for my right hon. Friend's kind remarks about the small part that I played in the Bill's proceedings. This Bill fits in well with the Government's policies as set out in the Criminal Justice Bill, which I hope will shortly be considered in another place. The proposals in my Bill for treating people with disabilities in the community also fit in well with the proposals of my right hon. Friend the Secretary of State for Health on community care. Government policy on community care for people with mental handicaps, which is now at an advanced stage, will mean that more vulnerable people will be living in the community. There is much potential for some such people to get into danger of the kind that I have outlined.
A mentally handicapped person living in a normal suburban household with two or three other people should be integrated and should have some money in his pocket to visit the shops, like anyone else. Such people could encounter danger and difficulty, especially in urban areas where they may not be known. The possibility is less likely in rural areas, such as that which I represent, but they could suddenly find themselves in a police station facing a charge. For that reason alone it is right to change the law. In every respect, the Bill is entirely in line with the Government's broad front policy. I have spoken about how the Bill seeks to care for people returned to the community. That is one of its key factors. It introduces two main changes to the existing law. First, it will require a court to carry out a trial of the facts to determine whether the accused carried out the act with which he is charged. The court will examine evidence presented by the prosecution and the defence to satisfy the jury that the person committed the act or made the omission charged. That is an entirely new concept in English law and I am privileged to attempt to make such a change.
The court will look only at the facts of the case, including any forensic or scientific evidence and witness evidence, but it will not look at the intentions of the accused. That is the key point. It will not look at the mens rea--what was in the accused's mind--which is a crucial part of our criminal law. It would be meaningless to try to form an impression of the motives of someone who, because of his mental condition, is unfit to plead.
The Bill also allows a court to appoint a person to safeguard the interests of the accused, for example, by ensuring that legal representatives are instructed to act for the defendant in the trial of the facts. I shall come to that in due course.
Secondly, if the court is satisfied that the accused committed the act or made the omission charged, it will bring in a finding to that effect. As I have said, this is a new legal concept and it is vital to get clear in our minds that such a finding is not the same as being convicted of a
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criminal offence. It merely establishes that the unfit person has committed an act that would have resulted in a criminal conviction if the accused had had a sound mind. If no such finding is made, the person is acquitted.The first example shows clearly how much better the law would be by virtue of this provision. Sadly, at present we have to detain in hospital people about whom we have no clear view as to whether they committed the act with which they were charged. We are now providing for that. When I come to the issue of disposals I shall cite cases where people will be detained in psychiatric hospitals.
The advantage to society is that for the first time society will know that at least a jury has considered all the circumstances and all the evidence against the accused, and we shall all be able to sleep easy in our beds with clear consciences, knowing that the jury's findings mean that the psychiatric hospital patient did that of which he was accused.
Mr. Arbuthnot : There are two issues here. The first is whether the person concerned committed the act of which he is accused. The second, which causes me some worry, is whether that person should, in his own or society's interests, be detained in a mental hospital in any event. It seems from what my hon. Friend is saying that the second question will not arise, even if perhaps it ought to, if the person did not commit the act.
Mr. Greenway : My hon. Friend has put his finger on it. When people get into difficulties with the law, that can indeed serve as a means of bringing them to the attention of the authorities. Surely, however, the question whether they should be detained indefinitely in a psychiatric hospital is covered by the Mental Health Act 1983, which contains provisions enabling people to be detained regardless of whether they have been accused of a criminal offence. Society must decide ; I do not think that it is up to the Bill to make sweeping changes in the way in which society deals with the mentally ill or mentally handicapped.
As my hon. Friend knows, schizophrenics are sleeping rough in London and other places. A recent edition of the Esther Rantzen programme "That's Life" highlighted the case of a homeless schizophrenic. I took the matter up with my hon. Friend the Member for Loughborough (Mr. Dorrell), the Under -Secretary of State for Health, who assured me that he had investigated the case. I understand that the person concerned was not considered to be of sufficiently unsound mind to be detained in a psychiatric hospital, and had refused treatment. The House should, of course, be concerned about such matters, but I do not think that they should be included in the Bill.
My hon. Friend's intervention touched on a point that I was about to make about the provisions in the Bill to increase the number of disposal options available to the courts. I accept that that will arise only if it is found that the person concerned committed the act of which he is accused ; nevertheless, it is an important issue. The provisions will give the courts more flexibility and choice. If someone has been found unfit to plead, and it has been found that that person committed what would normally be considered a criminal act--and also in the case of those found not guilty by reason of insanity--the court will be
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able to choose between a range of orders, taking into account all the circumstances of the case, the severity of the offence and the individual needs of the defendant.As the existing law provides, the court will be able to make an order that the person be detained in a hospital specified by the Secretary of State. That hospital order will not necessarily be accompanied by an order that imposes restrictions on the person's discharge from hospital unless he or she has been found to have committed murder. In those cases, the court must make a restriction order. In all other cases, it need impose a restriction order only where it is considered necessary to protect the public from serious harm.
Those provisions ensure that there is no risk that an unfit person who is a danger to the public will be allowed to go free in the community. I wish to stress that with all the force that is available to me. It is vital that it is understood that anyone who is likely to be a danger to society will be detained, as now. I am sure that it is passing through the mind of my right hon. Friend the Minister of State that that very much encapsulates the flavour of our discussions on sentencing when considering the Criminal Justice Bill. In addition to the orders requiring detention in hospital, the courts will have other orders available to them, including a supervision and treatment order which will be similar to what is known as a psychiatric probation order, which is provided for under the Powers of the Criminal Courts Act 1973. That is being incorporated into the Criminal Justice Bill, which the House discussed only this week. Such an order provides for supervision by a social worker or probation officer and includes the additional requirement of medical treatment. The person subject to the order might be treated as a patient in hospital or might receive treatment in the community. Such an order would have been ideal for a young man called Glenn Pearson, whom I know many hon. Members have heard about. He is a young man who is profoundly deaf. He is unable to communicate and he has some learning difficulties. He was found unfit to plead to a charge of theft of three light bulbs and a £5 note. He was detained for several months in a psychiatric hospital. That is what I meant when I referred to the consideration of the severity of the offence. Also available will be a guardianship order under the Mental Health (Amendment) Act 1983, which allows a guardian to be appointed to provide some supervision and assistance to the person under guardianship. Finally, the Bill will provide for the court to grant an absolute discharge in cases where no other order is necessary. That will be based on the circumstances of the individual case. I have already said that the Bill has widespread support. I pay tribute to the Law Society, and especially to Miss Penny Letts, who has been extremely helpful to me in the preparation of the Bill. I pay tribute also to the Royal College of Psychiatrists, which has provided considerable support. I understand that at a conference the forensic section of the royal college organised an impromptu petition in support of the Bill. The conference took place last weekend and the organising of the petition produced more than 40 signatures of eminent consultant forensic psychiatrists. All the major voluntary organisations involved in the care and treatment of those with mental disorders and disabled people support the Bill. These organisations include MIND, Mencap, the British Deaf Association, the British Epilepsy Association, the
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National Schizophrenia Fellowship and the British Institute of Mental Handicap. I shall not mention all the organisations that support it because they are too numerous.I am especially grateful for the help and support of the Mental Health Foundation's committee on the mentally disordered offender, whose membership includes many eminent professionals who are involved in law, psychiatry and criminal justice.
It is encouraging also that the support of so many organisations involved in the criminal justice system has been forthcoming. These include NACRO, Liberty, Justice and the Legal Action Group, as well as the two probation officer associations. They all support and welcome the Bill's provisions. Indeed, it has been difficult to find anyone who is opposed to the Bill. I can only thank those who have supported me, including the sponsors.
Clause 2 of the Bill seeks to ensure that the jury that decides whether the accused is fit to plead is separate from that by which the accused is tried. I mentioned earlier the arrangements for a person to be appointed by the court to put the case for the defence. That will enable court rules to provide for a guardian ad litem to be appointed, to safeguard the accused's interests and to ensure that he or she has legal representation at the trial of the facts. That would be similar to the appointment of a next friend in the case of defendants in civil proceedings who suffer from a disability. I am sure that the House will welcome that important safeguard. The Criminal Procedure (Insanity) Act 1964 was intended to provide safeguards and protection for vulnerable individuals, but it fails to achieve that objective. The vulnerable people whom it should protect avoid using the law because of the draconian consequences. The Bill will make the law usable and provide much-needed safeguards, protection and proper provisions for those who suffer from a disability and who are among the most vulnerable individuals in our society. I commend the Bill to the House.
2.1 pm
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