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However, the Government seem determined to do this. I detect from the debate that they prefer this amendment to the one in Committee and perhaps they will see their way clear to putting principles, which according to their lights are appropriate, in the Bill. I support my noble friend.

The Minister of State, Department of Health (Lord Hunt of Kings Heath): My Lords, as in Committee stage, we have had a very good debate on the question of principles and I hope to offer noble Lords a constructive way forward.

There is no disagreement between the Government and noble Lords who have spoken today. Like the noble Earl, Lord Howe, we wish to see a clear statement of values, as he described it. Nor is there any argument about the need for as much clarity as possible both within the legislation and the code of practice. We could have a theological debate about the thousands of practitioners out there and the extent to which they consult the legislation and the code but it is clear that, collectively, we have to ensure that practitioners understand both the legislation and the guidance. That understanding goes together.

The Government’s concern all along has been with the way that the amendments have been put forward. Although it appears to be straightforward to add a number of principles to the Bill, unless these things are drafted as carefully as possible, far from giving clarity, there could be confusion among practitioners. That is why we have been working hard to see whether we can find a way through that accommodates the clear wish of noble Lords and practitioners to understand fully the principles that inform the way this legislation will be dealt with and practised, at the same time as ensuring that we clarify and not confuse.

There is no argument that the principles that underpin a Bill that amends an established Act, which enables people to be deprived of their liberty, are of critical importance. Deprivation of liberty is a serious issue and we must deprive people of their liberty only when it is essential to do so. We have to achieve the right balance of powers to intervene to prevent harm and to safeguard an individual's rights. However, in the light of comment on the Bill over the past weekend, I want to emphasise that the intention is not to lock up more people or to keep people unnecessarily under compulsory powers once they have been detained in hospital. The Bill is about ensuring that people who need treatment, because they have a mental disorder that is so serious that they are a danger to themselves or others, get the help and protection that they need in the right

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environment. We want to reduce the incidence of patients with a mental disorder losing touch with mental health services after being discharged from hospital, getting ill and reaching a crisis.

It is clear that the principles that we have debated today and in Committee would provide reassurance about our intentions with the legislation. In Committee, I explained some of the problems that we have with including principles in the Bill. I know that the noble Baroness, Lady Carnegy, criticised the government response, but in my winding up speech I said that it was not about the niceties of parliamentary draftsmen. Because of the way that these amendments would appear in the Act, there is a danger that, instead of the clarification that she seeks, considerable confusion and uncertainty could be caused for practitioners.

The noble Lord, Lord Carlile, mentioned, as he did in Committee, the Mental Capacity Act and the Scottish Act. Much water has flowed under the bridge over the past eight or nine years but the Government have decided to produce an amending Bill not a comprehensive new Bill covering all mental health legislation. Consequences flow from that. One is that it is not easy to simply graft the principles that have been suggested on to the existing 1983 Act. I accept that the noble Earl, Lord Howe, and his fellow proposers have made every effort to respond to the points that I made in Committee two or three weeks ago. Their amendment would require all those discharging any function under the Act to have regard to each of the three principles and then exercise the function in the least restrictive manner—but even those principles, when placed in legislation, would raise some issues. The current Act makes specific and detailed provision for a multitude of different situations. Principles may already be given specific effect in the relevant part of the Act or may not in fact be relevant to every situation or, as my noble friend Lord Turnberg said, may conflict with each other or with the specific provisions of the Act. What weight is the decision-maker to give to the different criteria in that case? Is there a potential for him to be challenged because he has, for example, not complied with the patient’s wishes? Will patients who would otherwise be detained for treatment be released with consequent risk to public safety and their own because the decision maker thinks that the patient’s wishes and the need for minimum restriction must take precedence over the risk of harm to themselves and others?

4 pm

The 1983 Act already embodies the principles that are proposed in the amendment. Part 2 of the Act provides the basic criteria for detention for civil patients. For example, to detain someone under Part 2 of the Act specific criteria must be met to ensure that hospital treatment under compulsion is both appropriate and necessary. First, the patient must have been examined by two medical doctors who must conclude that the patient is suffering from a mental disorder, and that that disorder requires treatment in hospital. But this is not all. The medical practitioners

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must conclude that the mental disorder is such that the patient is at risk of harm to themselves or to others. They must be able to determine also whether other methods of dealing with the patient are available, and, if so, must be able to explain why they are not appropriate. In addition to these strict criteria, it is a requirement of the process of detention that the patient participates in the process and that an attempt is made to ascertain their wishes and feelings. These principles are embodied in Section 13, which requires the approved social worker to interview the patient. The approved social worker under Section 13 must also satisfy themselves that admission to hospital is, in all the circumstances of the case, the most appropriate way of providing the care and medical treatment that the patient needs—and this embodies the principle of using the minimum restriction.

The need to allow the patient to make clear his views and to take account of them when considering admission is already catered for in the 1983 Act. What would be the effect of adding a requirement to consider separately the principles set out in the amendment? Does it mean that if the patient does not want to be detained he should not be, or should the fact that the statutory criteria are met outweigh the patient’s wishes and the minimum restriction principle? The answer is unclear.

In Committee, noble Lords expressed concern about the provisions for supervised community treatment, and amendments have been tabled to tighten the criteria for being placed on a community treatment order. This amendment requires the function to be carried out in a manner that involves minimum restriction necessary. It is at least arguable that supervised community treatment is less restrictive than detention in hospital. This amendment might cause confusion and uncertainty as to the use of supervised community treatment. It could also raise questions about the application of the specific criteria for supervised community treatment in light of the principle.

I refer to the remarks of my noble friend Lord Soley and the noble Lord, Lord Patel, on non-discrimination. The general laws on discrimination will apply to those who have functions under the Act. Many laws come under the discrimination banner; they are detailed and complicated and contain exceptions and qualifications. Practitioners are without question already subject to these laws. The amendment lists four laws, and states that people should have regard to the principles in those laws. Interestingly, none of those laws has explicit principles. The principles in those laws, as in the Mental Health Act 1983, are inherent in the provisions. Not all the provisions of the laws the amendment mentions will apply or have relevance to a person carrying out functions under the Mental Health Act. For instance, some of them relate to employment issues. Therefore, the amendment might cause confusion whether the practitioner should adhere to all the principles in each of those Acts, or only those that would normally apply.

We do not take issue with the amendment in principle but we are concerned about its practical

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effect and the confusion that it might cause. I have attempted to identify areas where that confusion might arise.

The noble Baroness, Lady Barker, and the noble Earl, Lord Howe, referred to discussions that took place. I want to respond to this debate as positively as possible and to meet noble Lords’ concerns. I recognise that they wish to see principles placed in the Bill. I suggest that that can be done in a way that will not cause the confusion that this amendment and the one tabled in Committee might cause. Therefore, I intend to introduce an amendment at Third Reading that will provide a requirement—I stress that it will be a requirement—based on Section 118 of the 1983 Act, which relates to the code of practice.

The amendment will require the Secretary of State and Welsh Ministers to include a statement of principles in their respective codes. I stress that it will be a requirement on the Secretary of State so to do. The amendment will also detail the key principles that the code will be expected to follow. I believe that that is a sensible way forward. It reflects the clear message that noble Lords and practitioners have given that they wish to see principles in the Bill. By requiring the Secretary of State to ensure that there are principles in the code of practice and to list in the Act the areas that the principles might cover will produce a satisfactory outcome which will not confuse but rather clarify the position. That outcome will acknowledge the point raised by the noble Earl, Lord Howe, right at the beginning on the importance of values.

Lord Carlile of Berriew: My Lords, I apologise for interrupting the noble Lord but I hope that he will further clarify the issues that I raised about certainty in the courts. Is it the noble Lord’s understanding that the legislative device—I use that word in a neutral sense—that he suggests will mean that courts reviewing decisions will regard the principles in the code of practice as having equivalent status to similar principles in the Act?

Lord Hunt of Kings Heath: My Lords, that is not what I am saying. The role of the code of practice is to guide practitioners in the implementation of the legislation. I do not believe that what I have suggested would in any way inhibit the clarity of the message that will need to go to practitioners. Putting the principles of the code in the Bill will meet the objectives expressed by noble Lords.

Earl Howe: My Lords, this has been an extremely good debate. I begin by thanking the Minister for his constructive approach to the powerful speeches made from all quarters of the House. My noble friend Lady Carnegy and the noble Lords, Lord Carlile and Lord Ramsbotham, expressed disappointment that the principles set out in the Committee amendment were not all carried over into the amendment before us.

I readily concede that today’s amendment represents a compromise. That is not what I originally sought but I am enough of a realist to know that you cannot get everything that you seek first time around. However, in accepting the Minister’s offer to look at a government

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amendment at Third Reading, I hope that he will consider all the headings in the Committee amendment, which are of great importance individually, I say again. He will recall that that amendment was based very closely on the Scottish legislation, where apparently there is no problem about possible conflict between the Act and the principles.

It is not appropriate for me to say more than that. I will, however, thank the Minister again for having looked at this issue so carefully. I reserve judgment about the government amendment until I have seen it. The point raised by the noble Lord, Lord Carlile, is extremely material in this context. However, from the Minister’s description, I think that the formula he suggested will at least meet one objective: the point made by the noble Lord, Lord Adebowale, who brought home to us the importance of trust in the system on the part of those on the receiving end of compulsory detention. I look forward to further discussions with the Minister between now and the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

House of Lords: Reform

4.13 pm

The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): My Lords, with the leave of the House, I shall repeat a Statement made earlier today by my right honourable friend the Leader of the other place. The Statement is as follows:

“With permission, Mr Speaker, I should like to make a Statement on the procedure for the free votes on the composition of the House of Lords. In my Statement to the House on 7 February, I set out the Government’s proposal for using an alternative vote ballot to establish the House’s preferences on composition. I told the House that I believe that this would be the most effective way of the House being able to come to a decision on this issue, and outlined the difficulties posed in the use of our traditional Division system in eliciting multiple preferences. I took the view, and I still do, that this new system had many advantages.“However, it became evident during the exchanges in the House on my 7 February Statement, and the next day during Business Questions, that my own enthusiasm for the new system is not as widely shared as I had anticipated”.

Noble Lords: Oh!

Lord Falconer of Thoroton: My Lords, the Statement continues:

“Indeed, there was vocal opposition to it from many honourable and right honourable Members on both sides. As Leader of the House, I have listened carefully to these views and reflected on them over the recess. I do not want discussions about procedure to overshadow the important substantive debate we will have on the future of the

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House of Lords itself. I think we all agree that we must not let process get in the way of a reform to which all parties are committed. “I therefore wish to tell the House that we shall not be proceeding with the alternative vote proposal. Instead we shall revert for all votes to the traditional Division system. This will mean that there will be a series of resolutions put to the House for separate votes at the close of the promised two-day debate on Lords reform. “We will consult the usual channels and interested Members on the exact form of the resolutions and their order.“I hope that what I have said is for the convenience of the House”.

My Lords, that concludes the Statement made by the Leader of another place. The House will appreciate that this Statement was delivered by my right honourable friend the Leader of another place about the voting procedure for the other place. It has implications for voting in your Lordships’ House about which, with the leave of the House, I will say a few words.

We intended that your Lordships’ House should have the opportunity to decide whether to use any new voting method adopted by the other place. I refer to paragraph 11.7 of the White Paper. As the alternative vote proposal is not now being pursued in the other place, we do not intend to propose it for your Lordships’ House. The usual channels will discuss how to conduct the votes on the options, using the normal Division Lobby method of voting.

4.15 pm

Lord Strathclyde: My Lords, I thank the noble and learned Lord for repeating this most unusual, but equally perfectly welcome, Statement and for confirming that this House will not have proportional representation-style STV voting of the kind so championed by the Liberal Democrats from time to time.

I am sure that the noble and learned Lord will recall that only two parliamentary days ago, shortly before the short recess, he made a Statement on reform of your Lordships’ House. He then waxed lyrical about his plan for preferential voting. He said it was,

“specifically designed to enable those voting ... to come to a decision on this issue”.

He attacked the traditional way of voting, saying it was,

“no good—it does not work”.—[Official Report, 7/2/07; col. 713.]

Now, here he is popping up again, bold as brass, advocating the very system he told us only a couple of days ago was no good.

I hope that the noble and learned Lord will say what happened in the intervening period. It is all very well having a change of heart, and that is welcome, but what happened? Was it a change of heart from No. 10 or, indeed, from No. 11? After all, he did not answer when I asked him last time whether the Chancellor was fully behind the 50:50 plan. Well, is

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he, my Lords? Why does not the noble and learned Lord tell us and make our day?

The noble and learned Lord has either come out on the wrong side of an internal row in government, or he and Mr Straw have been mugged by the parliamentary Labour Party. Which is it? The whole House is agog to learn why what he swore blind so recently was right he today tells us is not. Can he promise the House that he will not be recommending preferential voting again on Wednesday?

When I had the temerity to suggest that not everything in his plans for the House was right and that we should take some time to think things through, the noble and learned Lord did more ho-hoing than a Santa Claus in a shopping centre in December. “Everything’s worked out”, he said. “It’s time to press on. We’ve looked at everything”. What a pity for him that he did not see the garden rake he was about to tread on over the recess. We should now take that opportunity to reflect carefully on the other details of his predictably poorly received 50:50 plan. I expect that before this process is over he will have changed his mind once again; but, like him, I look forward to the debates that we will be having in a few weeks’ time.

4.18 pm

Lord McNally: My Lords, it is fair to say that two weeks ago the noble and learned Lord the Lord Chancellor and I had some fun at the expense of the Leader of the Conservative Party, when I compared him to Blackadder in the First World War. When I tried to sum up my own feelings on the performance of the Lord Chancellor, I have to say that the Charge of the Light Brigade came most immediately to mind. I feel a little like one of the cavalrymen sent into the valley. I was so impressed with that image that I looked up an assessment of the Charge of the Light Brigade. Under the heading “What went wrong?”, it said:

“In a nutshell, a commander failing to take account of the fact that he was on a hill and could see what was going on and his troops could not!”.

Although I am willing again to join any charge that Lord Cardigan and Lord Lucan—or is it the noble and learned Lord the Lord Chancellor and Mr Straw?—call for, I get the impression that they are conducting a battle at the bottom of a hill where two maps join. I hope that the noble and learned Lord realises that, whenever you make a Statement such as that, you should look at who is smiling to find out whether one side or the other has won. I am afraid that the forces of reaction will take the most pleasure from this retreat.

It is important that we get a clear and settled view from the House of Commons. Can the noble and learned Lord confirm that the House of Commons will have a debate and make its decision before this House does so? That will inform the debate here. I support what he said about having the same voting system. It is essential that the same system is used at both ends. Therefore, although I regret the retreat from the alternative voting procedure, I support the fact that we shall have exactly the same system.

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Finally, can the noble and learned Lord confirm that the Government are still committed to carrying forward reform of this House? As he said, all three parties were committed to that at the last general election. Will he also make every effort to ensure that reform is carried through with some sense of the dignity of this House, rather than the kind of shambles that he has had to report to the House today?

4.22 pm

Lord Falconer of Thoroton: My Lords, it is a great honour to be described as Santa Claus by the noble Lord, Lord Strathclyde. It is hard to imagine anyone who looks more like Santa Claus than the noble Lord, Lord Strathclyde, particularly when you see him at the Prorogation ceremony. My wife and children will be delighted that I was described as a member of the Light Brigade. I have not been described as that for some time.

We have eaten humble pie in relation to this matter—but not much humble pie in my case, being a member of the Light Brigade. We searched for consensus in the House of Commons and found it rather more quickly than we thought we would—namely, no to the AV procedure—and we responded to it straightaway. I do not think that any further explanation is required: as is obvious, we are a listening Government.

We are very keen that Lords reform be properly debated. I thoroughly agree with what my right honourable friend the Leader of the other place says: let us focus on the substantive issue, not the process. We are committed to allowing a free vote to take place. In relation to the question raised by the noble Lord, Lord McNally, the debate in the Commons will take place before the debate in the Lords. As the noble Lord, Lord Strathclyde, said on the previous occasion, everyone will have an opportunity to discuss it. Let us discuss the merits of the issue rather than the detail around it.

4.23 pm

Lord Tebbit: My Lords, does the noble and learned Lord not agree that the Charge of the Light Brigade analogy was a little unfair? In this case, it was not the general who was on the hill and could see and not the troops; it was the troops who were on the hill and could see and it was the general who could not see until the troops pointed it out.

Lord Falconer of Thoroton: My Lords, the very same thought was going through my mind at the time but I did not dare enunciate it.

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