31.This Private Member’s Bill was brought from the House of Commons on 9 July, together with a Delegated Powers Memorandum from the Department of Health and Social Care.8 The Bill’s purpose is to increase the oversight and management of the use of force in mental health units.
32.The Bill contains five regulation-making powers. Of those, we wish to draw the attention of the House to the power contained in clause 6(3).
33.Clause 6 requires the responsible person for each mental health unit to keep records of any use of force by staff save where the use of force is “negligible”. Clause 6(3) states that whether the use of force is negligible is to be determined in accordance with guidance published by the Secretary of State. Although described as guidance, it is not the responsible person who decides what amounts to negligible force, having had regard to guidance issued by the Secretary of State.9 Rather, it is the Secretary of State’s guidance itself which will determine what is meant by the use of negligible force. The guidance will therefore add an important gloss to the meaning of the Act. It is, however, not subject to any parliamentary procedure.
34.The Delegated Powers Memorandum (paragraph 8) justifies the lack of any parliamentary procedure on the grounds that:
35.We do not find any of these reasons sufficient to justify the absence of a parliamentary procedure for the guidance.
(a)Consultation is an elementary requirement when testing the merits of new policy. It is an addition to, not a substitute for, parliamentary consideration. This is particularly so given the sensitive nature of the subject-matter of this Bill.
(b)Naturally the Secretary of State must publish the guidance. The guidance could not do its job if it remained unpublished. But mere publication of guidance is not a reason for denying Parliament a role in scrutinising it.
(c)The guidance may indeed contain detailed and practical matters. But the point about clause 6(3) is that the effect of the guidance is to determine whether the use of force is negligible. It is not a case of the mental health unit making the determination having regard to the guidance. The determinative nature of the guidance will affect the legal obligations of responsible persons in mental health units. Because the guidance affects legal obligations we would normally expect it to be contained in legislation, whether primary or subordinate.
(d)The Department mentions sections 23 and 24 of the Health and Social Care Act 2008, under which there is no parliamentary procedure in relation to guidance issued by the CQC. But section 25 of the 2008 Act makes clear that the guidance is merely to be “taken into account” in certain contexts. Its purpose is not, as with clause 6(3), to determine an important matter of law.
36.Under clause 6(3), the Secretary of State’s guidance will determine whether the use of force is negligible and thus affect the legal obligations of responsible persons in mental health units. The subject-matter of the guidance will be sensitive, and demands parliamentary scrutiny. In our view such matter should be contained in subordinate legislation made by statutory instrument, with the negative procedure offering an appropriate level of parliamentary scrutiny.
8 Department of Health and Social Care, Mental Health Units (Use of Force) Bill Delegated Powers Memorandum
9 Clause 6(4) makes this clear by applying clause 11(3) to (6) but, crucially, not clause 11(2) to guidance published under clause 6.