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Railways: East Coast Main Line
3 pm
Lord Berkeley asked Her Majesty’s Government:
Whether the past performance of train operating companies will be taken into account in evaluating the bids for the new east coast main line franchise.
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Lord Bassam of Brighton: My Lords, yes. Companies that wish to bid must provide comprehensive evidence of their ability to operate in a safe, reliable and sustainable manner. That evidence must include specific details of past, present and planned operational and commercial performance in either rail or other passenger transport services.
Lord Berkeley: My Lords, I am grateful to my noble friend for that Answer. In the case of the GNER franchise, on which there will be an announcement soon, has First Great Western submitted evidence about its recent performance? There have been delays, cancellations and a lack of standing room, so you cannot even get on to the train, while 12 trains sit in a siding. Does my noble friend believe that such a track record would encourage people to travel from Edinburgh to London, perhaps standing all the way, when the company has parked up half its trains in the siding to save money?
Lord Bassam of Brighton: My Lords, First Great Western’s performance problems are well known and have been well advertised. The department monitors those issues carefully. However, it is entirely open to First Great Western to enter the bidding process for the current GNER operation.
Lord Bradshaw: My Lords, can the Minister be much more specific? Is past performance taken into account when companies pre-qualify or when they submit their final bids? If it is when they submit their final bids, how is it valued in monetary terms?
Lord Bassam of Brighton: My Lords, it is taken into account at all stages of the process. Past performance is extremely important, as I am sure the noble Lord will be aware; it must be fully and robustly assessed when the franchise is let.
Baroness Hanham: My Lords, why have the Government insisted on using the minimum timescales allowed under EU law for the submission of bids for this franchise? Only 18 working days were allowed for the completion of all the necessary documents and for legal and financial preparation, so that only those companies that made failed bids last time were able to meet the deadline. That has ruled out several interested bidders and limited the number of bidders, particularly those that were unsuccessful as recently as three years ago.
Lord Bassam of Brighton: My Lords, I am aware of some concerns about the bidding period, but it is right that we stick to that timetable. Companies were well aware of the process and will, no doubt, be well aware of the other stages of the franchise-letting arrangements. The system is well understood and should work well in this situation.
Lord Shutt of Greetland: My Lords, I travelled down on the east coast main line this morning, together with several noble Lords, and benefited from at least some of the splendid catering, although not
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Lord Bassam of Brighton: My Lords, it might surprise the noble Lord to know that, when I was being briefed for this Question, I asked exactly the same question. Someone reminded me that I had answered a Written Question on that point some weeks ago. Of course catering is important. Franchise bidders will be required to provide a high-quality service at stations and on trains, but it will be for bidders to determine the appropriate level of catering offered on board. GNER has a particularly good track record in that respect, and I have enjoyed the Great British Breakfast on a few occasions.
Lord Snape: My Lords, those of us who travel on Virgin trains envy the catering provided by GNER—or whichever company takes over the franchise. However, does the Minister accept that there is widespread belief in the railway industry that, since the Government decided to micromanage the franchises and the franchising procedure, all they are looking at is minimum service and maximum premiums? Can he say anything to disabuse the railway industry of that view?
Lord Bassam of Brighton: My Lords, my noble friend is very knowledgeable on these matters; he touches on a subject that is obviously one for public comment and debate. I happen to disagree with his latter comments. I was drawn to conclude that GNER provides a better breakfast than Virgin, but that is just my personal view.
Lord Elliott of Morpeth: My Lords, will the noble Lord accept that there is a general appreciation of the quality of the service on the east coast main line?
Lord Bassam of Brighton: My Lords, that is true, but we must continue to work to drive up the quality and standard of services. We will ensure that the franchising process delivers the highest quality of service that can be afforded on that line to maintain the improvements achieved so far.
The Earl of Mar and Kellie: My Lords, east coast passengers have been accustomed to a very high standard of service for a long time. Will that standard of service be protected in the franchise-bidding process?
Lord Bassam of Brighton: Yes, my Lords, that is exactly the situation.
Lord Stoddart of Swindon: My Lords, do we not want an excellent service throughout the country? Is the franchising system the best way of achieving that? After 10 years, is it not about time that the Government looked at the whole basis of the railway system in this country?
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Lord Bassam of Brighton: My Lords, we can always rehearse history, and in recent months the party opposite has begun to apologise for introducing rail privatisation when and how it did. However, we have a franchising system and it is our duty and obligation as a Government to get the very best from it. That is what we are achieving. More people are travelling on trains now than at any time since 1960 and more people are coming back to the rail network, having realised that it can provide high-quality services and speedy transportation.
Business
Lord Grocott: My Lords, with the leave of the House, at a convenient time after 3.30 pm, a Statement will be repeated by my noble and learned friend Lord Falconer. The subject is “House of Lords Reform: Voting Procedure”.
Delegated Powers and Regulatory Reform Committee
Merits of Statutory Instruments Committee
Privileges Committee
Constitution Committee
The Chairman of Committees (Lord Brabazon of Tara): My Lords, I beg to move the Motions standing in my name on the Order Paper.
Moved, That Lord Faulkner of Worcester be appointed a member of the Select Committee in the place of Lord McIntosh of Haringey, resigned.
Moved, That Baroness Adams of Craigielea be appointed a member of the Select Committee in the place of Baroness Morgan of Drefelin, resigned.
Moved, That Lord Eames be appointed a member of the Select Committee in the place of Lord Browne-Wilkinson, resigned; and that Lord Woolf be appointed a member of the Select Committee.
Moved, That Baroness Quin be appointed a member of the Select Committee in the place of Lord Carter, deceased.—(The Chairman of Committees.)
On Question, Motions agreed to.
Government Spending (Website) Bill [HL]
Baroness Noakes: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Baroness Noakes.)
On Question, Motion agreed to.
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Mental Health Bill [HL]
3.08 pm
Earl Howe moved Amendment No. 1:
“Guiding principles (a) the importance of the patient participating as fully as is possible in the discharge of the function; (b) the present and past wishes and feelings of the patient which are relevant to the discharge of the function; (c) the principles of non-discrimination contained in— (i) the Sex Discrimination Act 1975; (ii) the Race Relations Act 1976; (iii) the Disability Discrimination Act 1995; and (iv) the Equality Act 2006.(2) After having regard to the matters mentioned in subsection (1) above, the person shall discharge the function in the manner that involves the minimum restriction on the patient that is necessary in the circumstances.””
The noble Earl said: My Lords, we begin our Report stage by returning to an issue that occupied us in Committee for several hours and which, of all our Committee debates, perhaps elicited the most support from around the Chamber. I refer of course to the case that I and others put for including a set of key overarching principles in the Mental Health Act.
The reasons for wanting to do that are very simple. First, we need a clear statement from Parliament about the values that should inform and guide those tasked with putting the Act into practice. Secondly, we need to reassure the public and those in receipt of mental health services under conditions of compulsion that the values and principles set out in the Act should permeate how those services are provided. Thirdly, we need to give greater clarity and certainty to the courts, which over the years have been asked to rule on numerous challenges to the Mental Health Act on human rights grounds.
A view expressed in Committee was that a good code of practice can be more effective in law than can principles in a Bill. Some people believe that practitioners will use the code more readily than the law. The code is indeed indispensable in that sense, but we are dealing with no ordinary legislation. This legislation provides for individuals who have committed no crime to be detained and treated under conditions of compulsion and to be subjected to procedures and treatments that are highly invasive. The inherent three-way tension in the Bill between the rights of patients, public safety and avoiding the excessive and inappropriate use of coercive powers makes it essential to have clarity about the underlying values.
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Those considerations, above all, have led me and many other noble Lords to conclude that not simply the code of practice but the Act itself must enshrine a set of relevant principles to guide those who interpret and implement it. We know that practitioners regularly refer to the Act itself, and that the Act has a far greater influence on case law than the code of practice. Indeed, case law says that the code of practice can be departed from according to circumstances but that guiding principles are of general applicability.
In Committee the Minister made it clear that his objection to including principles in the Bill was not so much constitutional as a worry about their practical impact. I have never concealed my view that the principles are designed to have a practical impact; indeed, that is their whole point. It is clear from the Act as it is now that various principles are already implicit in it. The noble Lord, Lord Hunt, took us through those. I share his view that nothing should be done to the Mental Health Act that might detract from its clarity. I believe that his fears about possible unhelpful conflicts between what is implicit in the Act and what is explicit in the Committee amendment were overdone.
Since Committee, I have had the benefit of private discussions with the Minister, for which I thank him. I have taken careful note of the points he made about the possible risks involved in framing an amendment of this nature. I have also borne in mind the Government’s comments in response to the joint scrutiny committee indicating that a limited set of broad and general principles would be acceptable if properly drafted. I see nothing whatever difficult or contentious about the principles for which I argued in Committee. They are all important.
Nevertheless, this amendment is briefer and less ambitious than the earlier one. It is designed to enshrine four principles of general applicability, which I hope and believe do not conflict with the interpretation of the Act as it currently exists. They are: patient participation; the importance of having regard to the patient’s past wishes and feelings; the avoidance of unfair discrimination in all its forms; and the principle of least restriction.
I argued for all of those in Committee and do not propose to repeat the points I made then. Let me simply say this: the way to make the Mental Health Act work in its revised form is to give patients and service users maximum confidence in it by making them feel that they are still trusted and that their views matter, even if they are, at that very moment, being subjected to coercion. We know from reports by the Mental Health Act Commission that too many patients feel excluded from decision-making and that that feeling of exclusion exacerbates non-compliance. Equally, we have only to think back to our debates on the Mental Capacity Bill to remember that the wishes and feelings of the most vulnerable in society are of central importance to the way in which medical practice is now moving.
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3.15 pm
The Minister may criticise as legally superfluous the part of the amendment dealing with non-discrimination, but even something legally superfluous can have value. It has a declamatory value to a patient who has been on the receiving end of discrimination and prejudice in any of its forms and it also has a powerful symbolic value, reflecting the priorities of Parliament and the feelings of society more generally on mental health law. The fears experienced by black and ethnic-minority communities need to be in our minds most particularly. We know that discrimination towards patients from those communities is commonplace. The consensus in the BME Mental Health Network is that specific measures must be built into the Act to set the parameters of acceptable behaviour by mental health professionals.
Finally, there is the principle of minimum restriction. Minimum restriction should apply not only when detention has taken place but also at the earlier assessment stage, when practitioners need to think about whether all other alternatives to compulsion have been exhausted. The principle relates to how the powers under the Act are used; for example, in granting leave of absence or supervised discharge and in the form of treatment given. The way that those powers are used can, for good or ill, profoundly affect the patient’s recovery and his degree of engagement with mental health services in future. People who are subjected to coercive measures undergo dreadful trauma and deep humiliation, often at a considerable social cost. A principle that makes clear that such powers must only ever be used with the utmost care and discretion seems essential. I know that the Minister has given these issues a lot of thought since we debated them in Committee, and I hope that he will give us an answer that reflects those deliberations in a constructive and positive way. The case for the amendment is overwhelming. I beg to move.
Baroness Barker: My Lords, in Committee I raised the question of what mental health legislation is for. I return to that matter today. It goes to the heart of why we need principles in the Bill. Like the noble Earl, Lord Howe, I have been involved in detailed discussions since Committee about whether it is possible or desirable to include principles in the Bill. I have gone away from every meeting trying to answer the question of what difference it would make in practice. The answer came to me after I listened to two people.
The first person was Professor Appleby, the Government’s mental health adviser. On 30 January, in a meeting with a number of all-parliamentary groups, he talked about the role of mental health legislation. He said that it is possible to take one of two approaches: either you believe that mental health legislation is about enshrining rights and responsibilities—in which case practitioners are looking over their shoulders all the time to make sure that what they are doing is correct—or you believe that there should be a limited role for the law and that practitioners should be allowed to carry on and get on with the job of making people better. Those were
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The second person who gave me some clarity on the matter was the Minister. In our discussions in Committee he talked about the 1983 Act. He said that it already contains overriding principles,
- “albeit that they are inherent in its provisions and not separately spelled out”.—[Official Report, 8/01/07; col. 47.]
He went on to list six, one of which is the principle of least restriction. Twenty-three years on, arguments are still raging about whether that principle is enshrined in that legislation, and, if so, to what parts of mental health practice it applies. It is no wonder that practitioners look over their shoulders. There is a lack of clarity about the law.
I have listened very carefully, not least to the noble Lord, Lord Soley, who in Committee talked very convincingly about dealing as an MP with very difficult cases of people with a mental illness causing extreme problems for other people. However, I have concluded, for the reasons I gave, that unless we have not only a clear statement of principles in the legislation but also clarity about how the legislation and the code of practice work together, we will condemn practitioners and people subject to this law to continuing confusion. That, I believe, would be wrong when we have the chance before us to shed light on the matter.
My second point is, again, one that I raised in Committee. If we accept that there should be principles, what should they be? The noble Earl, Lord Howe, has explained why this time around the amendment, which stands in both our names, has been changed to accommodate some of the problems that parliamentary counsel outlined. I accept that we had to change the provisions, just as those of us who worked on the Mental Capacity Act did when we were trying to achieve the same ends. Parliamentary counsel explained that we could not use the standard equalities and diversity format that one would use elsewhere.
I want to return to the principles in the code of practice and to take issue with how some are written. The participation principle in the code of practice talks about care or treatment being provided in such a way as to promote patient participation, self-determination and personal responsibility to the greatest practicable degree. It is not clear exactly what that means.
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