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Earlier this summer, there were stories in the press that the Government intended to extend dramatically the number of offences that could be dealt with by way of a fixed penalty notice rather than the person having his case disposed of in court. The story returned to the headlines on Friday 29 September. The Times carried a story that serious offences, such as obstructing or assaulting a police officer in the course of his or her duty, could be subject to an on-the-spot fine. That would be an unbelievable extension of on-the-spot fines.

But then the very next day the Times carried another story reporting that the Home Secretary had ruled out on-the-spot fines for violent assaults. What did he mean by that? A spokesman for the Home Office said that Ministers had not been consulted about the proposals. How extraordinary that proposals for changes to legislation can get that far and apparently not be on a Minister's radar, especially as the Prime Minister appeared to be trumpeting exactly those changes in his own speech at the party conference earlier that week. I know that we may not necessarily take everything that the Prime Minister says in his conference speech as gospel. For example, he asked the conference to celebrate with him the fact that the Labour Government had been the first to appoint a female as Leader of this House, thereby forgetting yet again, as he had forgotten in a press release a few years ago, the appointment of Lady Young. I give way to the noble Baroness.

Baroness Scotland of Asthal: My Lords, I think that the Prime Minister said—and I believe he was right—that this party was the first to appoint a black woman as Leader of this House. There is a tonal difference.

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Baroness Anelay of St Johns: My Lords, a tonal difference I will accept. It was not reported as that, and so perhaps the noble Baroness will tell me that the rest of the Times reports about fixed penalties are also incorrect. I should certainly welcome that because a lot of what the Prime Minister seemed to celebrate in that speech was in cloud cuckoo land. However, we all like to applaud our leader’s speeches at whichever party conference we enjoy ourselves during the Recess.

With regard to fixed penalty notices, what is going on in government circles if they have not had prior notice of the consultation about whole swathes of offences being delegated to others to implement as fixed penalty fines?

Before we let the clause remain in the Bill, we need to hear from the Minister what plans the Government have to extend the range of fixed penalty notices. What offences could come within their range in the future? If the Home Secretary is now ruling out violent offences, what will be on the list? Will it include possession of cannabis, illegal hunting or all types of theft up to a value of £100? What will we see and when will Parliament see those plans? Is it to be in primary or secondary legislation? The Times report implied that it would be introduced swiftly this autumn in secondary legislation with implementation early next year. Is that SI winging its way towards us as we speak? We need to know that before we can proceed to extend the powers before us today in Clause 15. Who would be given the delegated powers to issue the fines for any extended range of offences? The noble Lord, Lord Dholakia, posed some questions on that.

I was not overly worried about Clause 15 when this matter came up in Committee and therefore I kept silent. But developments since then have made me concerned. The combination of the potential impact of this clause, the conditional cautions and extension to punitive methods in Clause 16, plus the rumours of wholesale extensions of the use of on-the-spot fines now make me concerned about allowing Clause 15 to slide into the Bill without more rigorous attention.

I am grateful to the noble Lord, Lord Dholakia, for bringing this matter forward and I certainly look forward to the Minister’s response. We have come to the crucial part of the Bill. I realise that we will be concluding our deliberations on the Bill after this amendment, which I think is the appropriate place to do so. We shall need to listen very carefully to the noble Baroness and consider these matters before we reach Third Reading.

Baroness Scotland of Asthal: My Lords, I understand the anxieties and I hope that I shall be able to lay them to rest. I should say in passing that often things are considered by others—for example, police chiefs—and suggestions are made which the press may or may not get into the public domain and which may or may not have come before others. It is very important for us to look at what is before us.

Everyone believes—that is why the noble Baroness was not worried about it—that the penalty notice for disorder scheme is currently being used to excellent

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effect by the police and the wider police family, such as community support officers and persons accredited under the community safety accreditation schemes. The use of fixed penalty notices to tackle nuisance and anti-social offending in local communities has proved very successful. If, like me, the noble Baroness has spoken to a number of area officers, she will know that they see this as one of the most effective ways that we have yet been able to devise of changing anti-social behaviour in an area. Punishment can be administered on the spot, driving home the Government’s message that such behaviour is unacceptable. We believe that it is right to deal with simple, straightforward cases in this prompt and effective way, reserving the courts for disputed and more complex cases. I know that that is something about which the noble Baroness and her party have agreed in the past. Clause 14 specifically extends the range of those who may be accredited to issue penalty notices for disorder to trading standards officers. I am very grateful for the noble Lord’s indication that he is comfortable with any such extension.

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We believe that there are other such classes of enforcement officer to whom it may prove similarly advantageous to give the power to issue notices in this way and thus widen the scope of the fixed penalty notice scheme. The PND scheme will help to deliver the aims of the Government’s respect agenda to tackle anti-social and nuisance behaviour in local communities. As noble Lords may know, numerous safeguards are attached to the use of this power.

First, it will be subject to the affirmative resolution procedure. Parliament will be able to debate the issues fully before voting on the extension of accreditation to another class of people. Secondly, as with trading standards officers, accreditation is under the control of the chief officers of police. Thirdly, the only penalty offences that our new class of accredited person would be able to enforce would be those specified in their accreditation, so it would be strictly controlled. We believe that this power will be a helpful tool in enabling penalty notices for disorder to be used by the wider police family for more cases of minor nuisance offending. For those reasons, I hope that the noble Lord will be prepared to withdraw his amendment.

I shall deal with some of the issues raised by the noble Baroness, Lady Anelay. She said that she was surprised that Ministers were not consulted. I say to her that the press account was not entirely accurate. I was given to understand that most of the proposals alluded to came from police chiefs. My right honourable friend the Home Secretary will not approve any lessening of punishment for violent crime. It is not proposed that the list of offences should be extended to include, for example, robbery, mugging or other serious offences. I understand the anxiety that has been raised by such speculation, but I assure the noble Baroness that her first response to these amendments was correct and any excitement caused outside this House can be left there. We are looking at the most proportionate and effective way of dealing with a problem which is common to all.

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It is interesting how our joint positions have developed. I think that both the Liberal Democrats and Her Majesty’s loyal Opposition now agree with us that anti-social behaviour is a matter that we can address effectively and that penalty notices for disorder are an appropriate way forward. I hope that the noble Lord will feel content with that response and that he will not press his amendment.

Baroness Anelay of St Johns: My Lords, as I said, we will read what the noble Baroness said very carefully but I have a question with regard to her assurances about an affirmative order. I do not go down the line of pointing out the difficulties that we have in this House with our rather cautious approach to dealing with affirmative orders. However, she referred to an affirmative order that the Government might bring forward. Can she give an assurance that, in nominating offences or classes of people with the power to impose on-the-spot fines for particular offences, the order would specify only one offence or one class of people at a time and that the Government would not seek to bring forward, as a kind of curate’s egg, a job lot of offences for consideration by the House?

Baroness Scotland of Asthal: My Lords, I do not think that I can properly give that assurance for the following reason. As the noble Baroness will know, in looking at the extensions that we make, we look at which individual agencies or entities may advantageously have this extension. It would be far too burdensome if we had a debate or consultation. She knows that we tend to go out and consult people, so we try to get it right before we put anything in. If we were all in agreement that four or five identified groups could be included in one audit, it would be too burdensome for me to suggest that we have a series of orders with only one group in it.

I cannot give the noble Baroness the assurance that she seeks in that regard, but I can certainly assure her that every extension will be well presented and argued so that we have a proper understanding on why we are extending it, to give everyone an opportunity. Indeed, I think that this House has become increasingly vigorous, not only in its scrutiny but almost in its informal pre-legislative scrutiny, which does not happen in the normal pre-legislative way, but we have our discussions and debates. It has been one of the joys of this House that we have often been able to come to a consensual view on how to move these orders forward, particularly when talking about an affirmative and not a negative resolution. The House has indicated on occasions when it is minded not to affirm. The curate’s egg goes for both of us, not just for one party.

Lord Dholakia: My Lords, I thank the Minister, but I stress the point made by the noble Baroness, Lady Anelay. One of the difficulties with an affirmative order is that if everybody is bunched together it will be very difficult to single out individuals from within that list, other than by a prayer against that order. I do not think that that

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would be appropriate. At this stage, I will take the Minister’s assurance that the matter will come before the House as part of the affirmative order, and at that stage we will look at the appropriateness of the people to whom the power has been given. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Scotland of Asthal: My Lords, I beg to move that consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.

Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (Expansion of Role) Regulations 2006

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The Minister of State, Department of Health (Lord Warner) rose to move, That the draft regulations laid before the House on 13 July be approved [34th Report from the Joint Committee].

The noble Lord said: My Lords, in considering these regulations, the House will return to issues that were discussed extensively during the passage of the Mental Capacity Act. The regulations are being made under the provisions of that Act, which provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions.

The Act introduces the Independent Mental Capacity Advocate service, a new statutory service, which is independent of both the NHS and local authorities. The aim of the IMCA service is to provide high-quality advocacy to support and represent vulnerable people who lack capacity to make important decisions on serious medical treatment and a change of accommodation.

Under the Act, NHS bodies and local authorities have a duty to consult the IMCA before making certain decisions where there is no one other than a paid carer whom it would be appropriate to consult in deciding what would be in the person’s best interests. The regulations specify additional circumstances where the NHS body or local authority may instruct an IMCA.

We consulted fully on how the regulation-making powers of the Act should be used. We have also consulted further with stakeholders on the regulations themselves. The regulations have been laid before Parliament alongside a further set of regulations—the general regulations, which are subject to the negative procedure. The general regulations cover operational and implementation details, the role and functions of the IMCA and a definition of serious medical treatment. A draft code of practice on the Act, including a chapter on the IMCA service, will also shortly be laid before Parliament.

The consultation responses showed very clearly that there were other situations beyond those listed in the Act relating to a change of accommodation and serious medical treatment, where a person who lacked

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capacity to make serious decisions may be particularly vulnerable. These regulations specify two important new circumstances where NHS bodies and local authorities have the discretion to instruct IMCAs to represent people who lack capacity. Those are care reviews and adult protection, but these regulations do not impose a statutory duty to instruct IMCAs in these circumstances. They are discretionary powers.

Regulation 3 allows for an NHS body or local authority to instruct an IMCA to support and represent a person who lacks capacity to participate fully in the decision where a care review is proposed or is in process, and where the person has been in the accommodation for 12 weeks or more and it was not made as a result of an obligation imposed on the person under the Mental Health Act.

Of course the requirements in the Act relating to the appointment of an IMCA will also apply. That is the person who has no appropriate family or friends who could be consulted, and the person must be unable to fully take part in the care review because of impaired capacity.

Regulation 3 does not apply to arrangements made as a result of an obligation imposed on the person under the Mental Health Act 1983. This is because that Act contains its own safeguards and rights of appeal.

Regulation 4 provides that an IMCA may be instructed to support and represent a person who lacks capacity in cases of abuse where adult protection proceedings have been instigated, and it is alleged that the person is or has been abused or neglected by another person or that he is abusing or has abused another person.

The regulations provide that an IMCA may be appointed in these cases where protective measures affecting the person have been taken, or are proposed, by an NHS body or local authority. They must have been made in accordance with adult protection procedures which have been set up under the “no secrets” guidance issued in 2000 by the Department of Health under Section 7 of the Local Authority Social Services Act 1970.

Noble Lords will see that there is a difference in the conditions between Regulations 3 and 4. Whereas Regulation 3 provides that an IMCA may not be instructed where there is someone whom it is appropriate to consult in adult protection cases, under Regulation 4 an IMCA may be appointed even where the person has family and friends whom it might be appropriate to consult.

I know that there is a great deal of interest in ensuring that the IMCA provides effective safeguards for people who lack the capacity to make certain serious decisions. That is why we wanted to be sure that there was time for proper debate on this expanded role, hence these regulations are affirmative. We also listened carefully to those who responded to the consultation on the IMCA service. Many wanted safeguards for adults who faced abuse, including those cases where it may be the very people who have care of the person who may be accused of being the abuser. Regulation 4 addresses these issues.

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Regulation 5 specifies that the extension of the IMCA role requires that NHS bodies and local authorities must consider for each eligible individual whether they would benefit from this additional safeguard. In some cases, for example, where a person already has an advocate actively involved, the local authority may decide that an IMCA may not be necessary. The extension of the role allows an IMCA to be instructed, but does not require one in all cases.

Secondly, where an IMCA has been instructed, the NHS body or local authority must take into account the information provided by the IMCA in making any relevant decision that results from a review of care arrangements or protection measures. This is intended to ensure that the views of the IMCA are properly taken into account when an important decision is being made.

These regulations are part of a package of measures, including the Act itself, the general regulations, the code and the commissioning guidance, that together provide the framework for implementing the IMCA service. The service will, as a result, provide an important new service: a statutory advocacy service targeted at some of the most vulnerable people in our society. It will provide a new safeguard for them when facing particularly important decisions. We aim to implement the IMCA from April 2007. I beg to move.

Moved, That the draft regulations laid before the House on 13 July be approved [34th Report from the Joint Committee].—(Lord Warner.)

Earl Howe: My Lords, I thank the Minister for introducing these regulations, which we welcome. Because of his comprehensive and helpful introductory remarks, he will be pleased to hear that the points I wish to make about the regulations are few.

For someone who lacks mental capacity, and for whom major welfare decisions must be taken, we all agree that there must be someone capable of making an independent, balanced judgment about their best interests. That is so not only because of ECHR considerations, but also because the principle of giving maximum empowerment to vulnerable people runs through all recent legislation on disability in its various forms. The sections of the Mental Capacity Act covering independent advocacy therefore met with universal approval. It is to the Government’s credit that they chose to include them. I also acknowledge the thoroughness of their consultation.

We are nevertheless in somewhat experimental territory, in the sense of knowing how well these arrangements are likely to work in practice. It is still early days. I understand that there have been pilot projects, and imagine that their results have been factored into the department’s thinking on both the regulations and the associated code of practice. Perhaps the Minister could confirm if that is right and, if it is, tell us what lessons have emerged from the pilot areas.

I say that because the workings of these regulations will need to be evaluated after a reasonable period of time. We need to be reassured principally of two

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things: first, that they are adequate in addressing the advocacy needs of mentally incapacitated people who have no close relatives or friends and for whom no deputy has been appointed by the court; secondly, whether there are any situations or groups of people, other than those specified in the Act or regulations, to whom the provisions could usefully be extended. The Making Decisions Alliance—a consortium of 40 charities with a direct interest in the matters covered by the Mental Capacity Act—has flagged up various possibilities in that context; for example, situations where there are disputes between family members or between the family and the local authority, or cases where there is a clear conflict of interest.

We must be mindful of resources in all of this, and I would not ask the Government to make an open-ended commitment to an unlimited number of IMCAs for all imaginable types of situation. However, the Government need to say that they are willing to learn from experience and that they will not close their mind to the idea that independent advocates should be available in circumstances wider than those currently envisaged as a matter of course.

I am of course aware that the regulations allow for local authorities and NHS bodies to exercise their discretion to instruct independent advocates in situations where that could be of particular benefit to an individual. That is certainly welcome, but my natural caution tells me that theory and practice may turn out to be different things. Both local authorities and the NHS are experiencing tight funding constraints. When funding is tight, statutory bodies tend to resist the notion of paying for things other than those for which they have a legal obligation. In many areas of the country, it is therefore likely that we shall see independent advocates appointed only where there is a statutory duty to do so. We may well see uneven practice emerging, depending on the availability of funding in local areas. I hope that the code of practice may go some way towards countering both those tendencies, but there is a limit to the extent that we can rely on it to do so. It must remain a concern.

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