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Baroness Hollis of Heigham: My Lords, I thank both the noble Baroness and the noble Earl for their questions. I begin with the substantive point made by both speakers; namely, when the computer system will become operational. Perhaps I may remind the House that, at the end of April of this year, we proposed to take on the new cases that would filter through the system. Subsequently, around a year or so later when we were confident that the system was secure, we intended to take on the existing caseload. We are not confident that the proposed new system is secure for new cases, primarily because, in our judgment, it has not yet been sufficiently tested so that the risk of any
major problem arising is acceptably low. It is possible that the system will not face significant problems, but it has not received the sustained testing required.Crucially, as your Lordships will recall, one of the changes under the new system that has been broadly welcomed is that the parent with care will retain up to £10 of maintenance paid. This means an interface of the new computer with the IS/JSA systems. That interface does not currently exist. The IS/JSA computer is 20 to 25 years old. For the sake of all the parents on benefit—a substantial proportion of the caseload—we must be very sure that that interface is secure if such payments are to be made. We need to know that this type of detailed testing will survive when we throw a heavy caseload at the system. Therefore, the Secretary of State made it very clear that we shall go ahead with taking on the new cases when we are confident that the testing has shown that the risk is as low as we can make it and that the system will work. I am not in a position to tell the noble Baroness how long that process will take. Obviously, I hope that it will be carried out as quickly as possible. We must be sure that the system is robust to handle the proposed workload.
We consulted the voluntary organisations and discussed the matter with those concerned at the same time that the Secretary of State made his announcement to Parliament. They entirely support what we are seeking to achieve. They would prefer a system with the risks minimalised to one where we deliver to our original target time but where the risk might be unacceptably high. Indeed, in that case we might have particular problems with the interface of the IS/JSA system. Having said that, I should point out that that does not automatically mean that the existing caseload will come on stream a year afterwards. We may, or may not, be able to reduce that time. We must ensure that the system is robust. There is no automatic read across in this respect.
I am trying to be frank with the House. I must emphasise the very difficult decision with which the Secretary of State was faced—
Earl Russell: My Lords, perhaps I may be excused for making what may appear to be an irrelevant intervention at this point. I have just realised that I forgot to make an apology to the Minister for not giving her advance notice of the points that I intended to raise this evening. I should point out that I only worked out my queries in the 20 minutes before the matter came before the House. Nevertheless, I very much owe the noble Baroness that apology, which I beg her to accept; it is sincere.
Baroness Hollis of Heigham: My Lords, I am most grateful. As the noble Earl, Lord Russell, commented, I recognise that these regulations are extremely technical in their phraseology. He is quite right. When you have regulations to amend regulations under a Bill, it is very hard to decipher what is going on once you have delved back into the past. I wonder whether the House is now content with the explanation that I tried to offer on the substantive issue raised; namely,
the timing issue. One is trying all the time to make a judgment on meeting a proposed timetable that increasingly looks risky. Given the number of cases with which we shall deal on a month-by-month and day-by-day basis, I hope that noble Lords will understand that we cannot afford an unacceptably high risk to those clients. I give way to the noble Baroness.
Baroness Noakes: My Lords, I am much obliged to the Minister for giving way. We still have no idea of timing. Before going ahead with the system live, I assume that the department has had some detailed discussions with EDS over the nature of its concerns and that there is an agreed programme of testing, remedial work, and so on. Indeed, that is normal in such cases. However, can the noble Baroness tell us what timescale the department is working to with EDS? I fully accept that further problems may emerge; for example, the early results of testing may highlight more problems; and, indeed, there may be further issues to be unravelled. Nevertheless, I find it odd that there is no timetable to be shared with the House.
Baroness Hollis of Heigham: No, my Lords; I cannot give the noble Baroness the information that she requires. We are working very closely with EDS. I am sure that the noble Baroness will recognise that the contract we have with EDS means that no money is paid until the system is handed over in working order. Therefore, EDS has every incentive to work with us, not only closely—which is the case—but also as speedily as possible. I have no complaints about the resources that EDS is throwing at the system. It could be argued that the system has been sufficiently tested to assure us that the risk is as low as we can make it. However, at the end of the day, we are asking for quite complicated interfaces to be developed. As I said, we are not yet confident that that is the case.
I wish that I could be more helpful to the noble Baroness, but I genuinely have no further information to give her. We are not talking about commercially-sensitive issues. I am simply saying that neither I nor the Secretary of State know at what point we shall be sufficiently confident that the risk is minimal, and when we shall be ready to come to Parliament and give a date for what we call "A day"—namely, the take on of new cases.
The noble Baroness asked about the parentage revision and to what it applied. The revision applies only to the new scheme because the current scheme uses the cancellation provision to dispose of the maintenance assessment where a non-resident parent (an NRP) turns out not to be a parent. It is a new way under the new scheme of doing what we currently have a power to do, but, given the new structure of the scheme, this does not carry over. The noble Baroness also asked about the enhanced disability premium. She will understand that, in future, where the NRP—I use a gendered word, as this could apply also to the noble Baroness, though most NRPs will be male—has an income of £200 a week, he will be paying a percentage
slice of his income. Therefore, particular ingredients of this are not affected. Obviously, if the person is on benefit income, or in receipt of an income of less than £100 a week, he will be paying a flat rate £5—every penny of which, incidentally, will be going to the parent with care, not to the Treasury. Therefore, it is, indeed, child support.Finally, the noble Earl, Lord Russell, asked two questions. The first concerned the regulations. He asked whether, as he put it, this was a major hornets' nest or an issue of drafting; no, it is not. Regulations 6, 7 and 8 come into force when the regulations are made, but they amend regulations which will come into force only when the new child support scheme begins. They are amendments with immediate effect to regulations which will come into effect only with the new scheme. The noble Earl is right to pick us up on that, but "it is OK", if I can put it in those words.
The noble Earl asked what Regulation 4(a) means. It concerns shared care. If both parents share equal care of a child, regulations provide that the non-resident parent is the person who is not in receipt of child benefit.
Earl Russell: My Lords, I thank the noble Baroness for giving way. I may be able to save her some trouble. I said that I did not understand that in the original draft but that I did understand perfectly the Minister's previous explanation.
Baroness Hollis of Heigham: My Lords, I would certainly say something different the next time around, which would only add to confusion. I shall seek to conclude here and hope that I have addressed your Lordships' queries.
Baroness Noakes: My Lords, I may have misunderstood the Minister's reply. The question I asked was in relation to Regulation 5, the enhanced disability premium and the disregard or the inclusion in exempt income. I asked whether that applied only to the old scheme and not the new scheme, and if so, why?
Baroness Hollis of Heigham: My Lords, perhaps I may explain to the noble Baroness that questions such as sources of income do not come into play under the new scheme because it is a simple slice of the formula. Under the existing scheme we have protected income, exempt income and so forth. As a result it does not matter about the income flows. I was trying, which possibly added to the confusion, to make a difference between levels of income and when those percentage slices kicked in. However, I believe I have addressed the question asked by the noble Baroness.
On Question, Motion agreed to.
Mental Health Act 1983 (Remedial) Order 2001
8.2 p.m.
Lord Filkin rose to move, That the order laid before the House on 19th November 2001 be approved [6th Report from the Human Rights Committee].
The noble Lord said: My Lords, I beg to move that the Mental Health Act 1983 (Remedial) Order 2001 be approved. The purpose of today's debate is to seek approval of the remedial order amending the Mental Health Act 1983 that was made on 18th November 2001 and laid before Parliament on the day following. The purpose is, in essence, to ensure that mental health legislation is consistent with the Human Rights Act 1998 and the European Convention on Human Rights.
The case that led to the making of this order concerned a patient who was detained for treatment under the Mental Health Act 1983 and who had applied to the Mental Health Review Tribunal for discharge from detention under the Act. It was argued before the courts that under the Act the tribunal was not required to discharge a patient unless satisfied that at least one of the criteria set out in the relevant section did not exist. That double negative formulation had the effect of placing the burden of proof on the patient, and it was argued that that was incompatible with Articles 5(1) and 5(4) of the European Convention on Human Rights.
The Court of Appeal accepted those arguments and declared on 4th April last year that these sections were incompatible with Articles 5(1) and 5(4) of the ECHR. Section 10 of the Human Rights Act sets out procedures for remedial action to be taken to remove such incompatibilities.
Section 4(6) and 6(2) of the Human Rights Act preserve the sovereignty of Parliament. It therefore requires action by Government to remedy an incompatibility. This is the first declaration of incompatibility requiring remedial action under the Human Rights Act. A number of options exist potentially for addressing such an incompatibility. First, even though the Court of Appeal refused leave to appeal, it was a possibility to petition the House of Lords. It was the Government's view that there was no discernible error of law in the Court of Appeal's judgment and in addition, the judgment was not out of line with the thrust of government policy intentions for new mental health legislation as set out in the White Paper Reforming the Mental Health Act.
Next, consideration was given to introducing legislation to amend the relevant sections of the Mental Health Act, but that approach was rejected on the grounds that the amendments needed fell outside the scope of any planned Bills. It would not be appropriate to introduce amending legislation on that matter before Parliament had an opportunity to consider a new Mental Health Bill in its entirety.
The Government are committed to introducing a Bill to replace the Mental Health Act as soon as time is available, but to wait for that would lead to an
unacceptable delay in remedying the incompatibility. The Secretary of State therefore decided that in the circumstances, making a remedial order would be the best approach.Under provisions in the Human Rights Act there are two procedures for introducing a remedial order: the "ordinary procedure" and the "urgent procedure". As it would imply, in the case of an urgent procedure an order may be made if it appears that, because of the urgency of the matter, it is necessary to make an order without the draft having first been approved by Parliament.
At the outset the Secretary of State intended to use the ordinary procedure to give Parliament the opportunity to review and debate the order before it came into effect. However, the Joint Committee on Human Rights considered that the remedying of an incompatibility which could affect the liberty of individuals should be regarded as an urgent matter and that the change in the law proposed was relatively simple and uncontroversial. In the light of that view the Secretary of State decided to make an order under the urgent procedure.
The committee also raised a number of other questions. It was in general satisfied with the responses, except that it considered that it would have been appropriate to include a statutory compensation scheme in the remedial order. The Secretary of State, on the other hand, proposed that any claims for compensation should be handled on an ex gratia basis. While expressing its disappointment that its suggestion was not accepted, the committee did not insist on it and agreed that the proposal to deal with any claims for compensation on an ex gratia basis will, if applied fairly and justly, forestall any further legal challenge.
I shall speak briefly on the context for this change. The House will be aware that the Government are committed to reforming the Mental Health Act 1983 because of the significant developments in the way in which patients with mental health problems are treated have come about. New drug treatments and different patterns of care make it generally necessary and important to do so, let alone the Human Rights Act and the European Convention on Human Rights, which also make necessary the need for reform. However, as the House is aware, there is no legislative slot at present for that.
In addition, new legislation on its own will not be sufficient. There need to be effective community-based services that are acceptable to those who need to use them, improving mental health services. Without detaining the House, the Government published in the National Service Framework for Mental Health, the broad thrust of how they intend to move forward making significant improvements in the standard of mental health services. The NHS Plan builds on the work which has been done previously.
The Government have committed themselves to a radical reform of mental health service provision and of the mental health legislation that underpins it. But to achieve such an ambitious programme of change
requires time. That is why we are taking action through the remedial order to ensure that the existing legislation is compatible with the provisions of the ECHR. I am satisfied that the order, as it stands, ensures that the relevant provisions of the Mental Health Act are now compatible with the European Convention on Human Rights and therefore afford better protection of patients' rights. I commend the Order to the House.
Moved, that the order laid before the House on 19th November 2001 be approved [6th Report from the Human Rights Committee].—(Lord Filkin.)
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