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The noble Lord said: This is a probing amendment that deals with a short point in Clause 42. I decided to look for the background for that clause and found that it seems to be based, loosely, on Section 1 of the Children and Young Persons Act 1933, which is still the statutory basis for the crime of wilfully ill-treating or neglecting a child. Under the 1933 Act, the maximum penalty for ill-treatment or neglect was imprisonment for two years. The present maximum term of imprisonment under the 1933 Act has been raised by subsequent legislation to a period of 10 years. While I am not in principle a believer in the virtues of long terms of imprisonment, I wonder why the maximum penalty for ill-treating or neglecting a person lacking capacity is only half the maximum penalty for ill-treating or neglecting a child. I beg to move.
As the noble Lord will know, but other noble Lords may be unaware, the period of imprisonment was increased to five years as that made the offence an arrestable one and people can be arrested for it without a warrant under Section 24 of the Police and Criminal Evidence Act 1984. It was one of the key aims of the Disability Now campaign Justice for Survivors, launched in December 2003 which was aimed at ensuring that victims of cases like Longacre were properly protected and the culprits properly punished.
I can assure the noble Lord that we did look carefully at the possibility of increasing the maximum sentence, as it is proposed, but we recognise that the increase to five years has brought it more in line with other serious assaults on individuals, including the offences of inflicting grievous bodily harm and assault occasioning
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actual bodily harm. It would therefore be strange to have an offence which causes harm by neglect, with a maximum penalty which is greater than the maximum penalty for GBH, for example.
I also checked that for the offence in the Children and Young Persons Act 1933which covers not only ill treatment and neglect but wilful assault, abandonment and exposure, and which requires likelihood to cause unnecessary suffering or injury to health, even where a child has diedthe penalty on conviction was increased from two to ten years by Section 45 of the Criminal Justice Act 1988. The matching Scottish offence was subject to the same change. There was no doubt a good policy reason for the significant change at that time, but I cannot find what it was. I therefore cannot help the noble Lords to understand why the law relating to children is out of stepif that does not sound too awfulwith other aspects of the law. The equivalent offence in the Adults with Incapacity (Scotland) Act 2000 has a maximum penalty of two years.
Five years brings the Bill into line with other aspects of crime. It is actually the law relating to children which is out of step, again if that does not sound too terrible. I hope that I have answered the noble Lord's point.
Lord Goodhart: I am grateful to the Minister for explaining the cause of the distinction, which puzzled me when I first saw it. I now understand the reasoning behind this. I am glad that there has been an opportunity for research and I beg leave to withdraw the amendment.
The noble Lord said: In speaking to Amendment No. 182 I wish also to speak to Amendments Nos. 183 to 185. This group and the following group are a matter for lawyers rather than mental health experts, so the mental health experts in the Chamber can now take a rest.
The purpose of this group of amendments is to transfer responsibility for the appointment of judges of the Court of Protection from the Lord Chancellor to the Lord Chief Justice. The Bill describes these not as an appointment but as a nomination. The nomination will be of existing judges who will retain their existing ranks in the judicial hierarchy. There will be no cases of first appointment or of promotion. They are therefore a matter of judicial deployment.
When the Constitutional Reform Bill comes into force this will cease to be a matter for the Lord Chancellor. It will not become an appointment for which the Judicial Appointments Commission is
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responsible but will come within the scope of the powers of the Lord Chief Justice, as part of his responsibility for deployment of judicial power.
I recognise that these amendments are premature, as it is not appropriate to enact them until the Constitutional Reform Bill is in force. It is therefore not my intention to press them, either today or at any subsequent stage. However, I would like to ask whether the amendments in the names of myself and the noble Baroness, Lady Barker, are in fact a correct forecast of what will happen, or what is expected to happen, when the Constitutional Reform Bill comes into force. If not, what other arrangements will be made? I beg to move.
Baroness Ashton of Upholland: I am neither a lawyer nor a mental health expert. The noble Lord, Lord Goodhart, will forgive me if I have a sense of déjà vu in the light of the legislation we have discussed in the past 24 hours. I congratulated the noble Lord on spotting this point at Second Reading.
The noble Lord, Lord Goodhart, rightly said that Clause 44 gives the Lord Chancellor the power to nominate judges to sit in the new court of protection, which is in keeping with the current role of the Lord Chancellor. If the Constitutional Reform Bill is enacted, the changes will be introduced to bring these functions into line with the agreement reached between the Lord Chief Justice and the Lord Chancellor, which we know lovingly as "the concordat".
An amendment of the kind proposed by the noble Lord will therefore need to be made if the Constitutional Reform Bill is passed in its present form. My notes say "Nothing is certain in politics"; that is certainly true. We cannot assume that the Bill will finally be enacted in the form in which it leaves this House. This Bill is not the only one affected by the Constitutional Reform Bill. A number of pieces of legislation have been enacted since the Bill was introduced in your Lordships' House.
The noble Lord, Lord Goodhart, will know, but other Members of the Committee may not, that the Constitutional Reform Bill provides that such legislation can be amended by affirmative resolution. Such an order will be made concerning all the affected legislation once we have received Royal Assent. I hope that that addresses the noble Lord's concern and that he is able to withdraw his amendment.
"( ) There are to be rules of court (to be called "Court of Protection Rules") governing the practice and procedure to be followed in the Court of Protection.
( ) Court of Protection Rules are to be made by a committee known as the Court of Protection Rules Committee."
The noble Lord said: The purpose of the amendments in this group is to set up a rules committee for the Court of Protection instead of having rules made by the Lord Chancellor or by someone to whom the Lord Chancellor has delegated that responsibility. Earlier we debated the right of a Minister to delegate powers.
The movement is towards having independent rules committees. The Courts Act 2003 added a Criminal Procedure Rules Committee and a Family Procedure Rules Committee to the long-standing Civil Procedure Rules Committee. The purpose of Amendment No. 187 is to provide for a committee to make the rules.
Amendment No. 187 is not in itself complete: it would require a number of further provisions. For example, the Courts Act provides the rules made by rules committees to be approved by the Lord Chancellor. That has not been altered by the Constitutional Reform Bill and would need to be incorporated into this Bill if the principle were accepted.
It is true that the Court of Protection will be a smaller operation than the family or criminal courts, but it will have an equal need for rules. I see no reason why rules committees should not be set up as a statutory body. The rules committee will be made up of people with real experience in the field and Amendment No. 188 sets out a suggestion of how the committee should be constituted. Again, it is based loosely on the make-up of the Family Procedure Rules Committee. I suggest that it should consist of the president of the Court of Protection and three other judicial members of it; the Public Guardian; one legal practitioner with experience of the Court of Protection; two visitors, one general and one special; and two people with experience of people who lack capacity. The judicial members will be appointed by the Lord Chief Justice; the others by the Lord Chancellor. That matches the proposals for the Family Procedure Rule Committee as amended by the Constitutional Reform Bill. That seems to be the right balance, but I am not wedded to it.
Although I remember that at Second Reading, the Minister indicated that it would be inappropriate to have a separate statutory rules committee for the Court of Protection because it was a substantially smaller body than the family or criminal courts, nevertheless it seems in principle right and in accordance with modern practice that bodies which are separate courts should have separate rules committees with the responsibility, subject to the involvement of the Lord Chancellor, of making the rules for that court. I beg to move.
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