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Baroness Noakes: My Lords, I thank the Minister for his clear explanation of the order before us tonight. Perhaps I may say at the outset that we on these Benches support the order. It is clearly necessary for the Government to remedy the incompatibility between the 1983 Mental Health Act and the European Convention on Human Rights.

I have two sets of questions for the Minister. The first concerns the clear preference of the Joint Committee on Human Rights for a compensation scheme to have been contained in the order, to which the Minister referred in his introduction, and to the decision of the Department of Health to operate an ex gratia scheme. He also referred to the words of the Joint Committee, which were that it hoped that

"the proposed ex gratia scheme will be applied justly and appropriately"

in part to forestall the possibility of further legal challenge.

Perhaps I may ask the Minister to state the status of the ex gratia scheme. Has a scheme actually been drafted? When will the scheme be made public? What arrangements are there for such a scheme to be drawn to the attention of those who might be eligible?

My second question concerns the Government's proposals for other legislative provisions which contain similar burden of proof issues. Several respondents to the Joint Committee drew attention to Section 72(4) of the Mental Health Act 1983 which deals with applications to the Mental Health Review Tribunal in the context of guardianship. Liberty drew attention to a non-health area, which is the Discretionary Lifer Panels of the Parole Board under the Crime (Sentences) Act 1997. Both have burden of proof provisions which will be open to the criticism which led to the incompatibility declaration in the case which resulted in this order. What plans do the Government have to remedy these provisions so as to avoid further challenges under human rights legislation?

Lord Clement-Jones: My Lords, we on these Benches also welcome the order. I think that Opposition spokesmen probably should benefit from the Human Rights Act in terms of cruel and unusual treatment, being deprived of refreshment post-Committee stage. However, I am delighted that in a

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sense this is a rather historic occasion as this is the first order of its kind under the Human Rights Act, which we on these Benches strongly supported.

The court having made its decision in March last year in Regina(H) v. Mental Health Review Tribunal, North and East London Region, it was right to remove the requirement that the burden of proof should be placed upon the patient. We very much support that, and I am very pleased that the Joint Committee on Human Rights was so positive about the general tenor of the order.

However, a number of matters flow from what the Minister has said. I should like to put on record my thanks to the noble Lord, Lord Hunt of Kings Heath, for the briefing note that was sent around before the debate. It was a very clear and useful way to explain what was in the order to those of us who have not been covering that closely the proposal for an order. It is quite interesting that the actual draft order was tabled last July. Whether it was the ordinary or the urgent procedure it seems rather a slow process. The court decided on the case in March. Yet, here we are a year later faced with an order of this kind. In the meantime, we do not know but it may well be that patients have been prejudiced by the failure to amend the order. Some response is required about future earnest as to whether or not in the future this can be achieved rather more quickly, as a year seems to be rather excessive for what was then regarded as a fairly urgent matter.

There are other matters that the Minister mentioned in his introduction. I welcomed the Minister's statement of the intention to bring forward a new mental health Bill at the earliest possible opportunity. From these Benches I would certainly like to place on record that that mental health Bill is long overdue. The review took place some years ago; the debate took place some years ago. It has been extremely unfortunate from the mental patient's point of view that in a sense that debate has been allowed to die down. We will have to freshen the public debate about issues such as capacity and powers of detention and so on and, in a sense, re-enter that whole public debate which was started so effectively by the review that took place a year after the Government came to power.

Finally, the Joint Committee on Human Rights was clearly disappointed by the Government's views and decision only to institute an ex gratia system. I found the note circulated by the department slightly misleading in that respect. The note states:

"They agreed, however, that the proposal to deal with any claims of compensation on an ex gratia basis will, if applied fairly and justly, forestall any further legal challenge".

Looking at the sixth report of the Joint Committee on Human Rights, it seemed to me that they were rather more equivocal than that. Paragraph 28 states that,

"we continue to believe that the failure to include in the remedial order a provision allowing a person detained in breach of Article 5 by virtue of the previously incompatible legislation to claim compensation as of right would automatically give rise to a violation of Article 5(5) if it proved that that person had been affected by the incompatibility".

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I do not know whether those two statements are themselves compatible. But it seems to me that this is a rather blither interpretation of that than it should be. I should like to ask the Minister whether serious consideration has been given to whether there is a risk of challenge if it is purely an ex gratia scheme; and where the Minister places the likelihood of a challenge being successful. Those are my comments.

8.15 p.m.

Lord Filkin: My Lords, I thank both noble Lords for the helpful way in which they have responded to this order. It is a significant historic occasion. It is the first time that we have seen remedial legislation under the Human Rights Act. That in part explains the Government's caution in the way that they proceeded initially under the non-urgent procedure.

I turn first to the question of the noble Baroness, Lady Noakes, as to why there is not a statutory scheme. In short, there are two reasons: first, there was some legal advice that a statutory scheme could create further legal problems in putting some cases outside, some subsequent tribunal decisions having made them null and void.

The second reason—which is more substantial—is that the ex gratia scheme will give a significantly greater scope for beneficial flexibility on behalf of any potential claimants. Perhaps I may give a couple of examples. A statutory scheme would require a patient to demonstrate that, were it not for the incompatibility, he would have been discharged, which is the proper test legally for damages, whereas an ex gratia scheme, which is based on this notion, is flexible enough to allow the Government to meet claims that do not strictly satisfy the test where it is just to do so.

Further, a statutory scheme would have time limits for claims to which it must adhere, whereas an ex gratia scheme allows more flexibility. Where the patient is not able to demonstrate conclusively that the incompatibility led to his continued detention, the Government could under an ex gratia scheme consider what case he had been able to make out and to take a view on compensation accordingly. We believe that there are likely to be extremely few cases. But in practice we hope that it will give a little more flexibility to make judgments which in the circumstances are benign rather than harsh.

The noble Baroness also asked about the status of the scheme. Essentially the levels of compensation of the scheme in such cases would be set according to the Strasbourg conventions. So there would be principles that would underpin it. The Government do not have a fully worked out scheme at this stage. But we shall be looking on a case by case basis and seeking to apply the Strasbourg principles to any cases that come forward.

The noble Baroness also raised a question about how this will be brought to the attention of any interested bodies. I strongly agree that that is a relevant issue. As soon as the incompatibility was apparent in terms of the Court of Appeal's judgment, the Government wrote to a range of bodies—the most

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significant of which for these purposes was the Law Society—bringing the matter to their attention. In the circumstances I can see that nothing would be lost by the Government again writing to the Law Society and all other interested bodies on, one trusts, the confirmation of this order, further drawing the attention of lawyers (who represent nearly 100 per cent of all such people) to the potential for making claims in what are relatively tight circumstances, should they believe that they have a case to make. The Government would not want anyone not to be able to make a legitimate claim through ignorance—without wanting to raise hopes of there being a vast army of such people able to do so.

Baroness Noakes: My Lords, on a point of clarification. When evidence was given to the Joint Committee, much reference was made to an ex gratia scheme. It was referred to several times in a letter from a Department of Health Minister. As I understand it, the Minister is now saying that there is no scheme—that there is a set of principles but it will be applied on an ad hoc basis. Is there a scheme to which a body—perhaps the Law Society, although I encourage the Department of Health to consult a little wider among any bodies that may represent patients and are concerned with their rights to compensation—can look to know what they can expect from the Government?

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