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What is sought in a proportionate way is that where there is a possibility, however small, that the proposed work will cause an adverse environmental effect, the developer must consult the relevant organisation. A good safeguard exists in the system. As I have said, nothing is changed by the order. On the consultation, I was tempting fate the moment I mentioned Natural England, thus inviting the question from the noble Lord, Lord Marland. Alas, Natural England did not respond to the consultation. In my previous role as a Minister in Defra, during our six-month marathon on the Maritime and Coastal Access Bill, we had a very warm but vigorous relationship with Natural England. Given the fact that it responds on many issues, I could only assume that its non-response means that it is content.

The organisations that responded were the IPC, Electricity North West Limited, CE Electric UK, EDF Energy Networks, Central Networks, National Grid and Scottish Power Energy. Clearly, those which responded were from the IPC and the energy sector.

Lord Marland: I thank the Minister. The Natural England wound is clearly self-inflicted, and we will overlook it. However, my question was about rural organisations in general. A flurry of notes from behind the Minister would be very helpful.

Lord Hunt of Kings Heath: I was just about to come on to the organisations that we have consulted. They include the Local Government Association, which can be taken to include local authorities that cover rural areas. I mentioned Natural England. We also have the Countryside Commission for Wales, the National Association for Areas of Outstanding Natural Beauty, the UK Association of National Parks Authorities and the Campaign for National Parks. If the noble Lord is saying that there are other rural interests that we might have consulted, and I suspect he is, I am happy to take that on board for future policy within the department.

Lord Marland: I am happy with that and thank the Minister for the full explanation.

Lord Hunt of Kings Heath: I come to the question about why we are doing this in the way that we are. I say to the noble Lord, Lord Teverson, that it was always our intention that the exemptions under the Electricity Act should transfer to the IPC regime for electricity lines at 132 kilovolts and above. That was

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complicated by the Planning Act 2008 being passed before a final decision had been taken on the scope of the exemptions following the 2006 energy review. I agree with the substance of the noble Lord's point. It would have been better if we could have done it together, but it proved impossible in practice.

As to what the lines look like, they could be on wooden poles at just above the level that comes into the IPC process. Higher-voltage lines are likely to be on metal towers. Let me make it clear that this is not a way to open the door to new towers under the proposed exemption order. They would have to go through the full system.

I hope that I have responded to the points raised. I commend the order to the Committee.

Motion agreed.

National Assembly for Wales (Legislative Competence) (Health and Health Services and Social Welfare) Order 2010

National Assembly for Wales (Legislative Competence) (Health and Health Services and Social Welfare) Order 2010
4th Report from the Joint Committee on Statutory Instruments

Considered in Grand Committee

4.38 pm

Moved by Lord Davies of Oldham

Lord Davies of Oldham: I beg to move that the Committee considers the draft National Assembly for Wales (Legislative Competence) (Health and Health Services and Social Welfare) Order 2010. The order has been approved by the National Assembly for Wales and was approved by the other place last week.

The order is commonly known as the mental health order and is being brought forward by Jonathan Morgan, the Conservative Assembly Member for Cardiff North. As well as the Welsh Assembly Government, Back-Bench Assembly Members and Assembly committees are able to bring forward proposed legislative competence orders. The Government are committed to progressing Assembly Member LCOs that have the support of the Welsh Assembly Government. This LCO has the full support of Welsh Ministers.

I am sure that the Committee will welcome the ability of Assembly Members to bring forward proposals for devolving legislative competence in this way. It demonstrates the flexibility of the system that we put in place under the Government of Wales Act 2006. The draft LCO before us today devolves legislative competence in relation to mental health. Specifically, it inserts two new matters into Schedule 5 to the Government of Wales Act 2006: matter 9.2 in Field 9, the health and health services field, and matter 15.10 in Field 15, the social welfare field. These matters will enable the Assembly to legislate in relation to the assessment of mental health, the treatment of mental disorder and social care services connected to mental

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health. I want to be absolutely clear that competence does not extend to people subject to, or likely to be subject to, compulsory detention under the Mental Health Act 1983, except in relation to independent advocacy. Nor does it allow the Assembly to amend the provisions relating to compulsory treatment, or the definition of mental disorder contained in the 1983 Act.

The devolution of competence in relation to mental health has cross-party support in the National Assembly. The then First Minister, the right honourable Rhodri Morgan, announced the intention to bring forward legislation using the competence conferred via this LCO when he set out the Welsh Assembly Government's legislative programme for 2009-10 last July. The Assembly Government's strategy for mental health services in Wales was published in 2001. That strategy's implementation is supported by a national service framework, which sets standards for mental health services in Wales. A key aim of the framework is to drive up the quality of services and ensure that they are delivered consistently and comprehensively across Wales. The Assembly Government believe that the right to early assessment, and extending rights of access to advocacy services, are consistent with the framework. They wish in particular to impose a specific, comprehensive duty on service providers in respect of the assessment and treatment of mental disorders so that fewer individuals become subject to compulsion. Welsh Ministers also wish to provide wide-ranging and comprehensive advocacy services to those suffering from a mental disorder.

Like all LCOs, the draft order before us today was subject to pre-legislative scrutiny by the House's Constitution Committee, by the Welsh Affairs Committee and the Committee of the National Assembly.

Lord Jones: My Lords, I am grateful to the Minister and I support this measure. Briefly, the Personal Care at Home Bill, as applied to England today-

The Deputy Chairman of Committees: My Lords, I have to put the Question before the debate starts.

Lord Davies of Oldham: I apologise to the Deputy Chairman and to my noble friend. I should have given way, but in due course I will listen to the points he makes and am confident that I will be able to respond to them.

The draft order was subject to pre-legislative scrutiny. The Government are grateful to the committees for their thorough scrutiny and for their helpful reports. This House's Constitution Committee considers that the LCOs raise no issues of constitutional principle. Both the Welsh Affairs Committee and the National Assembly Committee requested that the Explanatory Memorandum makes clear that those with a current or previous diagnosis of mental disorder are included within the scope of matter 9.2, as well as those without diagnosis. The Explanatory Memorandum confirms that position at paragraph 7.14.

The Welsh Affairs Committee, in its recommendations, correctly noted that it is not the intention to disapply in Wales the right to an independent mental health advocate for those subject to compulsory powers under

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the Mental Health Act 1983. The committee suggested that the drafting of the LCO should be amended to make that clear. The drafting has been carefully reconsidered by Jonathan Morgan, the Welsh Assembly Government and the United Kingdom Government in the light of the committee's suggestion. It was decided on balance not to modify the LCO to exclude from competence advocacy for those subject to the 1983 Act. Excluding competence in relation to the Act would limit the National Assembly's flexibility to improve further and to develop the advocacy scheme in Wales, and the Explanatory Memorandum has been amended at paragraph 7.20 to make that clearer. I believe that the draft LCO sets out a clear case for the powers.

I hope that noble Lords will agree that it is appropriate for legislative competency in this very important area to be devolved to the National Assembly. I also hope that the Committee will work in the spirit of co-operation that all parties concerned have shared while engaged in negotiations regarding this LCO. The process has worked in producing an LCO that meets the objectives of Jonathan Morgan, the Assembly Member proposing the order, and is also supported by both the UK and Welsh Assembly Governments. Accordingly, I commend the order to the Committee.

4.45 pm

The Deputy Chairman of Committees: The noble Lord, Lord Jones, may now ask as many questions as he likes, unless the noble Lord, Lord Glentoran, wishes to start.

Lord Glentoran: My Lords, I thank the Minister for his clear presentation of the order. It is very interesting on several fronts. In particular, it is the first statutory instrument to have been brought to noble Lords from the Back Benches of the Welsh Assembly. It was drafted by Mr Jonathan Morgan, who, I am delighted to say, is a fellow Conservative. He should be congratulated for achieving that.

As the noble Lord said, it has also been supported and approved by the Welsh Assembly Government. Without such support, Back-Bench proposals do not stand much chance of making progress. Furthermore-this is another first, at least for as long as I have been dealing with orders-it is clear. It is understandable, comparatively simple in its objectives and is a lesson to all those who will be drafting future orders. Again, I congratulate Jonathan Morgan and his team.

The order is about mental health. I declare an interest; my wife has been a bipolar depressive most of her life, and still is. We have been in and out of various hospitals, meeting psychiatrists, and so know a little about the subject. Believe it or not, one in four of us is likely at some stage in our life to suffer from some type of mental illness. That is a dramatic figure: 25 per cent of the population. From my own experience, the attention given to people with mental health problems by the National Health Service leaves a lot to be desired.

Let us hope that this statutory instrument will allow much more efficient access and assessment. The noble Lord said that it was not compulsory to be tested, which is as it should be. I know that he said that, because I read it. This does not make it compulsory

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to test a person, other than under the law where, at a disastrous stage, a sick person sadly may be locked up and sectioned.

There is one further important matter. This will allow early intervention, assuming that there are friends and carers around. I have no doubt, from my experiences, about the importance of early intervention. I am told that it is now possible sometimes to diagnose Alzheimer's in fairly young people who have no obvious signs of it, and that drugs, while they cannot repair the damage that has been done, can prevent further damage. I do not know the names of the drugs, but I have been told on good authority that they are available. Overall, I strongly support the instrument.

Lord Roberts of Llandudno: My Lords, I add the support of those on the Liberal Democrat Benches for the order. As we have already been told, the Assembly Government published their strategy for mental health services in 2001. This set the standards for mental health services in Wales, and sought to ensure that the whole of Wales benefited from a high standard of mental health services.

This legislative competence order aims to provide the best assessment and treatment for those who for one reason or another are encountering mental health problems. We know that the important question of advocacy is also part of this order, as is the extension of social care services so that mental health is included. It seeks to make up for the deficiencies of the Mental Health Act 1983.

At a time of added stress because of job losses, house repossessions and a general feeling of helplessness, it is vital to provide the widest possible care. In parts of Wales we have more than our fair share of the problems that other parts of the UK are seeing. I know that in the valleys of south Wales, Merthyr Tydfil and so on, there is a constant battle to secure jobs and homes. Such things lead to tremendous stress and instability. For instance, it is reported that unemployment doubles the risk of psychological problems, and it is forecast that 1.5 million more people in the UK will have mental health problems by 2011. One of the largest charities dealing with anxiety disorders, Anxiety UK, has seen the doubling of calls to its helpline because of the economic downturn. If the legislative competence order helps to give extra muscle to mental health provision in Wales it will be worth while.

The order also covers a grey area in health provision. As general health services have devolved in Wales the question of mental health services still has to be satisfactorily resolved. There is more to be done, but we on these Benches welcome the order as a step in the right direction.

Lord Jones: My Lords, I support the measure. It is an important legislative competence order and I wish it well in the Principality. Can my noble friend say whether there will be a personal care at home measure for Wales? Will the measure being debated in your Lordships' House today apply to Wales as well? If not, is there any prospect of such a valuable measure being proposed in Cardiff by the Welsh Assembly? At first glance the order we are now considering appears to have relevance to the Personal Care at Home Bill.

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Lord Roberts of Conwy: My first pleasant task is to echo the compliments to Jonathan Morgan, a Conservative Member of the National Assembly for Wales, on being the first private Member to secure a legislative competence order.

The subject matter, as we have heard, is impeccable. The Explanatory Memorandum states that the order deals with legal competence in respect of an individual's mental health, the treatment of an individual who is mentally disordered and advocacy services in respect of persons who are or may be mentally disordered. People in these categories are often singularly helpless and in serious need of help. I had some experience of this in my period as a Minister with responsibility for the NHS in Wales in the early 1980s when I paid numerous visits to mental hospitals.

One of my proudest achievements at that time was to initiate a 10-year strategy to get what were then known as mentally handicapped people out into the community. They are now known as people with learning difficulties. We were ahead of England in that but England soon followed our example and the strategy was eventually extended to other groups of people who could with benefit live in the community rather than in hospital surroundings.

This order has taken more than two years from its announcement to reach this stage and that has resulted in some complaints of excessive longevity of process. However, its history is detailed in table 1 of the Welsh Affairs Committee's report, titled Review ofthe LCO Process, where it appears that the order took 83 weeks to reach the committee. It reported on it 11 sitting weeks later and considered it further for 13 sitting weeks. That is about a quarter of the time taken before it reached the committee.

The committee has examined the histories of a number of LCOs. It concluded at paragraph 21 on page 15:

"For those LCOs which have taken the longest time to proceed ... the main factor by a significant margin is the time taken up by negotiations between the UK and Welsh Assembly Governments to agree on a text".

The Government have yet to respond to that review document, so perhaps it is only fair that we should suspend judgment.

In the mean time, it is only fair to all concerned to note that there have been some fundamental changes in the nature of this order following close examination by a Committee of the National Assembly and pre-legislative scrutiny by the Welsh Affairs Committee, as the Minister described. They are all explained in the Explanatory Memorandum accompanying the order, including the relationship between the order and the all important Mental Health Act 1983, which already provides a framework for assessment and treatment where these are compulsory for patients. The Mental Health Act 2007 also provides advocates in certain circumstances, and again the interrelationship between this order and that legislation has to be complementary. Therefore, a great deal has been achieved and the time taken is probably fully justified. Mr Jonathan Morgan may hold his head up high when this order completes its progress through Parliament.

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I hope that I may be allowed a further minute or two of your Lordships' time to draw attention to a concern which I share with the Welsh Affairs Committee and our own Constitution Committee, and which is reflected in paragraphs 96 and 97 of the Review ofthe LCO Process, to which I referred earlier. I draw attention to these points because we have dealt with three Welsh orders in the past few days that are very relevant to these paragraphs. To ensure that the Minister is personally aware of the concerns, I shall read paragraphs 96 and 97 on pages 37 and 38 of the Welsh Affairs Committee's report. The Minister is probably very familiar with them, but I am sure that he will not object to being reminded of their contents. Paragraph 96 runs as follows:

"We agree with the Lords Constitution Committee that 'clarity and transparency in the law are elemental to the core constitutional principle of the rule of law'. The developing complexity of the law in Wales therefore gives us cause for concern. This situation arises not only from the legal complexity of certain individual instruments, such as the Environment LCO-

we dealt with that last week-

Paragraph 97 states:

"A difficulty now exists for legislators, ministers and civil servants, experts and most particularly the general public, in establishing the precise state of the law in Wales. In its report on the Environment LCO, the Lords Constitution Committee recommends the creation of 'user-friendly explanations of the Assembly's evolving legislative competence, both in the case of individual LCOs and, on a regular basis, of Schedule 5 as a whole' to address this difficulty. We agree that there is more work to be done to establish a comprehensive and accessible 'Welsh statute book' and consider that this should be combined with a more straightforward approach to the drafting of proposed Orders and Explanatory Memoranda on the part of the Wales Office and Welsh Assembly Government".

I have not commented on the individual points. Noble Lords will realise that they are very important. I hope that the Government will deal fully with them in their response to this important report.

5 pm

Lord Davies of Oldham: My Lords, I am grateful to all noble Lords who have contributed to the debate, and for the constructive way in which the order has been approached. All noble Lords followed the perspective identified by the noble Lord, Lord Glentoran, when he emphasised the importance of mental health, the high incidence of mental illness and the problems of providing sufficient resources and effective administration to cope with mental health needs that are extensive in our community and which, as the noble Lord, Lord Roberts of Llandudno, identified, are likely to be exacerbated by a recession in which people will face adverse economic circumstances.

I am grateful to the noble Lord, Lord Glentoran, for putting the issue in perspective. He is right that the order does not permit what he referred to as sectioning, or any compulsory dimension to the treatment of those suffering from mental health problems. The order does not consider that part of the law for the best of reasons, namely that these are substantive issues on which a great deal of work must be done.

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The noble Lord will know about the extensive debates on these matters that we have in the House from time to time. Of course, we all take note of the fact that there are improvements on the horizon. He is right to identify that the issue of Alzheimer's must be addressed. We all know about the calamities that are visited on individuals and their families through the illness of Alzheimer's. To what extent breakthroughs have been occasioned is a matter on which I am not briefed to comment, but I am entirely in sympathy with the noble Lord when he emphasises it, and identifies the importance of mental health for all of us, and the necessity for us to concentrate on it. We are grateful that the order has come forward to advance the position in Wales.

The noble Lord, Lord Roberts of Llandudno, went on to identify why the problem of mental health is not likely to decrease in the immediate future. There are great challenges ahead, to say nothing of the fact that all of us appreciate that the concept of mental health, and how healthy people are, is always elusive for those of us who have never been in the state where we have gone to the health authorities for help. However, we are all conscious of the fact that mood changes and challenges that are presented in our complex and demanding lives across the whole of society are such that mental health will always figure as a major issue on which we must focus. There are potentially almost limitless demands on resources, and we are conscious of the fact that in the last century we probably made less progress in this area than in most other aspects of healthcare. We have ground to make up, and this is an exceedingly constructive measure.

I reassure my noble friend Lord Jones that Welsh Ministers have no current plans to bring forward a personal care measure, but they will be able to make regulations similar to those in England in relation to personal care, if they wish. The Assembly is considering a measure relating to the provision of social care services and the need for a uniform charging regime for such services. I reassure my noble friend that there is nothing in the Bill currently before the House that creates any difficulty in Wales.

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