To ask the Secretary of State for Foreign and Commonwealth Affairs if she will make a statement on the policy of Her Majesty’s Government towards the situation in the Gaza strip.

We are deeply concerned about the recent violence and the humanitarian situation in the Gaza strip. The violence we have seen has been completely unacceptable, with summary executions, attacks against hospitals and the cruel treatment of captives. Once again, extremists carrying guns have prevented progress, against the wishes of the majority, who seek a peaceful two-state solution.

Our immediate concern is the humanitarian situation in Gaza. We fully support the statement of the Quartet and efforts to meet the humanitarian needs of the Palestinians. In that regard, we welcome Israel’s decision to facilitate humanitarian access and ensure the provision of basic services. We continue to call on all parties to respect the human rights of those in Gaza and ensure the safety and security of international workers.

It is also important, however, that extremists are not allowed to derail the political process. The international community is united in its desire to continue moving the peace process forward. The Foreign Secretary spoke to President Abbas on 14 June, as well as US Secretary Rice and the Egyptian, Omani and Qatari Foreign Ministers. The Foreign Secretary is discussing the situation with her European counterparts at the General Affairs and External Relations Council in Luxembourg today, where they will also discuss the situation with the Israeli Foreign Minister, Tzipi Livni. Prime Minister Olmert is currently in Washington and we look forward to discussions at the UN Security Council on Wednesday.

We welcome the Arab League’s engagement at its meeting on Friday. The Arab world has a key role to play in supporting President Abbas’s efforts to restore order to the occupied Palestinian territories. We also welcome Egypt and Saudi Arabia’s efforts to promote dialogue.

The emergency Government, who were sworn in on 17 June, have our full support. We will continue to work with all those, including President Abbas, who are dedicated to achieving a peaceful resolution to the conflict. The emergency Prime Minister, Salam Fayyad, has said that his priorities are restoring security and improving the economic and humanitarian situation, and we share those goals.

I would like to reiterate the Government’s commitment to finding a solution that will result in a comprehensive and lasting peace, with two states, Palestine and Israel, living side by side in peace and security.

Our thoughts remain with Alan Johnston. We continue to call for his immediate release and welcome the efforts being taken towards that goal.

The refusal of the United States and Israeli Administrations to do a deal with the Fatah Palestinian Government led to the election of a Hamas Government. The refusal to have dealings with a legitimately elected Hamas Government—with all the repression and suffering in the Gaza strip and the Palestinian territories—led to the Hamas militant takeover in the Gaza strip, and the situation is so fragmented that even Hamas cannot secure the release of Alan Johnston. Will our Government, with their unique credentials for the road map, make it absolutely clear that the only way in which to achieve a settlement is to follow the wise words of the great Israeli Foreign Minister, Abba Eban, “You only make peace by talking to your enemies”?

I agree that there must be proper debate, but debate is sometimes extremely difficult for a nation when it involves a party that wants that nation’s eradication, which is precisely what Hamas has declared.

I have heard some very glib statements about the necessity to engage with a Government who have been democratically elected. Similar statements were made in the 1930s about the Nazi Government in Germany, and I think we must take those prior examples into account. We cannot assume that because we engage with a party, it will behave like a democratic party elsewhere and there will be civilised aims at the end of it. If that party wants to see the eradication of Israel, how can we discuss and debate with it meaningfully?

I agree with the former Foreign Secretary, my right hon. Friend the Member for Blackburn (Mr. Straw): until we see some sign that Hamas is moving towards a two-state dialogue, I do not see how we can hold meaningful discussions with its members.

Following five days of fighting between Fatah and the Hamas factions, by Thursday last week Hamas militia had seized control of the Gaza strip. That appears to have come as a surprise to the American and Israeli Governments, and to our own Government. Can the Minister explain why he thinks the seizure of power came about so quickly?

We welcome the Quartet’s prompt action in convening an urgent meeting on Saturday and giving its support to President Abbas, and that of the United States and the European Union in lifting the boycott on the Palestinian Authority and resuming the transfer of aid. However, it is clear that those are only the preliminary steps.

Given that before the latest violence 87 per cent. of the population of Gaza were living below the poverty line, what action do the Government believe can be taken to prevent the development of a humanitarian catastrophe in Gaza? How quickly will the EU and others be able to convey maximum aid and assistance to the new Palestinian Cabinet to stave off the risk of a breakdown in law and order on the west bank? The EU high representative said this morning that most of the EU funding would go to the west bank, but that some would go to Gaza. What form will the assistance to Gaza take, and is the Minister confident that we can prevent it from ending up in the pockets of Hamas?

What steps are being taken to prevent the violence from spreading to the west bank? Will the Minister assure us that there will be no weakening of our position on Hamas, and that it must meet the Quartet’s conditions? Has there been any indication that it will do so?

What assessment has the Minister made of any involvement on the part of Iran, which has openly supported Hamas? Does he believe that it will increase its involvement in Gaza and, if so, what is likely to be the reaction of our Government, EU Governments and the United States?

I think that this happened as quickly as it did because Hamas committed nothing less than a coup d’état. Those generally happen quickly, and this one was brutal. The sight on our television screens of people being summarily executed—being thrown from windows and buildings—merely reinforces the reports that we have heard. They point to a coup d’etat. It probably was planned, and some judge that Gaza is now an Islamic statelet that will be used as a safe zone from which to launch attacks elsewhere, if and when Hamas decides to do so. The situation is dangerous.

The hon. Gentleman is right to ask about the humanitarian situation in Gaza, because it is serious. The international community is looking into ways of ensuring that the money that was available under the temporary international mechanism gets into Gaza, but does not fall into the hands of Hamas. We are discussing with UNRWA—the United Nations Relief and Works Agency for Palestine Refugees in the Near East—and all others involved how best to secure the welfare of the 1.5 million people who live in Gaza, most of whom had nothing to do with this coup d’etat, which was performed by a political party that has its own agenda.

The hon. Gentleman asks whether there would be any backing away from our demands that Hamas stand by the three principles. No, there will be no backing away: we will demand that it stand by the three principles as the basis for future negotiations.

The hon. Gentleman asks about Iran. We are very worried about Iran. We see a strategy to fund Hezbollah in Lebanon, which also is in a fragile state. We also see the hand of Iran and Syria in Gaza. I have heard talk of civil wars in both those countries being a pincer movement in Tehran’s wider strategy. I hope that that is untrue, but we must take it seriously.

Three months ago, and after considerable effort, the Saudi Government managed to negotiate the national unity Government. Clearly, recent events tear that up. What can Saudi Arabia, Egypt and the other “Arab Quartet” nations, and other neighbouring countries, do to return to a position in which the Palestinians are united in one entity that, we hope, can then become a Palestinian state alongside Israel?

It is certainly important that the Arab League continues its work and that the Saudi and Egyptian authorities continue at every opportunity to try to influence events, and to influence reconciliation and discussion. They could have much more influence than us in this area. Therefore, I agree with my hon. Friend. The Egyptians, in particular, must be very worried about having a branch of the Muslim Brotherhood in control right on their border.

We all despair about the events in Gaza last week, which are merely the latest terrible twist in a depressing downward spiral in the occupied territories. We must be clear that the power struggle between Fatah and Hamas has been the cause of the bloodletting, but does the Minister accept that the desperate economic situation in the occupied territories, exacerbated by Israeli, American and European sanctions against the Palestinian Authority, is another of the root causes? Given that the formation of the national unity Government has resulted in little international return for Hamas or Fatah, does the Minister accept that the international community will have to find ways of ending the economic and political marginalisation of the political wing of Hamas if we are not simply to double the number of Palestinian problems and solve none?

The European Union, the United Kingdom and the international community have given more money to the Palestinian people over the past 12 months than ever before. That is important. We would like the customs revenues that the Israelis have collected to be disbursed to the Palestinian President Abbas so that they can be used to reconstruct its sadly depleted economy. I also hope that the Israelis can take the opportunity to remove some of the roadblocks at checkpoints, which are doing such terrible damage to the Palestinian economy. If, however, the hon. Gentleman is asking me to blame the west, Israel and everyone else for a Hamas coup d’etat, I am sorry, but I cannot do it.

indicated dissent.

I am very glad to see that the hon. Gentleman is not saying that; I have heard people say it, and some of them have done so from the Liberal Democrat Benches. I hope he will accept that we have very much in mind the humanitarian plight of the people not just in Gaza but in the west bank, and that concrete steps can be taken to alleviate that and to begin to break the ice in the negotiations between Israel and Mr. Abbas’s Government.

Is my hon. Friend aware of the attacks on Christians in Gaza, including the looting of the Rosary Sisters’ school and the Latin church? Does he believe that that is an indication of the non-negotiable ideology of hate that is Hamas?

My hon. Friend reminds us that situations such as this are not just a factional fight between two political parties; there is damaging and immense fallout throughout Palestinian society. We need to remind ourselves that people of all religions have lived alongside each other for a very long time. We see intolerance among those in Hamas, and I will not speak of them as though they were some genuine reflection of the spirit of the Palestinian people; they are a nasty bunch of sectarians and religious bigots who are taking the Palestinian people backwards, not forwards. I hope that they will bear it in mind that the world is watching them, and that the way in which they treat Christians in Gaza is a very important factor.

One person has been caught up in this problem in Gaza for three months now: the British BBC correspondent, Alan Johnston. In the light of changing events such as Hamas having taken over Gaza, will the Minister bring the House up to date on what efforts are being made to return Alan Johnston to the UK?

The hon. Gentleman is quite right to raise the issue of Alan Johnston. We have been trying hard to ensure that he is returned safely; indeed, we have been working with the Palestinian authorities and anyone else who will work with us to try to ensure his safe return. A disturbing report is just in regarding the Dagmoush clan, which these days calls itself something else. The Army of Islam is, I think, the latest term it is using, but basically it is guns for hire—thugs who have a nice sideline in kidnapping. According to the report, Hamas has given the Dagmoush clan an ultimatum to release Alan Johnston by the end of the day, or Hamas will use force to ensure his release. Hamas has stated that it will not allow the kidnap to drag on any further. This situation has to be handled with great delicacy. Hamas knows very well that delicate negotiations have been going on, and we hope that it is not using this as a publicity stunt to try to win favour with some elements in the west.

I agree with my hon. Friend that there was no justification for last week’s events in Gaza. He says that he has seen no evidence of any change in Hamas’s direction of travel, but has he seen the 10-point proposal from the national unity Government, including Hamas, that was published only two weeks ago, for a long-term ceasefire with Israel; and, if so, what is his response to it? He says that he wants the boycott to be lifted, and that it must be accompanied by an easing of checkpoints, and so on. I agree, but what will we do in practical terms at this week’s EU summit to say to Israel that those elements are essential prerequisites to a lasting peace? Moreover, is there a role for saying to Israel that if it wishes to have trade preferences for its products, it is about time it started allowing Palestinians to trade out of their own territory, and that there could be consequences for the EU-Israel association agreement in that regard?

My hon. Friend has tremendous knowledge of the area, and he makes a fair point. We have to make Israel understand that it has to do what it can to relieve the humanitarian crisis on the west bank and in Gaza and that it needs to lift the blockades where it feels able to do so, because they are having a dreadful effect. I do not want to discuss boycotts or trade preferences at the moment, because we should be discussing the immediate crisis and how we can try to alleviate it.

My hon. Friend mentions the national unity Government’s 10-point proposal. On many other occasions, not just in the middle east, I have seen that when such coalitions—fronts that have gathered together to try to make progress towards peace—find that they have to stick by proposals and do things that they find unpalatable, such as negotiating with the historic enemy, they start to come apart, unless they are very strong. Perhaps Hamas no longer wanted to be associated with those 10 points. Perhaps it felt that its credibility on the mythical Arab street was now under threat and it mounted the coup d’etat to show that it was different from Fatah and that its heart was not in the rapprochement with Israel. I cannot give my hon. Friend a reason why Hamas decided to rat on those principles and start killing people in Gaza and taking military control. He will have to find that out from Hamas: he certainly will not find it out from me, because I do not know the answer.

In common with others, the Scottish National party and Plaid Cymru completely condemn the unacceptable violence in the Gaza strip and on the west bank. I am gravely concerned by the message that the Minister just read out about Hamas bringing in a deadline for the release of Alan Johnston. Wednesday will the 100th day of his captivity and everybody would welcome his release, but given the violence of the past few days I have little faith that Hamas’s involvement is anything more than a media gimmick. I am very concerned about whether Mr. Johnston will be released unharmed. Will the Minister assure the House that behind the scenes everything is being done to ensure that he will be released unharmed as soon as possible?

Yes, I can certainly give the hon. Gentleman that assurance. We have tried every single avenue that we know of and worked ceaselessly to help all the authorities to secure Alan’s release.

I am sure that many hon. Members on both sides of the House would agree that the rise of Hamas in recent years has been a consequence of the situation in the middle east rather than the cause of it. One of the things that has made the tension and stresses in the occupied Palestinian territories worse over the past couple of years has been the Israeli decision to withhold customs and tax revenues. That money must be released, for reasons of natural justice and because it is urgently needed, although there might be no mechanism for getting it to where it can do most good. Most of the people in most need of the money are in the Gaza strip, so will my hon. Friend put more pressure on the Israelis to release the money and do everything he can to ensure that it gets where it is most needed?

My hon. Friend will know that $100 million has already been earmarked for release to President Abbas’s authority. I agree with my hon. Friend, and, indeed, we have long called for the money to be released. I am sure, however, that he will understand the concern about releasing it to Hamas, when it behaves as it does. There is great reticence to give it to an organisation that might find some way to pass it to suicide bombers or rocketeers, who then try to kill Israelis and their enemies in the Palestinian population.

Has not Hamas shown its true colours by turning with such violence on its fellow Palestinians? Does not that vindicate the refusal of the international community to treat with it? I strongly agree with the Minister of State’s calling on Israel not only to release funds due to the Palestinian Government, but to make some important move on easing the roadblocks. It is very damaging that Palestinians cannot move around the west bank. Does the Minister agree that it would be particularly symbolic and important if Mahmoud Abbas could show that the freedom of ordinary Palestinians is being increased in the west bank, just as a Hamas Administration are likely to be reducing personal freedoms in Gaza?

The right hon. and learned Gentleman is absolutely correct. Now is the moment for Israel to do those things and the time that President Abbas needs maximum support. Now is also the time for the men and women of the west bank to see that he can bring them real benefits, which is why Israel must step in to help immediately.

Does not the Minister recognise that some of the antecedence of last week’s tragedy in Gaza has its ancestry in the west’s refusal to provide sufficient funds directly to the Palestinian Authority, thus creating huge unemployment, poverty and misery? Does he also recognise that the independent former Information Minister, Mustafa Barghouti, has refused to serve in President Abbas’s new Government because he wants a democratic mandate of all Palestinians? Will the Minister thus encourage President Abbas to set in motion a process whereby Palestinian opinion can be genuinely reflected so that any Government who emerge have the support of the majority of Palestinian people?

My hon. Friend makes a fair point. There will have to be democratic elections at some stage, but I cannot imagine their taking place at the moment because as an observer, like him, of the television screen and reports from Gaza, it is hard for me to see how 1.5 million people in Gaza could vote in the present circumstances. I am sure that those kinds of discussions are taking place in Palestinian communities.

I certainly do not accept my hon. Friend’s premise that a coup d’etat by Hamas ultimately has its genesis in our actions, or those of the Quartet, the EU or anyone else. This terrible inter-factional fighting among Palestinians is a result of Hamas’s decision to mount a coup d’etat.

As has been said, the election of the Hamas Government was a result of the failure of the international community, especially Israel, to support the previous Fatah Government. Somewhat late in the day, the international community is rallying around the emergency Fatah Government, but support is needed. Will the Minister tell us specifically how much practical support the United Kingdom is prepared to give at this time of crisis to the emergency Government who have been established in Ramallah? A figure in round millions will do.

More than $600 million has been earmarked as support for the Palestinian people. Over the past 12 months or so, the United Kingdom will have given the best part of £70 million, which is a large sum. The hon. Gentleman says that there was a lack of support, but I doubt that very much. The Palestinian people have received huge support from not just this country, but most other countries that I know of. The dispute has been at the heart of many conflicts elsewhere. It is the one dispute that people quote at me wherever I go in the world. The world understands the centrality of solving the problem. There has not been a lack of support—certainly not financial support. The Administrations, whether they were formed by Fatah or anyone else, have been notorious for corruption. They have been inefficient and money has been filched away to bank accounts where it should never have gone. The Palestinian people have been ill served by their leaders in the past. One hopes that the crisis will focus everyone’s minds—especially, and most importantly, those of the Palestinian leaders led by President Abbas—on the fact that there must be transparency, openness and honesty and that the huge sums must be used properly for the betterment of the Palestinian people.

In such circumstances, is not blaming Israel a little like saying that a victim of domestic violence brought it on herself? Given the connections between Iran and Hamas, is it not about time that the international community used the legal powers available to it to indict the President of Iran on charges of incitement to genocide?

My right hon. Friend probably knows more about international law than I do, but I am not sure that we can do that—[Interruption.] She nods her head and says it can be done. I very much hope that Tehran realises that making the situation in Palestine and Lebanon boil is no way to bring peace to Iran’s own borders. This is a very tough neighbourhood as it is, without Iran causing such trouble. I am sure that there are elements inside Iran who understand that very well and who want to see peace in the middle east. They have to make themselves heard now, because Iran is a much more powerful player in the area than most European countries are. The Iranians have to play a genuine role—not one where they stand up and extol the virtues of peace, co-operation and harmony at the same time as they pass funds to Hezbollah, Hamas and other organisations so that they might kill and destroy any chance of peace.

Is it not high time that the international community recognised the course of conduct on which Iran has embarked, which the right hon. Member for Liverpool, Wavertree (Jane Kennedy) has just described, and united to send a strong message to Iran about the unacceptability of that conduct, bearing it in mind that, thus far, peaceful and diplomatic engagement with Iran on this and other issues has brought meagre results? Now is the time for a strong message to Iran.

Yes, I think it is time for a very strong message to Iran. I hope that Wednesday’s session of the Security Council, when it debates the middle east peace process, will bring some clarity and transparency about where the blame lies for the financing of these terrible events in the middle east and elsewhere. We could be talking about many other places where we know Iranian money plays a part in causing disruption and mayhem. That cannot be good for the future of the region or for the future of the world.

I am sure that my hon. Friend the Minister agrees that there will never be peace in that part of the world unless the underlying justice issues are dealt with. Will he say what the Government have done in the past few days to raise with Israel the problems of illegal settlements and the wall?

My hon. Friend is right. The illegal settlements and the path of the wall are causing great concern and hardship for people in the occupied territories. We have told Israel many times that, if it wants peace and neighbours that it can live with, it must sort out those injustices. The path of the barrier is still a matter on which Israel could act very easily. Many of the settlements are tiny, comprising fanatics who are armed to the teeth; they could be withdrawn to the west of the barrier. I am sure that such action would contribute significantly to easing the great concern and sense of injustice that Palestinians feel.

Obviously, there can be no justification for what Hamas has done in Gaza and how it has done it; nor does it further the Palestinian cause. However, the Minister will be aware that, in January, the Select Committee on International Development published a report on development in the occupied territories that showed that extreme poverty was getting worse. More importantly, we pointed out that the isolation of the Palestinian Authority and Hamas would lead to closer links with Iran, about which he now complains. Does he accept that it will not be possible to exclude Hamas from any part of any negotiation on the future of the Palestinian territories? If there is any sort of election in future, how will the Government deal with the situation if Hamas is elected? Why did the Government not respond to the Government of national unity, which was set up precisely to provide a means of contact with the Palestinian Authority without direct dealing with Hamas?

Order. We are back to the old habit of asking three or four supplementaries. There should be only one supplementary question.

I shall answer the first one, Mr. Speaker.

The right hon. Member for Gordon (Malcolm Bruce) is right: he accurately observes the link between poverty and lack of development on the one hand and Islamic extremism on the other. The corruption and the lack of will to invest in a viable economy on the part of previous Administrations in the occupied territories has come home to roost in a big way. As I have said a number of times from this Dispatch Box today, if the Israelis really want a neighbour with a viable economy, they have to start lifting the roadblocks that are such a hindrance to trade within the Palestinian territories.

To return to establishing the authority and independence of President Abbas’s new Government, the independent Prime Minister in the west bank and the independence of the Cabinet are in a difficult and possibly dangerous position. Will the Minister tell us what more, if anything, can be done by the UK or the international community to bolster and help establish the authority of that new independent force? Perhaps that could be done through more aid, as aid already seems to have bolstered it.

The international community’s expressions of support for President Abbas and his new Government have been great. The Hamas coup d’état has come as a shock to everyone, and they want to be sure that Hamas does not have the opportunity to try to repeat its military action in the west bank. I very much hope that everybody understands the need to get behind the Palestinian Authority and ensure that the new Government have the wherewithal to start giving people in the west bank some hope of a decent and viable future.

This whole incident of the past week has been one more disaster for the long-suffering Palestinian people. I hope that, at least in the west bank, they can now enjoy some amelioration in their position. Will the Minister find a way of getting two messages through to the Hamas regime in Gaza? One is that there is no substitute for accepting the Quartet’s three conditions, because that essentially amounts to accepting reality. The second is that we simply cannot accept a situation in which it goes on spending enormous sums of money on arms while expecting the whole international community to provide its people with food and medical and other essential services.

Those are two very blunt messages, but I think that they are pertinent ones, and there will be no backing off on the Quartet’s three principles by this Government. All too often, the huge amounts of aid money going into such areas somehow end up in the arms bazaar, and we have to make that point clear, too.

Does the Minister agree that although we hope and pray for the release of Alan Johnston, we do not forget that it is coming up to the anniversary of Corporal Shalit’s being taken hostage? We do not forget other hostages who have been taken by Hezbollah, and we call for the release of all of them. Hamas should take note if it does not want everyone to believe what it has now made clear—namely that it is, and always has been, a terrorist organisation, not a political party.

Yes, I agree. We should not forget that many of the present and most immediate problems go back to the crisis that was caused by the kidnapping that the hon. Gentleman mentioned, and the kidnapping of two soldiers on the Lebanese border.

What further action can the British Government take to encourage the United States, first, openly to fund the President and the Palestinians, and secondly to put pressure on Israel to release tax moneys and tackle the roadblock situation? Those are prerequisites to peace.

The United States is already the biggest funder of aid to the Palestinians. Perhaps it is not quite as big a funder as the combined EU, but it almost certainly provides the most aid of any individual state. Just a few nights ago, my right hon. Friend the Foreign Secretary spoke to Secretary Rice and urged her to accept that the United States must now get behind President Abbas unequivocally and give him the support that he requires. I am confident that that has been taken very seriously, and it will be interesting to hear what the United States says during the Security Council debate on Wednesday.

Although the one glimmer of light in this dreadful situation is the opportunity to create a new relationship between the Palestinian Authority, Israel and the Quartet countries, the Minister is surely right to warn Fatah against a repetition of the corruption that did it so much damage in Gaza in the past. Will he take the chance, too, to warn it against other activities such as the ill-judged adventure just 10 days ago by its military wing, which sought to seize another Israeli soldier in Gaza, this time by using the mechanism of a vehicle that had been decorated with TV insignia—an action condemned by the Palestinian journalists union? Will he tell Fatah that it is time for those adventures to come to an unequivocal end?

Yes. The hon. Gentleman makes a very important point. Now is the moment not only for the international community to come in behind President Abbas but for President Abbas to start making strong, serious and sometimes difficult decisions. That means that he must get hold of those factions within Fatah and ensure that they are not allowed to act in that renegade way, which risks, once again, escalating an already difficult situation.

How can the Minister reconcile his statement that the events of last week came as a shock to everyone with the statement by the United Nations representative Jan Egeland that the events of last week were both predicted and predictable?

I heard that statement, but I think that Jan Egeland talked very generally. The coup d’état, as I have called it, took everyone by surprise in its totality. Hamas has seized power, it has murdered its opponents in the most brutal fashion, and it has celebrated being entirely in control of Gaza. That is a traitorous act to the cause of the Palestinian people, and it will not benefit the notion of a viable Palestinian state. With hindsight, we can all say, “Yes, there were signs that it might happen, and there were elements and developments pointed in that direction.” However, I doubt if anyone—and the hon. Gentleman knows a great deal about the area and takes enormous interest in it—really believed that there was going to be a coup d’état that was as total in its effect as the one that we have seen in the past few days.

On a point of order, Mr. Speaker. I am grateful for the opportunity to raise the fact that, on 6 June in the House, I asked my right hon. Friend the Leader of the House whether we could have a ministerial statement if the Government changed the rules for restraining young people in secure training centres. He was very helpful but, last week, the Government introduced a statutory instrument that proposed wide-ranging changes without making a statement. Is it sensible, Mr. Speaker, or in order for the Ministry of Justice to make wide-ranging proposals that affect many individuals on the rules for restraining young people in secure training centres without making a statement when one was clearly requested in the House?

Further to that point of order, Mr. Speaker. You will recall that my right hon. Friend the Leader of the House gave an undertaking that he would raise the matter with colleagues in the Ministry of Justice. He, in fact, did so, and he is concerned about the situation described by my hon. Friend the Member for Northampton, North (Ms Keeble). He intends to pursue the matter further with colleagues in the Ministry of Justice.

I am glad that the Leader of the House will pursue the matter on behalf of the hon. Member for Northampton, North (Ms Keeble). Ministers should be aware that Back Benchers have constituencies to look after, and raise serious matters on the Floor of the House as part of the democratic system. Ministers should take due heed of requests from hon. Members, and I certainly hope that a statement is made, at least belatedly, that will assist the hon. Lady. Ministers should take on board the fact that it is not good practice to leave hon. Members in a situation in which they do not receive statements from Ministers. After all, they have big Departments and plenty of people around them who can assist them in making statements in the House.

I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

International Tribunals (Sierra Leone) Act 2007

Digital Switchover (Disclosure of Information) Act 2007

I beg to move,

That the Order of 16th April 2007 (Mental Health Bill [Lords] (Programme)) be varied as follows—

That the Order of 16th April 2007 (Mental Health Bill [Lords] (Programme)) be varied as follows—

1. Paragraphs 4 and 5 of the Order shall be omitted.

2. Proceedings on consideration and Third Reading shall be concluded in two days.

3. Proceedings on consideration shall be taken on each of those days as shown in the following Table and in the order so shown.

4. Each part of the proceedings shall (so far as not previously concluded) be brought to a conclusion at the time specified in relation to it in the second column of the Table.

5. Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at 10.00 p.m. on the second day.

I do not propose to press the programme motion to a Division because the Government have given two full days on Report, which is exceedingly helpful. There are many new amendments, and many new subjects are being raised so, rather than detain the House on a programme motion, I suggest that we begin the debate and allow hon. Members the chance of discussing these important matters.

Question put and agreed to.

I beg to move, That the clause be read a Second time.

With this it will be convenient to discuss the following:

Amendment (a) to the proposed new clause, after paragraph (1),  insert—

‘(1A) The appropriate national authority must ensure that help under arrangements made under subsection (1) is available to a qualifying patient from the point at which he undergoes any assessment for the purposes of this Act.’.

Amendment (b) to the proposed new clause, in new section 130C(3)(b), at end insert

‘, or is admitted to, or remains in, a hospital, or registered establishment in pursuance of such arrangements as are mentioned in section 131(1).’.

Amendment (c) to the proposed new clause, after new section 130C(3)(b),  insert—

‘(3A) A patient is also a qualifying patient if he is about to undergo, or has undergone, any assessment for the purposes of this Act.’.

Government new clause 5—Independent mental capacity advocacy service: exceptions.

New clause 15—Treatment requiring consent (period of time since administration of treatment)

‘(1) Section 58 of the 1983 Act is amended as follows.

(2) In subsection (1)(b) leave out “three months” and insert “two months”.’.

New clause 17—Nomination of carer as nearest relative

‘(1) The 1983 Act is amended as follows.

(2) After section 26(4) insert—

“(4A) Where a person has made an advance nomination with regard to the choice of a relative or other person to be his nearest relative, his nearest relative shall, subject to the power of the court under section 29 to appoint an acting nearest relative, be determined by giving preference to that choice.

(4B) “Advance nomination” means a nomination made by a person (“P”), after he has reached 18 and when he has capacity to do so and in contemplation that he shall become subject to any act or decision exercisable under the provisions of this Act that his choice of nearest relative shall take precedence over the provisions of subsection (3).

(4C) For the purposes of subsection (4B) P’s nomination must be his carer as defined by section 1(1)(a) of the Carer’s and Disabled Children Act 2000.

(4D) For the purposes of section (4B) nomination cannot be made or withdrawn if P is subject to an order under this Act.

(4E) An advance nomination is not valid if P—

(a) has withdrawn the decision at a time when he had capacity to do so, or

(b) has done anything else clearly inconsistent with the advance nomination remaining his fixed decision.

(4F) An advance nomination is valid only if—

(a) it is in writing,

(b) it is signed by P or by another person in P’s presence and by P’s direction,

(c) the signature is made or acknowledged by P in the presence of a witness, and

(d) the witness signs it, or acknowledges his signature, in P’s presence.

(4G) The court may make a declaration as to whether an advance nomination—

(a) exists; and

(b) is valid.”.’.

Amendment No. 104, in clause 23, page 15, line 27, leave out ‘or’.

Amendment No. 105, in page 15, line 29, at end insert—

‘because his appointment poses a risk to the health or well-being of the patient; or

(f) that in the reasonable opinion of the patient the person is not appropriate.’.

Government amendments Nos. 51 to 58, 60 to 66 and 68

It is a pleasure to report back from the Committee after our extensive debates. It is particularly pleasurable to start with this group of amendments, as the amendments that we have tabled on advocacy are in response not only to what was said in the other place and in the detailed discussions that we had in Committee, but to the many representations that we received from organisations that have an interest in people with mental health problems having access to advocacy.

Government new clause 3 and Government amendment No. 66 provide for advocates to be available to patients detained in hospital for assessment or treatment, to community patients and to patients subject to guardianship. In the other place and in Committee, the issue was raised of specialist advocacy for black and minority ethnic patients, child patients and patients with learning disabilities. My hon. Friend the Member for Hackney, South and Shoreditch (Meg Hillier) spoke in Committee of the great benefit of specialist advocacy for patients for whom English is not their first language. The need for specialist advocacy is the reason that we have included a regulation-making power that will allow us to make different provisions for cases when it comes to the training requirements for advocates.

As was pointed out in Committee, patients must know that they have a right to advocacy. We have provided for them to be told orally and in writing. In addition—I know this will interest the hon. Member for Tiverton and Honiton (Angela Browning)—Government amendments Nos. 52 and 61 amend the Mental Capacity Act 2005 and give the person deprived of liberty or their representative the statutory right of access to an independent mental capacity advocate to explain to them the authorisation for the deprivation of liberty and to provide support with a review or with an application to the Court of Protection. Again, these Government amendments, which reflect representations made to us, also ensure that both the person and their representative are told about the IMCA service.

My right hon. Friend mentions the existence of independent mental capacity advocates under the 2005 Act; now we are to have independent mental health advocates. Can she assure the House that they will effectively be the same bodies of advocates, with common training and arrangements?

My hon. Friend is right to raise that important issue. We believe that there is scope for advocates, if they wish, to receive training in both areas. Naturally, some people will perhaps wish to specialise. He is probably aware that the pilot training for IMCAs is already under way, but there would not necessarily be any problem with people being able to specialise in both areas.

I apologise for coming late to the subject. I was not a member of the Public Bill Committee, so this matter may have been discussed already, but will the advocates be funded from the Minister’s budget or from the Ministry of Justice’s budget, or will they be paid for by the people for whom they will provide representation? It seems a little unclear.

I can assure the hon. and learned Gentleman that they certainly will not be paid for merely by the people who need to use them. They will be paid for by the supervisory body—whether that is the local authority or health authority will depend on the IMCAs and, in a sense, those for whom they are to be used. In the case of mental health advocates and mental capacity advocates, individuals will not be expected to pay for them.

I have today received an e-mail from Mental Health Matters, a charity in Bridgend that provides a community advocacy service. One of the things that it welcomed was this provision and this change on the part of the Government. In particular, it has written to say that it is an important change, which it welcomes, but that it is having difficulty in getting the local trust and the local authority to fund its community advocacy service. Does my right hon. Friend agree that it is important that the voluntary sector is approached in providing such services, as it gives confidence to many users of mental health services that advocacy is independent and works in their best interests?

My hon. Friend is right. During debates on the Mental Capacity Bill, we were able to give assurances that we saw an important role for the voluntary sector in such instances because that sector often has such expertise. One thing that we hoped would flow from our taking statutory powers in this sense would be the ability to ensure that a number of voluntary organisations would have access to some of those streams of funding, particularly because such organisations are often seen as independent and as having quite a lot of expertise already. There is no point in reinventing the wheel in some of these cases, but we need to ensure that the organisations have proper training. That is why, through some of the IMCA pilot sites, we have been ensuring that that takes place.

Will there be a statutory right for the patient to see the independent advocate in private?

We would like to ensure that the advocacy services are delivered in the most appropriate way. If there is a need for privacy to form a part of the service, that would be expected to be the case. I take on board what the hon. Lady says. However, we would have to be careful not to give the impression that every interview had to be held in private in case that was not appropriate for an individual, for example if it caused them distress. It is right to say that we should think about ensuring that privacy is provided wherever possible. Perhaps we could take the subject away and consider it in respect of such issues as the code of practice in both instances, as well as the importance of training in that area.

It seems to me implicit in new clause 3 that an advocate should be able to speak with the patient, and should perhaps therefore be able to speak another language. Will my right hon. Friend explain her views on bilingual advocacy? It is not the same as having advocates with translations. I appreciate that it would be difficult to make an open-ended commitment to ensuring provision in every language spoken by people in my constituency, but for an advocate truly to understand the case—and this is stressed by Derman, a Turkish and Kurdish advocacy service in my constituency—they need to understand the cultural implications of someone’s background.

That is exactly why, as I have said, we have included in the power relating to regulations the ability to consider the issue of specialist advocacy; that will cover exactly those points.

Further to what the Minister has said, would advocates in Wales be treated as working for a public body, as defined by the Welsh Language Act 1993?

That is something that the hon. Gentleman will need to take up with the National Assembly for Wales. Obviously, some of those matters will be devolved. The Bill enables powers to be taken, but some of the implementation, particularly with regard to specialist advocacy, may well be covered by the Assembly.

Section 40 of the Mental Capacity Act 2005 provides that an IMCA is not required to be appointed in certain specified situations. Government new clause 5 and Government amendments Nos. 62 to 64 and 68 would limit the exceptions under section 40. Where someone has been appointed for matters related to property and affairs, the appointment will no longer preclude an IMCA from being instructed for health and social care matters.

I want now to turn to the amendments tabled by the hon. Member for Romsey (Sandra Gidley), which would make changes to the Government new clause requiring advocates to be made available to patients who had not yet been detained for the purposes of assessment or treatment, and for child in-patients who were not subject to detention. I completely understand her concerns, but we need to target resources at the most vulnerable. We do not agree that it is necessarily either appropriate or workable to provide advocates to people who have not yet become subject to an application for detention, or who are not being treated under the Mental Health Act 1983, except in the specific and limited circumstances that we have set out. We must prioritise, and we believe that we have identified the priority group.

There are also links between some of the nearest relative provisions and our intentions in introducing advocacy; I know that my hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones) sees the nearest relative as being, in a way, the patient’s representative. The aim of new clause 17 and amendments Nos. 104 and 105, tabled by my hon. Friend, is to provide patients with the opportunity to have their carer appointed as their nearest relative, and to extend the grounds on which they can apply to displace a nearest relative.

That is an issue about which there were lengthy debates in the other place, particularly about whether a patient should be able to choose their nearest relative. Those debates continued in Committee. I considered the matter extremely carefully, because I can understand the intuitive sense that it is the right approach.

Having looked at it, however, I came to believe that it would be inappropriate to make the kind of changes that my hon. Friend the Member for Birmingham, Selly Oak is suggesting—so that someone could choose a nearest relative in the same way as they would choose a direct representative or a next of a kin. We need to start from the position that the nearest relative has very particular powers under the Bill, some of which are quite specific, in respect of preventing detention and applying for discharge.

I hope that the Minister realises that the issue is also very sensitive in the other direction. Many “revolving-door” patients of mental health institutions—that is not a very nice term, but it is one that we grew used to in Committee—sometimes feel that they want to change their nearest relative without having to go to the court and give lengthy and complex arguments why they should be able to do so. I hope that the Minister understands that, too.

Of course I understand that, and I know that my hon. Friend is concerned about this particular issue. As I said, I examined it very closely and asked my officials to see whether there was a way of trying to accommodate that development. Let me set out some of the reasons why we decided that there was a real difficulty with such a provision.

If we allowed an automatic right to appoint the nearest relative in advance, to comply with the European convention on human rights it would be necessary to set up a system by which nominations could be ratified by an independent process with a suitable mechanism for appealing decisions. There is no existing body that could do that; we would have to set up a new body, whereas at the moment we take such issues to the county courts. We would still need a process by which to make that happen. For example, we would need to be able to allow a nearest relative who was being displaced to appeal if they felt that it was the wrong approach.

I understand the argument that it would be possible for someone to nominate a person in advance when they were not subject to the legislation—that is, when they were not in a detained situation—in anticipation of being detained, but for ECHR compliance it would be difficult to have one system for people who were not detained and a completely different system, under which people had no access to that right, when they were being detained. Restricting the provisions to carers alone would also have particular problems.

Amendment No. 105 would add another ground on which applications could be made to displace the nearest relative—

“that in the reasonable opinion of the patient the person is not appropriate”,

and would also amend ground (e) in clause 23(5). I understand the concerns expressed about the Bill’s new ground of being “not suitable”. For the first time, patients can apply on those grounds and say that they believe that their current nearest relative is not suitable. Concerns have been expressed about whether the provision would cover situations where patients have no real relationship with their nearest relative. Although it is important that the courts look at each case on its merits, we intend the idea of unsuitability to cover situations where there is no effective relationship between the patient and their nearest relative, or where the relationship has broken down irretrievably.

Given the other changes that we are making, we believe that our proposals cover some of the problems highlighted by my hon. Friend the Member for Birmingham, Selly Oak in amendments Nos. 104 and 105. We shall continue to hold consultations about the code of practice and I am happy to include my hon. Friend in them, as I know she is particularly concerned.

Will the right hon. Lady give way?

I will in a second.

The changes we are making to the Bill give patients a new right to apply to the court for displacement. They will then be free to nominate anyone they want as their replacement nearest relative. As long as the court finds that person suitable and they are willing to act, they will be appointed. As well as that new right, we have provided that the involvement of carers and others with the patient must be addressed as part of the fundamental principles. That meets the fear that people might be excluded. Based on the principles, the code will make it absolutely clear that the nearest relative is not meant to replace the patient’s next of kin, so their appointment does not prevent other people nominated by the patient from being contacted or appropriately involved in decisions about care and treatment.

The Mental Health Act 1983 provides that hospital managers have a duty to advise patients of their rights, including providing all patients with information about how to apply to the county court. I think that my hon. Friend the Member for Birmingham, Selly Oak, and some members of the Committee, were concerned that people would have to go through a cumbersome process, so we shall ensure that patients are advised of their rights and training is given to ensure that those who inform and advise patients understand the new rights properly. In our meetings with the new mental health coalition, concerns were raised about the provisions, so we have looked at matters closely and considered production of a user-friendly guide to applying to the county court.

New clause 15 relates to the three-month rule under section 58 of the Mental Health Act 1983, and would reduce to two months the period after which the section applies. The section requires that if a patient refuses consent, or cannot give consent, a SOAD—second opinion appointed doctor—should certify that the treatment is appropriate and should be given. My noble friend Lord Hunt said in the other place, and I reiterated in Committee, that we continue to believe that the three-month period remains appropriate. The 1983 Act contains a power, in section 58(2), to reduce the period by order, so we can already go forward on that basis. However, we feel it would be more appropriate to do so after consultation, so that we can proceed based on evidence, and at a manageable and sustainable pace. At this stage, we do not think it right to change that existing power without undertaking proper consultation and without ensuring that we can deliver on it.

To pre-empt the new clause that I shall propose in a minute, may I ask the Minister: has not the power to vary the term been in the Act since 1983? The Government said that they would look at it, but nothing has been done for 24 years. Why is the Minister so convinced that the three-month term remains appropriate? She has not made the case.

There is no evidence to support the proposition that the period is too long. Of course, I am aware of comments made by the Mental Health Act Commission and the Joint Committee on Human Rights, but those opinions do not constitute evidence that three months is not the most appropriate period for the SOAD to assess a patient’s medication for the first time and, with the approved clinician in charge of treatment, to identify whether changes should be made to the ongoing treatment plan. As I said in Committee, the High Court has recently refused leave for a judicial review of the compatibility of the three-month period with the European convention on human rights, so it is not outside the ECHR. We do not believe that there is evidence for changing the period, and that is why we do not accept the need to do so.

Most of all, the power exists already, and we would use it only after proper consultation with clinicians and others to decide whether it was an appropriate time to use it. Otherwise, it could become a completely unmanageable and unsustainable change.

Will the Minister give way?

I will give way to the hon. Gentleman, but I am sure that we will hear his arguments in full before too long.

Absolutely, and I shall try to make them brief.

If the Minister is to be consistent, why was it appropriate in the 2004 draft Bill to set up the tribunal system, which has now been dropped, which would have reviewed the case after not three months or two months, but 28 days?

As the hon. Gentleman knows, a number of changes were suggested in the draft Bill, but it was rather heavily criticised by the pre-legislative scrutiny Committee, of which he was a member, for being lengthy and complex, and for making many commitments that would involve financial considerations that could not necessarily have been delivered. We responded to many of the Committee’s points by introducing a short amending Bill to amend the 1983 Act.

If the hon. Gentleman is happy to enter such a commitment, involving a number of changes and commitments, both managerial and financial, I am sure that his Front Bench will be behind him. However, I urge him, when talking to his shadow Chancellor and the rest of the gang, to make it clear what such a commitment would mean. I also urge him to ensure that he is absolutely convinced that the right evidence exists to make such a commitment. We do not believe that it does.

I apologise to the right hon. Lady that I was not here for the start of her remarks. I have no wish to be curmudgeonly or uncharitable, but I am conscious that new clause 3(2) and (7) refer to the order-making power and the different regulations that will flow from that. Can the right hon. Lady assure me that we will have sight of at least a draft of the intended regulations before the ultimate passage of the Bill? Otherwise, with the best will in the world, we are being asked to opt for, and to be content with, a pig in a poke. We need to see the detail before we vote for the legislation.

I am astonished that the hon. Gentleman refers to our Bill, which has been through such distinguished discussions, as a pig in a poke. I am sure that his Front Bench will have something stern to say about that. I hope that I can reassure him that we will continue to consult fully on the Bill, particularly on some of the regulation-making powers, not only through the procedures of the House but with clinicians and others who have shown an interest. We are anxious that the implementation be effective, so we will continue to discuss that.

I want to comment on two aspects of this group. First, I want to pose some questions to the Minister about advocacy. Clearly, that part of the Bill is completely new. It is a welcome new addition, but it is a reappearance, because advocacy services were promised by the Government in the 2004 draft. That was very much welcomed by the pre-legislative scrutiny Committee, which raised practical questions with the Minister about it. She has now included the provision, but it could have been included in the first place, which would have enabled the Committee to consider the finer print, and saved us further debate here.

Advocacy is essential in three main areas: to ensure a statutory right to an independent mental health advocate for all patients subject to compulsory powers; to make patients aware of that right, which the Minister has touched on; and to ensure, as my hon. Friend the Member for Tiverton and Honiton (Angela Browning) pointed out, that patients have a right to meet their advocate in private. Those are fundamental human rights that should be made available as part of the service.

The advocates will be essential, providing support to vulnerable people in exercising their rights to appeal against decisions made for their treatment or confinement: for example, as a way of communicating their interests when they may lack capacity to do so for themselves. That service should be provided, particularly for the most vulnerable patients, and prioritised at the point of crisis. The issue of the availability of culturally competent advocacy has also been raised. In particular, the black and minority ethnic mental health communities have pointed to the importance of suitable advocacy for their members.

The pre-legislative scrutiny Committee questioned the Minister’s estimated costings. The regulatory impact assessment estimated the whole-time equivalent of 140 advocates at a cost of approximately £5 million. We seriously questioned whether the Minister had made a very conservative and inadequate estimate. We need to be convinced that the service will be workable, viable and sustainable, not just a token effort to make available a few—but not nearly enough—advocates. Has the Minister reviewed the costings?

I raised the issue of common advocacy standards, training and arrangements with independent mental capacity advocates because I hoped that that would enable us to ensure that the costs were proportionate and affordable.

The hon. Gentleman has raised that issue before, and has been a big advocate of advocates for some time. The point he makes is right. It also touches on how the advocates should be overseen and quality-controlled. Again, the pre-legislative scrutiny Committee suggested that the Mental Health Act Commission should be engaged to set the standard for the advocates. If we are to have advocates, we need to ensure that they know what they are doing, and are of a sufficient standard to do what can be a technical job dealing with technical parts of the law, as all of us who have been involved with the Bill for some years, and on the Committee for the past few weeks, know.

What has been learned from the Mental Capacity Act 2005 about the use of advocates? I know, from when the Minister and I discussed a statutory instrument to extend the pilot for advocates provided under that Act, that they have gone down well. At that time I raised the great inconsistency: if they worked well for people covered by that Act, why on earth were we not having them in this legislation—as we now are? I should like to hear some comments on that. We support what the Government are introducing, and merely question whether the measure is sufficiently resourced and structured for it to be as successful as we all want it to be. However, I certainly commend the Government for introducing it.

The Minister pre-empted some of my comments on new clause 15, although she did not answer my questions about it, which I fear was also the case when we raised the subject in Committee. This is important because it is all about respecting the wishes of vulnerable patients and considering the effect of treatment on them, giving them an opportunity to engage in their treatment, and ensuring that there are thorough checks and balances so that people with serious medical conditions get the right medical treatment. Given the serious effects of medication and the possibility of patients being given too high a dose without their consent, even despite their active opposition to medication, we must ensure that we get it right.

As the Minister said, the new clause would amend section 58 of the Mental Health Act 1983 by reducing from three months to two the time before a second medical opinion is required for medication. The Joint Committee on Human Rights—its Chairman is not in the Chamber, but I am sure that he will be joining our deliberations because he has tabled later amendments—proposed that the time should be reduced from three months to one. We are proposing a compromise, as we did in Committee, to reduce it from three months to two months in stages. The Joint Committee had serious concerns, which again the Minister has not allayed.

The second opinion appointed doctor will assess types of medication, the doses of medication and the combination of different medications. We are talking about powerful chemical cocktails. They have the capacity to bring about serious side effects, such as obesity, diabetes, impotence and movement disorders. It is essential that we take the patient’s feelings into account and ensure that we have good practice.

We also made the case in Committee that patients in that condition should be subject to more regular physical health checks for their own benefit, simply because of the physical effects that many of the powerful drugs have on them. We are joined in that request by the Mental Health Act Commission, which has raised on several occasions, and in at least two of its reports, its concerns about how the period of three months works in practice. In its last biennial report, for 2003-05, it said:

“Too many patients feel that they are excluded from decision making and the exercise of choice in their hospital treatment and unable to discuss their subjective experiences of therapeutic effect or adverse side-effects. This is likely to exacerbate the likelihood of non-compliance after discharge and may contribute to the problems of revolving-door readmissions”.

It is not good for patients’ therapy or recovery to feel excluded in that way.

The MHAC says that when visiting hospitals it has found that medical treatment is a key issue for patients, and it often receives complaints about it. In its most recent report it listed complaints about, for instance,

“No record of discussion with patient regarding proposed treatment...No record of assessment of patient's capacity to consent to treatment... Patients telling visiting Commissioners that they are not happy taking their medication”.

As the Minister knows, a patient’s diagnosis is not straightforward and may change several times over a period of detention. We think that three months of being treated without consent, or with a lack of capacity to consent to treatments that may be causing harm, is simply too long. In 2004-05, 18 per cent. of patients’ plans were changed as a result of SOAD intervention, but as the MHAC reported, that is not an accurate indicator of the importance of the role.

There is an extra incentive for doctors to get it right. As the MHAC says,

“the SOAD provides a check on the RMO’s practice”

—“RMO” stands for “registered medical officer—

“and by the very nature of the oversight provided by the Second Opinion ensures that RMOs give careful thought to their decisions. We believe that if this provision had not been available there would have been no check on the appropriateness of treatment, and many more treatment plans could have been the subject of formal complaint.”

The Minister has already taken up my point that the 1983 Act provides a power, under order, to vary the time. We have had 24 years in which to do that, but it has not been done. The MHAC says

“We believe that the current Act provides insufficient protection to patients in the first three months of their treatment under detention, when they may be forcibly given medication in doses or combinations that are outside of product guidelines and recommendations without the oversight of a Second Opinion Appointed Doctor. Some RMOs appear to share our unease: we receive…occasional requests for statutory Second Opinions in relation to such patients”.

The Minister addressed that point a moment ago without answering it, or at least, she answered it completely the wrong way. She said that the Government agreed with those concerns, and that that was why tribunals that they had intended to establish under the draft Mental Health Bill of 2004 would have had power to step in after 28 days. This is nothing to do with cost-effectiveness, or with our practical complaints that people were not available to man the tribunals. The principle was that the conditions should be examined after 28 days. Our complaint was that the mechanics would not be practicable. If the principle was right then, why are the Government reverting to a three-month period? That is the question that the Minister has not answered.

In Committee, the Minister said that the system would be too bureaucratic and might involve up to 8,000 more SOAD hours. There would be a big cost and resource implication. Mat Kinton is undertaking further research for the MHAC, which is not yet finished but is soon to be published. We have been given permission to quote from it. Mr. Kinton conducted a survey of the 14,574 patients detained at 31 March 2006, just over a year ago. He was able to examine just over 81 per cent. of them in detail. Working on the Government’s figures, he established that if the three-month rule had been a two-month rule, 3,598 patients, or 30.5 per cent. of the total number admitted to hospital under Mental Health Act powers, could have received a second opinion. That is an additional 337 opinions and an increase in second-opinion activity of slightly over 10 per cent., which amounts to nothing like 8,000 additional SOAD hours.

I believe that the Government’s estimates are woefully wrong. I am surprised that the Minister has not been contacted the MHAC, given the serious concerns that it has raised on a number of occasions. The Minister’s figures are wrong; but, more importantly, the principle that someone should not be forced to wait for three months on medication that may not be appropriate—regardless of the physical, let alone the mental effect—is fundamentally wrong.

Our suggestion is not radical; it is a compromise solution—to reduce the period from three months to two months. Many people think that the period should be shorter than that. It is a practical suggestion and, more importantly, it addresses the principle of respecting the wishes of people with mental illness. It makes sure that they are engaged properly in their treatment, rather than potentially cut adrift from having any say in it for three months until a SOAD is appointed. On that basis, I am minded to press our new clause to a Division at the appropriate time, rather than to withdraw it as the Minister requested.

In speaking on advocacy, I should declare an interest. I am honorary president of the Advocacy Services in Staffordshire, or ASIST.

I warmly congratulate the Minister on the work she has done on advocacy between the Committee and Report stages. She gave an assurance in Committee that she would bring this matter back to the House and she has done so; that is welcome. I said in Committee that it was untenable for us not to have a system of advocacy for mental health patients when we have now accepted advocacy for mental capacity cases. The wording of the new clause closely follows the wording on advocates in the Mental Capacity Act 2005, which shows that synergy. My earlier intervention on the Minister was intended to be helpful. I said that there might be common standards, training and systems of maintaining advocates in order to keep the costs of both systems at a reasonable level.

Advocacy is to be welcomed because patients can find it disempowering enough to have to face the panoply of the mental health system when in need of help, but when faced with professionals such as a consultant psychiatrist or a range of people with other mental health expertise—perhaps social workers, too—it can also seem that the balance of power is wrong. The beauty of the advocacy system is that it enables someone to stand shoulder to shoulder with the patient in putting their case. It can enable the patients themselves to say exactly what they want, and if they are unable to do so it enables the advocate to speak up on their behalf and to make sure that their voice is heard in deliberations and planning.

Does my hon. Friend agree that advocacy is not just about helping the patient from a health point of view, but that there might also be legal implications which it is important that somebody present addresses in order to prevent the patient from ending up unprotected in a court situation?

I agree, but as we found in debating and amending Acts such as the original 1983 Act, legal issues can be difficult and complex. The advocates we are talking about are citizens’ advocates rather than lawyers, who are advocates who understand the law. Sometimes, an important part of an advocate’s role is to make sure that the legal interests of a patient are presented and studied by an independent lawyer.

I especially welcome the Minister saying that when the advocacy system is in place there will be full information for patients about the availability of the scheme, and full training on advocacy for staff in mental institutions and in the community who provide mental health services so that they can make sure that people receive their entitlements and rights.

This is such an important change from the Bill in its original form that I hope that it will also help us to overcome some of the objections raised in the other place about other parts of the Bill. When we are sure that patients are as protected as possible by a system of advocacy, some of the objections debated in the other place can fall away.

My right hon. Friend the Minister said that she was not minded to agree to amendments to new clause 3 to do with children and advocacy. That is disappointing, and I hope that the Minister will say that she will at least keep the door open for that to happen later.

On another area of law, I chair the all-party group on looked-after children and care leavers, and I know just how vital it is for those vulnerable children to have access to advocacy. They do not yet have universal access—access is provided only in certain specified circumstances—and I want to argue for their having it. Similarly, children who are patients in the mental health system are particularly vulnerable, and I hope that they, too, can have universal access to advocacy.

Does my hon. Friend agree that many of the people who suffer from anorexia and bulimia are often quite young and need support, which has not been forthcoming? We should therefore consider them just as seriously, because this is a somewhat new area of endeavour.

Indeed, and as I explained on Second Reading, a hospital in my constituency specialises in eating disorder cases, and some of the children who attend it are extremely young. In Committee, we debated age-appropriate facilities for children, and learned of a child as young as 10 who was in very inappropriate accommodation when receiving in-patient hospital treatment. So yes, those children can be very young and very vulnerable.

I want to say a little about nearest relatives and carers. Between consideration in Committee and today, my right hon. Friend the Minister and I corresponded on this subject, and I am disappointed at not having made any progress. There is one issue that I would like to bring to the head of my wish list: I want the Minister at least to look again at the definition of a carer. At the moment, we are reliant on the 1983 Act, which says that a carer is somebody who has been caring for five years, which then gets them on to the nearest relative list. If they are living with the patient at the time that such services are required, they can go to the top of that list. However, the position of carers has moved on a long way since 1983. Since then, there has been a Labour Government—since 1997—and we have the country’s first ever national strategy for carers and the first dedicated funding for carers, rather than for the people whom they care for. We have also established for the first time an entitlement for a carer to have an assessment of their needs, rather than of the person whom they care for.

So the definition of a carer today is very different from simply being someone who has lived with a person for five years. Of course, many carers do not live with the person whom they care for, even though they are their full-time carer, so I would argue that we still need to look at the definition of carer. I understand why my right hon. Friend the Minister is not attracted to new clause 17, but it does at least bring up to date the definition of a carer, in line with the legislation introduced in 2000, which is the latest to deal with carers.

I turn to my final point on the ability to nominate someone to be the nearest relative. I have read the correspondence that my right hon. Friend sent to me and I accept all the arguments, but I ask whether there is one last option—one quite similar to that given in a briefing that we received from the Law Society. Here, I should declare another interest as a non-practising solicitor. If the person in question could nominate from a closed list, rather than an open one, would that get round the problems associated with the European convention on human rights that my right hon. Friend mentioned? If the closed list could simply be the nearest relative list with an updated definition of a carer included, could not the person in question—when they are not subject to the powers under the 1983 Act—at least nominate somebody from that list in order to bring them to the top of it, rather than somebody who is completely outside that list? That is my last suggestion for the Minister, and I hope that it is of some help.

It would be churlish of me not to welcome the Government new clauses and amendments. As the Minister suspected, amendments (a) to (c) to new clause 3 are an attempt to see whether she can be pushed just a little further. I take on board the points made about resources. Indeed, a briefing from the NHS Confederation, which most Members present today will have received, raises concerns about the resourcing of this service, and points out that patients have to know about its availability. So I take on board the point that we should see how things progress and then potentially go further.

I shall briefly outline why it was important to table the amendments. I am sure that the Minister is aware that a disproportionate number of black and minority ethnic people are sectioned. It is a particular problem for the Afro-Caribbean community, which experiences more instances of over-medication, misdiagnosis and control and restraint. They are more likely to be detained as long-term patients, which increases the need for access to advocates before sectioning. That is the driver behind amendments (a) and (c).

In Committee, the Minister glossed over my comments about a race equality impact assessment for the Bill. It is not enough to assume that all will be treated equally under the Bill, because that does not happen at the moment and there is nothing in the Bill to suggest that it will change matters. If one section of society has different outcomes, that is a problem that needs to be addressed in some shape or form and the amendments are an attempt to address it.

There has been a history of misunderstanding and discrimination against black and minority ethnic people, resulting in the death of several Afro-Caribbean service users under the care of the mental health system. The most famous case is that of David “Rocky” Bennett, which was the subject of an independent inquiry by Norfolk, Suffolk and Cambridgeshire health authority. The inquiry’s report made 22 recommendations. The key underpinning theme of those recommendations was that there should be ministerial acknowledgement of the presence of institutional racism in the mental health services and a commitment to eliminate it. It is never pleasant to have to admit something like that, but the figures speak for themselves.

A study has also found that there are circles of fear that stop black people from engaging with services. They do not access help early because they are concerned about what will happen to them. The study found that Afro-Caribbeans were often not treated with respect and the services were not accessible, welcoming, relevant or well integrated with the community. The way in which Afro-Caribbean people enter mental health services is problematic and influences the nature and outcomes of treatment.

Most importantly, different models of description of mental illness and other people’s philosophies or world views are not understood or even acknowledged. That is a double-edged sword, because the flipside is that the concept of culture has been used to attempt to address some of those issues, but it can also divert professionals from looking at the patient as an individual, with their own characteristics, history and needs. Assumptions can be made on the basis of race, and that is wrong.

Those and other findings were supported by the “Inside Outside” report and the “Breaking the Circles of Fear” report. A recent Mental Health Act Commission census also backed them up. The amendments attempt to address some of the problems, because if advocacy is available at the beginning of the process, an appropriate advocate could be found who could ensure fairer treatment.

The Minister was concerned about the overall financial impact of the amendments, but if she is serious about addressing the problems of racism, she could consider a pilot scheme in a relevant area to see whether structured access to advocacy services and greater cultural awareness help to break down some of the barriers and reduce the statistics. I hope that the Minister will look into that—

As the hon. Lady will know, Rocky Bennett was in a certain unit in my constituency. How would advocacy have helped in the situation on that Saturday night?

I do not want to go into individual cases. The example that I cited was not the best example of the effect of a lack of advocacy services at the beginning because there was clearly a mental health problem in that case. I raised that case, however, because of the report that highlighted the problems experienced by many service users. It is fair to say that several Afro-Caribbeans would not be sectioned or subjected to electro-convulsive therapy if there was more understanding of their culture and needs.

Like everyone who has spoken, I warmly welcome the Government new clauses and amendments and the increased safeguards for vulnerable people that will be introduced through the arrangements for advocacy. The new clause and amendments that I have tabled would improve the arrangements by which the nearest relative could be displaced, if necessary. The Bill contains a measure that allows for that, but it is problematic because it requires a patient to go to court and due to the grounds set out on which a nearest relative may be displaced.

New clause 17 is based on an amendment tabled in Committee by my hon. Friend the Member for Stafford (Mr. Kidney). It would avoid court proceedings by allowing a patient to give an advance directive of the name of the nearest relative. As my right hon. Friend the Minister said, the appointment of the nearest relative is extremely important. However, as my hon. Friend the Member for Stafford pointed out in Committee, there is all too often no nearest relative who is willing to perform that role. If someone suitable is available, it is thus important that it is as easy as possible for a patient to appoint that person as the nearest relative.

My new clause differs somewhat from the original measure tabled by my hon. Friend because I have attempted to address several concerns expressed by the Government. I realise that it would not be appropriate to allow frivolous changes or appointments of the nearest relative, so my amendment would confine the appointment or changed appointment as the nearest relative to the carer. As my hon. Friend the Member for Stafford pointed out, a carer is someone who is not living with the patient, but who has their best interests at heart, spends a great deal of time with them and knows their case, and is someone whom the patient can trust.

At various meetings, we have had put to us examples of people who have no contact whatever with their relatives, but who would find the prospect of a court process to displace them somewhat daunting. I am disappointed that the Government cannot find a way to make provision that enables the nearest relative to be changed without going to court, although I am pleased by the Minister’s assurance that she intends to make the system as user friendly as possible. Of course, it is not necessary for the patient to take the action themselves; they can be supported in doing so, or the process can be carried out on their behalf.

Amendments Nos. 104 and 105 are designed to make it possible to seek displacement on broader grounds than the Bill allows. The Joint Committee on Human Rights has criticised the provisions of the Bill and the associated code of practice, saying that they are too narrow to enable the nearest relative to be displaced unless there is some undercurrent of abuse. That important point must be addressed, and I am grateful that the Minister is willing to consider the code of practice and to discuss further whether those concerns can be properly dealt with.

As the relative of someone who has been very ill and undergone the process of sectioning, I am well aware of the concern of nearest relatives that they should not easily be set aside. I know that, at times of crisis, patients can turn against family members—the people who are most concerned about them. I therefore understand the Government’s concerns, but I hope that they will do all they can to address the worry that lies behind new clause 17 and amendments Nos. 104 and 105.

My name does not often appear on amendments alongside that of the Secretary of State for Health, but I am pleased to support new clause 3.

I intervened to ask the Minister of State about advocates having the right to see patients in private. The right hon. Lady suggested that she was not prepared to put that on a statutory basis, but referred yet again to the code of practice.

Will the hon. Lady give way?

Let me just finish this point.

When the code of practice is drawn up, it is important that the Government identify, not so much the crises, but what I would describe as the pinch points in the process of dealing with someone who is under a section order or who is detained, including those who might be detained in a police cell under a section 136 order, for example. At such points, it is important that they have access to advocacy.

There are times when advocacy is perhaps more relevant than it is at other times. I suggest that immediately or very close to the point at which a person has been admitted to hospital under a detention order, they should be made aware of their rights to advocacy—subject, of course, to their being aware and well enough to understand that information. Early intervention and notice of advocacy and access to an advocate are extremely important.

Before everybody loses sight of the fact, I point out that proposed new clause 130B(3)(a) in new clause 3 says that the independent mental health advocate may

“visit and interview the patient in private”.

I appreciate that, but I felt that the Minister was praying in aid the code of practice in her response to me, and I just wanted some clarification on that issue. Finally, I want to pick up on a point made by the hon. Member for Birmingham, Selly Oak (Lynne Jones): when we consider the nearest relative and carer, we should remember that they are often one and the same person, and that is quite a difficult situation, not least in the situation that she identified. Sometimes, if the patient lives with their nearest relative, or their nearest relative is also their primary carer, a situation develops in which that relative becomes personally involved in assisting the medical profession to section someone close to them. That can trigger a reaction on the part of the patient. I hope that the Minister will consider those situations and will be flexible enough to identify them on a case-by-case basis.

However, the Minister faces a dilemma, because it is not an easy issue to resolve. In the Bournewood case, the nearest relative of HL—an autistic adult who was detained—did not have day-to-day knowledge of HL’s condition. It was actually the paid professional carer who had that knowledge, and it would have been much more helpful if the carer had been involved at a much earlier stage. I appreciate that it is a difficult point for the Minister, but I hope that the system will be robust, yet flexible enough to allow difficult circumstances to be built into the changes that she is introducing.

rose—

I call Kitty Ussher. I beg your pardon—I mean Meg Hillier.