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Mrs. Browning: My hon. Friend will know that in Standing Committee I tabled new clauses to try and close the Bournewood gap. I understand that the Minister needs to consult, and I know that the lawyers are taking their time and are supplying differing legal advice. I do not criticise the Government for that, but it is clear that they have three options. If they opt for closing the Bournewood gap by means of this Bill, the relevant provision will have to be introduced in another place. I am concerned that this Chamber has not had a chance to discuss the matter in full, as I would have liked.
Mr. Boswell: My hon. Friend raises the issue of what will come back from the other place. Given the state of the Bill at the moment, I hope that Ministers and Whips will take very seriously the need to involve this House as well.
The wider issues of reservation on human rights grounds also referred to by the Joint Committee include restraint, not just in the context of Bournewood; advance decisions; the conditions for research, which we have just been discussing; the need to see clear and unequivocal evidence in writing of the Government's commitment to deal with issues around motives for
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ending life, which has been expressed almost universally in this House; and other conditions of care, including nutrition and hydration. Those are central issues.
This afternoon's proceedings did little good to the reputation of the Department or the Minister, I am sorry to say. I hope that he and others have learned their lesson about the credibility of the Bill. It is right, proper and essential to consult all relevant bodies, but the prior consultees should always be the Members of this House and their interests in the matter.
Mr. John Gummer (Suffolk, Coastal) (Con): Does my hon. Friend agree that it is very difficult for us to reassure our constituents that their concerns are being properly heard in this House when the events of today show that the work has not been done, the papers have not been presented and we have not been involved, because of the incompetence of Ministers rather than an intention on their part to do wrong? We must be involved more effectively or our constituents feel disfranchised.
Mr. Boswell: I have every sympathy with the remarks of my right hon. Friend on that point. I can understand why, in the circumstances, the Minister might want to get shot of the Bill and to pass it to his colleagues in the other place. I am sure that their lordships will do a good job of scrutiny on the Bill, but they are not the same as us and we still have an unfinished interest in it.
The Minister was generous enough to mention that, as a result of pressure from Opposition Members in Committee, he has already carried out effective and useful improvements, especially in relation to the objectivity of the best interest test. I also acknowledge the introduction of the affirmative resolution procedure for any extension of the independent consultee service, which concerned many members of the Committee. However, every time one issue is resolved another aspect for concern arises. Ministers should not think that the list that I have given is a comprehensive one.
The conclusion is that some progress has been made in considerations in this House, but the Bill is unfinished business and further safeguards are required. For that reason, although I support firmly the principle of the Bill, I cannot give it my support in the Lobby tonight.
Mr. Burstow: I share some of the concerns that the hon. Member for Daventry (Mr. Boswell) expressed, but I have not come to the same conclusion as to how I should cast my vote. If there is still room to improve the Bill through further scrutiny, albeit in the other place, we should allow it a Third Reading as long as the principles behind the Bill are sound and the purpose of the Bill is goodwhich the hon. Gentleman confirmed.
I share the hon. Gentleman's concern about feeling like a bystander today on at least one aspect of the consideration of the Bill. The exchange of correspondence around the Chamber, which eventually became available to the Minister, was not the most desirable occurrence. It will have left many outsideand some insidethe House questioning the process that we have been through today. What the Minister said on Third Reading was helpful, but this House still has a clear interest in what will be considered in the other
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place and the amendments that will be tabled. I hope that the Minister will be able to give us some further indication of how Members of this House will be able to have some serious engagement with that ongoing process.
Mr. Howarth: I want to record the fact that the hon. Member for Daventry (Mr. Boswell) and my hon. Friend the Minister have been helpful throughout the Bill's proceedings. Although some of this afternoon's events were unfortunate, the finger should not point directly at my hon. Friend.
Mr. Lammy: I should like to point out to the hon. Member for Sutton and Cheam (Mr. Burstow) that, if truth be known, it is precisely because hon. Members on both sides of the House have been pressing the issuesscrutinising Bland, scrutinising purposethat we have achieved what we have today. The hon. Gentleman should note that.
As the Minister rightly said, the measure has been 15 years in the making, although some of today's comments were unfortunate, and the present law is confused and confusing. It allows people who lack capacity to be non-citizens because they lack rights and protections. It cannot be acceptable to leave the law as it currently is, which is why the Bill provides a necessary vehicle to give people far more control over their lives.
The presumption of capacity is absolutely right. The principles set out at the beginning of the Bill have the potential to transform people's lives. They provide a framework in which those who act as proxies can, for the first time, take decisions with proper safeguards not only on health matters but also on welfare and finance. At present, those things are not clear and they need to be. The Bill provides the way to make them clear.
We have strong support from Age Concern, the Alzheimer's Society, Mencap and many others who see the Bill as potentially transformative of the lives of people with learning disabilities, autism and Down's syndrome, but it is only a Bill with potential, as the Disability Rights Commission told us at Second Reading. There are still issues to be addressed and I hope that, in the other place, they will be.
There is the question of equal consideration for those who lack capacity and those who have capacity. There is the interface with the Disability Discrimination Act 1995 and the Disability Discrimination Bill. There is the need further to strengthen the provisions to ensure that a person who may lack capacity is given every possibility
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and opportunity to communicate their wishes, needs and feelings. Supporting further communication in that respect is extremely important.
We had some useful exchanges on the question of independent consultees. We need to ensure that we end up with a system that is advocacy-plus rather than advocacy-lite, so that we really widen the scope of the role of independent consultees; for example, the system should pick up people who are befriended. We could also address the question of whether "consultee" is the right name. The Minister may ask, "What is in a name?", but it is important to many organisations outside this place.
The hon. Member for Tiverton and Honiton (Mrs. Browning) tabled some important amendments in Committee. I pay tribute to her for her work championing the closing of the Bournewood gap, but the mechanism is still not clear. Will it be the draft Mental Health Bill that she is scrutinising, or this Bill? We need that clarity and I hope that it will be forthcoming when the Mental Capacity Bill goes to the Lords. At present, people lack the safeguards they need.
Advance decisions have been a key concern throughout the debate, and I welcome what the Minister said. If, at the very least, we are to codify advance decisions to refuseas the Bill would dothey must be in writing. It is wrong that the Bill does not address that point and it should certainly be picked up in the other place.
The Bill advances the rights of those who lack capacity and, if we manage to address these issues in the other place, it will improve people's quality of life whether they lack capacity from birth or as a result of illness or accident. The Bill has been 15 years in the making and there is still room for improvement, but it deserves a Third Reading to give it the chance of that improvement.
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