asked Her Majesty’s Government:

What progress has been made in improving the air bridge for transporting troops to Iraq and Afghanistan.

My Lords, I am sure that the whole House will wish to join me in offering sincere condolences to the families and friends of all those killed and injured in operations over the Recess.

Troop movement is generally working well. Between April and December 2006, 80 per cent of strategic air transport flights were on time or delayed by less than three hours. For Iraq this figure was 86 per cent and for Afghanistan it was 75 per cent. Recent improvements include refurbishing the runway at Kandahar airfield, which was completed in November 2006. This now allows troops to fly direct rather than via Kabul, which reduces journey times and increases C130 availability.

My Lords, from these Benches, we join the Minister in sending condolences to the families of those soldiers killed.

The Minister will be aware that I have raised this issue a number of times from this Dispatch Box. Despite what he says, soldiers tell me that the situation has not improved. Vintage VC10s and Tristars continue to break down, leaving soldiers stranded sometimes for days on end, which is utterly demoralising for them and their families. Who is responsible for the air bridge? If, as I suspect, several different people and groups share responsibility for this unacceptable state of affairs, will the Government take the necessary steps to appoint one senior responsible owner, whose only responsibility would be to get this essential service right?

My Lords, I agree that air transport for our troops is a vital area. The noble Lord is right that some of our aircraft are aged. Taking into account the operational tempo with which the RAF is having to cope and the age of some of the fleet, I believe that the RAF is doing an excellent job. The number of troop passengers carried over the past year has gone up by more than 40 per cent, which reflects the tempo that is being coped with.

None the less, it is important for us to do whatever we can to improve the situation, which I and the RAF are aware is not as good as we would like it to be. In December, the AOC of 2 Group implemented an initiative to put more focus on the experience, if you like, for our troops in transportation. We hope that this will provide improvements in a number of areas. For example, we are investing in Brize Norton to improve the experience for passengers while they wait. None the less, I will look at what further work we can do to improve this.

My Lords, from these Benches we also offer our sincere condolences concerning those who have been killed in Iraq and Afghanistan over the break, and to those who have been injured we wish a speedy recovery. Can the Minister explain why, in the public service agreement that his Ministry has signed, the target for improving the deploying, sustaining and recovering of force elements in this area is set at only 5 per cent over a three-year period? Furthermore, how did he manage to achieve the data that he has just given us, given that that public service report in the annual accounts says that a method by which to measure such data has not yet been designed?

My Lords, the data that I quoted are about the proportion of tasked flights for transportation which have been either on time or within the three-hour delay period. That information that I have shared with the House is recorded and is for April to December 2006. The number of Tristar aircraft defined as being fit for purpose to meet the tasking is hitting very close to the 4.75 to 4.8 target. I shall look at the figures relating to the PSA, to which the noble Lord referred. I am not aware of them but, if I can give him any further information, I shall write to him.

My Lords, the Minister acknowledged that the air transport force is working extremely hard—much harder than programmed for—with a very aged fleet, but all that was known well before the forces were committed to a second front in Afghanistan. Is it not outrageous that troops are being left waiting for long periods due to the inability of these aged airframes to be kept serviceable, no matter how hard the Royal Air Force service ground crews work? Is that not just another example of overcommitment of our Armed Forces over a very extended period, and should it not have been taken into account before we were committed to Afghanistan?

My Lords, the noble and gallant Lord knows from his own experience the importance of this air transport fleet. The RAF’s total transport fleet for passengers, freight and air-to-air refuelling is 70-odd aircraft. If we look at the decisions taken by the Government to invest in new aircraft, be they C17s or the A400M, we see that it takes some time for those aircraft to come on stream. The most important project for the air passenger side is the FSTA project. The noble and gallant Lord is absolutely right that that is urgent, and I am well aware that we need to make a decision on it quickly.

My Lords, will the Minister answer the question that my noble friend asked from the Front Bench? Will he and the Government consider appointing a single entity to be totally responsible for all these average movements?

My Lords, in answering the noble Lord’s question, I referred to this new initiative, which was set up in December. However, I will look further at whether there is an increased advantage in focusing more closely on this area. Although, on the face of it, the figures that I quoted look like a pretty good performance, I recognise that the troops have experienced delays, so I will see whether further improvements can be made.

My Lords, over the past 12 months, on average per flight, how many service personnel, having been given firm movement orders and a confirmed booking, have been bumped? How are these personnel being dealt with to and from the two theatres and Brize Norton?

My Lords, the noble Lord will recognise that flight delays are not limited to the RAF, as we have seen with passenger flights over the break. We recognise the importance of aircraft maintainability but other factors, such as the weather, are issues in certain areas in Afghanistan. However, we think that the move that we have made recently will improve flight performance. I shall write to the noble Lord with an answer to his question about specific numbers as I do not have that detail in front of me.

My Lords, can the Minister say at what date the flying scrapheaps known as the Tristar aircraft will be replaced?

My Lords, our intention is to bring the future strategic tanker aircraft into service at the end of the decade. Therefore, the existing aircraft need to continue flying until those aircraft come into service.

My Lords, quite rightly, we focus on the requirements of the troops serving on operations in Iraq and Afghanistan, but that is not the only place where troops are serving. Can the Minister assure us that the same care will be taken to look at the requirements of those in Bosnia and in other such places who are subject to exactly the same sort of problems as have been raised in relation to Iraq and Afghanistan?

Yes, my Lords, I shall make that undertaking. Troop movements are crucial to all troops, wherever they serve on operations, as they affect the amount of time that troops have at home with their families. Improving that is at the top of our priority list. I have given the House the data which I think show that, with this level of operational tempo, the RAF does a very good job. Those aircraft are old—some of them go back to the 1960s—so we need to bring new aircraft into service as quickly as possible, as we are committed to do, and we must ensure that we provide the best possible service. The increased focus that the RAF has made on this, as I have just mentioned to the House, is something on which we shall keep a very close eye.

My Lords, why does the Minister think that the picture of the equipment and resources made available to our forces in Afghanistan and Iraq which the Government present is so different from the picture that comes from former senior and current officers in the armed services? Does he think there is a communication problem between him and our forces on the ground?

No, my Lords, I do not think there is a communications problem. I do not accept that a wholly different picture is being presented. The Government recognise the pressure on our Armed Forces; that is absolutely clear and we accept it. We also recognise that the environment in which our Armed Forces operate is changing at a faster rate than we have seen for a long time. That puts a lot of pressure on the Armed Forces as regards reforms, changes to equipment, tactics and procedures to meet the threat. I believe that we are doing a good job in responding to that. However, there are areas in which we need to improve. We are providing a very clear focus on taking action—for example, on the equipment side—to make those improvements. We listen very clearly to what the Armed Forces say to us at all levels, from a ministerial perspective and from the perspective of the Chiefs of Staff. It is important that we do so. There is no failure of communication.

asked Her Majesty’s Government:

What steps they are taking to ensure that the recovery of scrap aluminium sent from the United Kingdom to areas outside the European Union for recycling is carried out in an environmentally sound manner and to the standard required for recycling industries operating within the United Kingdom under the European Union integrated pollution prevention and control regulations.

My Lords, it is for producers, local authorities, waste management contractors and transporters to ensure that their waste is properly managed through all the steps in the recycling chain, including its final destination, wherever that may be. Defra wrote to all waste collection and disposal authorities in March 2005 regarding the illegal export of waste to European Union and other countries.

My Lords, I thank the Minister for that reply. That very guidance note from Defra has been part of the problem. I understand, and the Minister should be able to confirm, that Defra said that if there was any oil on aluminium—more than 0.1 per cent—it had to be classified as contaminated waste. At the moment in this country there is higher car production than for many years, the greatest amount of aluminium is being recycled, and every car uses more than 100 kilograms, of which 90 per cent is recycled. By sending that aluminium abroad, as we are obliged to do because in our requirement that there be no oil we are exceeding the EU obligation, we are losing jobs and our economy is being damaged. Will Defra look again at that guidance note to see why we are going that much further than the EU demands?

My Lords, I am more than happy to do that. As the noble Baroness is aware from her membership of the All Party Group on the Aluminium Industry, this is a complicated issue. The note, with its annexes, is quite complicated, but the competent authorities in all the countries to which we export for recycling—no disposal is involved—have to follow environmentally sound rules and regulations. They may not be exactly the same as the IPPC regulations, referred to in the Question, but they are broadly similar. I shall have the note looked at again, given the detailed point that she has raised.

My Lords, further to the Minister’s Answer, is he aware that the United Kingdom exports almost four times as much aluminium scrap outside the European Union as the whole of the rest of the EU? Is there an explanation for this? If so, can the House hear it?

My Lords, there probably is an explanation, but it is not for the Government but the industry itself to give. People are carrying out a legal trade of export. It is all regulated. Aluminium is not a designated hazardous waste therefore we do not have all the figures we would have if it were.

We benefit a lot from the recycling of aluminium wherever it is produced, because a huge amount of electricity is used to create it in the first place; therefore, the more that is recycled the better. Where it is recycled, however, is essentially up to the industry.

My Lords, does the Minister agree that the Government have a role in ensuring that much more aluminium from small things such as drinks cans is recycled? It is currently less than half. As the Minister said, the environmental issue is that it takes about 90 per cent more energy to produce primary aluminium than it does to recycle it and it can be recycled many times.

My Lords, the noble Baroness is quite right. The figures for aluminium can recycling are 2 per cent in 1989 and 42 per cent in 2001—that figure is somewhat old, but it is still less than half. Recycling aluminium consumes only 5 per cent of the electricity and energy used in primary aluminium production. A kilogram of recycled aluminium saves six kilograms of bauxite, four kilograms of chemicals and 15 kilowatt hours of electricity. There is a lot to be gained and, I understand, no limit to the number of times aluminium can be recycled.

My Lords, have the Government had discussions with the industry about the conflicting views on the need to save energy and on transporting a relatively heavy material out of this country to be recycled? Perhaps the Minister could have a word with members of the industry. If he did, and they were receptive, we might save jobs in this country and, of course, reduce CO₂ and other emissions.

My Lords, this is a matter of international trade. We use about 900,000 tonnes of aluminium; we only smelt about a third of that. There is a gap in what is known to be lost: too much is going into landfill from domestic waste. There is a lot to be gained in looking at the flow. China and India, where it is going, will of course use that waste as a primary product. As the noble Lord says, however, CO₂ emissions from travelling around the world must be taken into account.

asked Her Majesty’s Government:

Whether they expect the European Union targeted measures against Zimbabwe to be continued when they expire in February 2007.

My Lords, the Government expect that targeted measures against Zimbabwe will be renewed in February. Since their rollover last February, the situation in the country has only worsened: peaceful demonstrations have been violently disrupted, the economy continues to be grossly mismanaged and the opposition and independent media remain suppressed. Until democracy, the rule of law and full human rights are restored in Zimbabwe, it is right that Mugabe and his regime should continue to be isolated by the international community.

My Lords, can the Minister say whether there is any substance in media reports of the past few weeks that a number of European Union countries, particularly Portugal and France, are in favour of abandoning the sanctions? Have not the people of Zimbabwe shown enormous courage in the past few weeks in demonstrating peacefully on the streets against the Mugabe regime? They have suffered from being thrown into prison cells and having their legs broken and have been beaten up.

Is it not also true that other countries have subscribed to the sanctions against Mugabe which the European Union has adopted? Does that not mean that if sanctions were to be abandoned, we would be letting down both those countries and the people of Zimbabwe with whom we should have solidarity? The European Union would be letting itself down by spoiling its own reputation and authority in the wider world.

My Lords, the Government wholeheartedly agree that we must maintain solidarity with the brave people of Zimbabwe. Regarding the weakening of the European Union position, I maintain that the EU stands firmly in agreement on the crisis in Zimbabwe. We fully expect the ban to be renewed in February. Other countries, as the noble Lord rightly says, impose sanctions; but from our perspective as members of the European Union, it is particularly important to maintain the solidarity of the European Union as a whole.

My Lords, will my noble friend confirm the importance of sustaining the established and consistent policy, both of Her Majesty’s Government and the European Union, on targeted measures against the Mugabe regime? Will she and her ministerial colleagues try to ensure that there is no breach of established policy under any EU presidency? Is my noble friend aware that if, for instance, Mugabe were to go to Portugal for the EU-Africa conference in the second half of this year, it would hold up the EU policy to derision and give his regime an unwarranted propaganda victory? That would hugely dismay and demoralise the courageous members of the Movement for Democratic Change, who are trying to secure peaceful change in their country. Consistency is essential; consistency from the whole Union is vital.

My Lords, the Government agree that we absolutely must maintain the targeted measures that have been agreed and will continue to be agreed. There must be no breach of established policy. My noble friend is right to say that consistency is essential.

My Lords, will the Government propose to the German presidency that additional measures be taken to inform African leaders and the public in African states, particularly in SADC, that there never have been European Union sanctions against Zimbabwe, but that there are sanctions against 126 named individuals whose policies are to undermine human rights, freedoms and the rule of law? Has the Minister seen the remarks attributed to ex-Minister Jonathan Moyo last week on radio SW Africa, when he said that even Zanu-PF leaders are beginning,

“to ask fundamental questions about the state of the economy, the state of the country, and … the state of their party”?

Is it not therefore time to strengthen the restrictions on the ability of those people to travel out of the country or to secrete in foreign banks the assets that they have stolen from their people?

My Lords, the noble Lord is absolutely right to say that when talking of sanctions we are talking of a travel ban, not of economic sanctions. We will certainly make that clear to our colleagues in the African Union. Indeed, the travel ban has been strengthened four times since 2002, to include others who have supported the Government of Zimbabwe’s efforts to suppress the people. As the noble Lord said, nothing has changed and the situation, as Jonathan Moyo pointed out, is worse. We will discuss with our European partners how the renewed common position should reflect this.

My Lords, can the Minister suggest any ways in which Zimbabwean civil society organisations, particularly those in this country, might play a role in helping to sustain or maintain the European Union sanctions against Zimbabwe?

My Lords, as the noble Baroness will be aware, the Government are absolutely firm regarding other Governments who will, I am confident, sign up to the renewed travel ban. If they are perceived to be, as it were, a bit wobbly then perhaps partner civil society organisations in other member states could lobby their own Governments to ensure that they do indeed remain firm.

My Lords, the need for support from civil society is an important dimension. In a letter to EU Commissioners before Christmas, John Monks, general secretary of the European Trade Union Confederation, and Guy Ryder, general secretary of the International Trade Union Confederation, wrote:

“It would send completely the wrong signal if the EU backed down on sanctions now”.

They went on to point out that whether the sanctions should be revoked or renewed ought to be determined by measuring Zimbabwe’s progress toward the benchmark originally set by the EU under the EU-ACP Cotonou convention. Will Her Majesty’s Government ensure, as I hope they will, that these representations by the international trade union movement are circulated to all members of the Council of Ministers and that we ensure proper consideration is given to their concern?

My Lords, the Government welcome the strong statement by John Monks and Guy Ryder on behalf of the International Trade Union Confederation. I see no problem in ensuring that each member state receives a copy to ensure that they remain firm on the issue of sanctions.

My Lords, in view of the fact that the EU sends the lion’s share of the international community’s $250 million aid to Zimbabwe, most of which goes on emergency feeding programmes, would it not be irresponsible to expect the people of the EU to continue to provide aid at that level and yet lift restrictions on those who engineered the disasters that that aid is meant to respond to? Will my noble friend and the other members of the Government remind our more reluctant EU allies of the huge amount of humanitarian aid needed as a result of the Zimbabwean regime’s wanton destruction of housing, industry and agriculture?

Yes, my Lords, it would indeed be irresponsible if the European Union were to renege on its sanctions now. I am confident that it will not, but I am sure that Her Majesty’s Government will continue to make the very strong case in favour of sanctions. In respect of aid being given to Zimbabwe, of course we must maintain that aid, but it should be balanced by sanctions, and we must ensure that the people of Zimbabwe are not harmed in any way.

My Lords, will the noble Baroness ensure that in discussions with our European Union colleagues the depredations of the regime are not lost sight of, not least the reduction in life expectancy in Zimbabwe, especially among women, and the levels of child mortality and malnutrition in the country? Will she ensure that the remarks of the Archbishop of Bulawayo, who spoke to Members of both Houses just before Christmas, are drawn to their attention? He said that while the regime continues its depredations against the people of Zimbabwe then the targeted restrictions should continue.

Yes, my Lords, it is indeed deplorable that life expectancy in Zimbabwe is the lowest in the world at present. I believe it is 34 years for women and 37 years for men, which is quite extraordinary. It is incumbent on us in the European Union to make those abominable facts known to the widest possible community and to ensure that sanctions are maintained. We keep repeating that in our discussions with our European partners.

My Lords, will Her Majesty’s Government ensure that those who have been involved in political activity in Zimbabwe will not be returned or deported to Zimbabwe if they are very likely to be persecuted by the Government of Zimbabwe? Does she recognise the extraordinary courage that many of those men and women have shown and how unfortunate it would be for our appearance in the world if we were to deport people who had been involved in that way in the battle for democracy?

My Lords, I certainly pay tribute to the extraordinary courage of those men and women. Of course, the UK must be allowed to operate a robust and fair asylum system, but it must be fair, and we strive to ensure that our asylum system is fair in every way. I am sure that all noble Lords agree that it is right that we provide protection to those in genuine fear of persecution.

My Lords, under the sanctions as they have operated in the past, we have become accustomed to hearing of people on the stop list being in other European countries and their presence being explained by the fact that they are attending some exempt conference or other. When the sanctions are rolled over, can the Minister undertake that the Government will attempt to close as many of the loopholes as possible, to prevent the ludicrous situation suggested by the noble Lord, Lord Kinnock, just a moment ago, developing?

Yes, my Lords, I can ensure that the Government will do their utmost to minimise the loopholes. It is extraordinary that such loopholes exist, but they do. The EU Zimbabwe travel ban contains standard exemptions that enable travel to the EU by banned Zimbabweans in a few, narrowly defined cases. We do our utmost to ensure that they are narrowly defined, because to see people such as Grace Mugabe stomping up and down the streets of the Côte d’Azur is an affront to humanity.

My Lords, is it not clear from this valuable discussion that, while we must be consistent and keep up the pressure, the so-called targeted sanctions are not very effective in hitting the right target? It appears on the contrary that, while the ruling tyranny in Zimbabwe is maintaining its position and even strengthening it, more women and children are dying, there is more starvation, more and more other horrors and atrocities are being committed, the country’s economy is less than half the size it was a few years ago, and a great deal of suffering is going on? As we renew pressure on Zimbabwe, should we not look at the other, shadow sanctions which are hurting the poorest people, particularly the withholding of some loans from international institutions and development banks and other investment? Should we not try to refocus the whole of our operation vis-à-vis Zimbabwe in ways which hit the criminals who are ruling the country and do not hit the poor people who are starving in very large numbers and longing for greater help, as the noble Baroness, Lady Whitaker, and the noble Lord, Lord Alton, rightly identified?

My Lords, the noble Lord is absolutely right that the sanctions must hit the regime and not the poor people of Zimbabwe, who have to suffer continual atrocities. However, the EU sanctions put real pressure on the regime. They ensure that Mugabe remains isolated—hence his attempts to seek financial lifelines from China and Iran to buy time. It is important to point out that the targeted sanctions have the support of the democratic opposition and the NGO community in Zimbabwe. Mugabe and his regime detest the restrictions on their movement. Therefore, they can be only a good thing. However, I hear what the noble Lord says, and I shall take back his comments to the Foreign Office.

My Lords, I beg to move the Motion standing in the name of my noble friend Lady Scotland of Asthal on the Order Paper.

Moved, That it be an instruction to the Grand Committee to which the Corporate Manslaughter and Corporate Homicide Bill has been committed that they consider the Bill in the following order:

Clause 1,

Schedule 1,

Clauses 2 to 20,

Schedule 2,

Clauses 21 to 23.—(Lord Bassam of Brighton.)

On Question, Motion agreed to.

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.

House in Committee accordingly.

[The LORD SPEAKER in the Chair.]

moved Amendment No. 1:

I declare an interest as an employee of Age Concern England. I also take the opportunity to welcome the noble Lord, Lord Hunt, back to his former position as Minister for Health. I can think of nobody better to be in that position, not least because we have the tantalising prospect of discussing patient involvement and patient forums in the near future. I know that those are subjects very close to the noble Lord’s heart.

Before following up on a number of the points made by the noble Earl, Lord Howe, about why we should have principles on the face of this Bill, it is important to address one other, more fundamental, question. What is the purpose of mental health legislation? I ask because just before Christmas the noble Baroness, Lady Royall of Blaisdon, kindly arranged for noble Lords who are interested in this Bill to meet some of the people responsible for its drafting. One of those people made a quite extraordinary statement. He said that the purpose of mental health legislation was to give practitioners the tools that they need to make people better. That is a partial truth and, because it is a very partial truth, quite a dangerous statement.

As the noble Earl, Lord Howe, pointed out, this is a subject with a long-standing history of sensitivity around such matters as compulsory treatment and the detention of individuals. The purpose of mental health legislation is to set the ethical framework and agreed standards, held by society to be true, for people who are perhaps among the most vulnerable of its number. As such, it entails questions of autonomy, safety, liberty, the role of the state, science and clinical judgment. The role of mental health legislation is to provide the framework by which clinicians and their activities are judged. Given that the architects of the Bill have chosen to project it in such a limited and partial way, it is our view on these Benches that there is, perhaps, a greater need than ever to have on the face of the Bill a statement of principles that encapsulate the framework within which practitioners, patients and other individuals will seek to make what we all recognise to be extremely difficult judgments on a daily basis.

The noble Earl, Lord Howe, has talked about the importance of Article 5 of the European Convention on Human Rights—the right to liberty and security of the person—as the key piece of European legislation into which ours must fit. Ever since 1999, the Government have received advice about the ethical nature of any future mental health Act. In 1999, the Richardson committee stated that any new Act should be based on principles of autonomy and non-discrimination. Importantly, that report was accepted by the Health Select Committee.

As the noble Earl, Lord Howe, also said, there are immediate parallels to which the Committee may look. The Mental Health (Care and Treatment) (Scotland) Act 2003 begins with a statement of principles to which practitioners must have regard. More than that, the Government’s draft Bill of 2004, which was the subject of the work of the Joint Scrutiny Committee, included at its beginning three principles—that patients should be involved in decision-making, that decisions should be made fairly and openly, and that interference to patients in providing medical treatment and restrictions imposed on them during treatment should be kept to a minimum to protect their health and safety and that of others. So the Government themselves, in 2004, could see a case for having principles included in the legislation.

In the run-up to this Bill, there has been a fair degree of discussion about whether principles should be included in the Bill, as one would expect. The argument that has most frequently been deployed by Ministers is that principles may lose their authority or appropriateness over time, and if they are on the face of the legislation rather than in a code of practice they become more difficult to change. I do not accept that argument. Principles should be enduring. But even if they change—and sometimes they do—they are usually changes of such importance that they should be debated by Parliament.

Over the past 30 years, the attitude of society and of the psychiatric profession to homosexuals, for example, has changed. Homosexuality is no longer defined as a mental disorder. Rightly, that change was the subject of widespread discussion in society and Parliament. I do not believe that any of the principles we put forward in this amendment would be any less durable. Nor should any change to them be of such minor importance that it should not come before Parliament.

Why should principles be on the face of the Bill? The key issue is safety. If we have principles that set the parameters within which all clinical judgments are made, patients and practitioners will have more faith in the safety of those decisions. As a consequence, people will be more likely to avail themselves of treatment. Throughout discussion of the Bill, we will return time and again to the issue of safety and what will help or hinder practitioners as they seek to reach those who are dangerous and reluctant to come forward for what remain stigmatising services.

We have the benefit of having been through so many drafts on this Bill that we have a lot of material with which to work. Commenting on the draft 2002 Bill, the Joint Committee on Human Rights said that the capacity of a code of practice to give sufficient protection to the human rights of patients in the decision-making process was unclear, and that it should be clarified by putting principles on the face of the legislation. As the noble Earl, Lord Howe, said, we also have other examples near to hand. We have principles in the Children Act 2004 and the Mental Capacity Act 2005—cornerstones to everybody who has to implement those pieces of legislation that specify what the legislation seeks to achieve and what considerations should be fundamental and underlie any actions. We have not yet heard why people who are subject to compulsory mental health legislation deserve less.

From these Benches, I welcome the Minister home to the health portfolio. I am sure that I speak in part for the healthcare community, which will be delighted at his appointment.

We all want to have confidence that this Bill will protect the public in so far as legislation can; that it will be respected, if not always liked, by service users; that it feels fair and just to relatives and provides an ethical set of principles within which professionals work. In trying to provide that ethical set of principles, we should go back to the inherent principles in this Bill and all mental health legislation since the Vagrancy Act 1714. That Act specifically included the “furiously mad” among those who should be detained in bridewells but specifically excluded them from the punishment meted out to rogues and vagabonds and set some rules as to how they were to be treated.

The primary purpose is to permit interventions to stop individuals from harming others or themselves should mental disorder impair their judgment to the extent that the usual psychological, moral and legal constraints no longer apply. Secondly, the purpose is to constrain those professionals charged with intervening. So in Committee today we are talking about the counterbalancing principles within which we take away freedom—and I remind noble Lords that this is almost the only time, outside the criminal justice system, when we do that. We must balance compulsion against what society offers to those compelled. There are other public health provisions to detain physically ill or aged people in the public interest, but they are now very rarely used, generally out of favour and many people think that they should no longer be on the statute book. At present, it happens about 46,000 times every year.

As the noble Earl, Lord Howe, remarked, every mental health patient knows about these powers and fears their use. Even people with quite mild depressive symptoms—I would guess that there are noble Lords in the House who have experienced those—sometimes feel as if they are going mad. They might lose control and be taken away under a section. When I mentioned pink forms in the House, everybody knew what they were for.

The Government have an extraordinary opportunity to set a new cultural context within which mental health services are delivered. They know that they have been, albeit unwittingly, the instrument that has managed at long last to unite service users, families, health and social care professionals and campaigning organisations to agree on some fundamental principles within which care should be delivered to those under compulsion. Although I know that there are healthcare professionals who support other parts of the legislation that I have my doubts about, we are all agreed—even those psychiatrists who have expressed support for some parts of the Bill—on the general principles outlined today.

We know that the Government are not against principles, because there are some in the draft code of practice. Indeed, the National Service Framework for Mental Health has a splendid set of 10 guiding principles. Nowhere in the framework document is there any statement that it does not apply to those under compulsion. They are reflected in many of the principles tabled in this amendment.

I understand that there has been much talk of this being an amending Act and that therefore there are clauses in the 1983 Act that might not be consistent with the new principles. My own trawl through the 1983 Act suggests that there is only one area, in Part IV, dealing with patients under criminal proceedings, which might not be entirely consistent, but it does not seem to be beyond the wit of man or the Government to introduce a small amendment to deal with them. This is such an important issue. I do not see any reason why in future principles for mental health should be abandoned because of one or two clauses that might need slight amendment. Principles should apply to those restricted as a result of criminal proceedings, if they have a mental disorder.

If the Bill is to contain the reciprocity of principles, which principles will we adopt? We have proposed here those that the Scots have found in their recent Bill to cover the fundamentals. They are very similar, with minor differences of emphasis, to those recommended in the Richardson expert report in 1999 and were supported by the joint scrutiny committee. Summed up, they are designed: to promote patient autonomy and involvement and, when possible, to provide choice within the necessary constraints; to respect and involve carers; to promote equality, non-discrimination and respect for diversity; to provide for the least restrictive or invasive alternative; to maximise the benefit to the patient and act always in their best interest; to clarify that the welfare of any child under the Act should be consistent with the principles of the Children Act; and to recognise that the state has a reciprocal duty of care to exchange necessary compulsion with the promise of beneficial care and support.

I first heard most of these principles outlined by the noble and learned Baroness, Lady Hale of Richmond—now our first woman Law Lord, but then plain Brenda Hoggett—at a joint meeting of psychiatrists and lawyers in 1989. I wrote them down, right then. Those who go back to see what Brenda Hoggett wrote then will see that these principles have been around, talked about and supported by those who need to use mental health legislation for a long time. They are entirely consistent with the Government’s wish to improve public safety. I hope that, with so much to gain and every patient, every caring family and professional urging them to accept these principles on the face of the Bill, the Government will accept the amendment.

I do not normally speak on something like this, but I will for just one and a half seconds. When my noble friend Lord Howe was talking, I watched with fascination the enraptured looks of the people opposite, who were listening to him with immense care. The same applied to the noble Baroness on the Liberal Democrat Benches. In this Chamber, we have a wealth of knowledge, experience and know-how. All I am begging the noble Lord to say is, “My mind is not totally made up, and I will listen to the expertise that there is in this Chamber”. From the faces that I saw, there is a real interest in making the Bill as exactly right as human beings can make it. Will the noble Lord please instruct the Whips’ Office to get their tanks off his lawn if he is convinced by something that someone—other than me, who knows nothing about it—says? That is the only thing that I will say on this Bill.

My noble friend Lady Murphy mentioned rogues and vagabonds, which reminds me that today is the 30th anniversary of my very last performance at the Whitehall Theatre, in a play called “Fringe Benefits”. Today we are not talking about fringe benefits but about something that goes absolutely to the heart of the Bill, and which will decisively influence how it is used. Therefore, I am very pleased that the noble Lord, Lord Hunt, can be welcomed to his new ministerial brief with a debate on such a key issue.

Principles are important, and they deserve to be on the face of the Bill because they make it clear to practitioners, tribunals and, importantly, service users and their families and carers what standards are expected from mental health law. This argument was accepted by the Government in relation to the Mental Capacity Act. I served on the Joint Committee that scrutinised that legislation when it was in draft form as the Mental Incapacity Bill, under the chairmanship of the late Lord Carter, whose sad loss last month will be keenly felt in this House, in particular by those of us with an interest in disability issues. Lord Carter always took a great interest in disability, influenced in part by his own family’s experience. He was a great ally in improving a number of recent pieces of legislation on disabled people. He and I were the only people to serve on all three of the Joint Committees that scrutinised the draft Disability Discrimination Bill, the draft Mental Incapacity Bill and the draft Mental Health Bill, Lord Carter very ably chairing two out of the three. I am certain that we shall miss him in the months and years to come.

One of our key recommendations in respect of what is now the Mental Capacity Act 2005 was that guiding principles should be on the face of that legislation. We were influenced in this, as noble Lords have heard, by the evidence on the usefulness of principles in the Children Act 1989 and the Adoption and Children Act 2002. The Government accepted that recommendation, and the Mental Capacity Act now contains at the beginning a very helpful statement of principles. When I served on the Joint Committee that scrutinised the previous version of the Bill, one of our recommendations was that principles should appear in this legislation. We said then that,

“putting principles on the face of a major piece of complex legislation serves a clear purpose, in that it helps to make clear to everyone implementing the Act, what the legislation is trying to achieve and what considerations should guide their actions”.

It is fair to say that the Government were not sympathetic to very many of our recommendations, but they have agreed with us on this, and in their response to our report they accepted that principles ought to be set out in the Bill.

I am not quite sure why the Government have now changed their mind. I understand that they believe that it would be difficult to put new principles into an existing Act, but surely that is only the case if such principles are inconsistent with the legislation in question. In this case, we are making wholesale amendments to the Mental Health Act 1983, which presents an ideal opportunity both to set out a clear statement of principles and to iron out any consequent inconsistencies. It is hard for me to imagine circumstances in which treating patients less favourably than non-patients might be in line with best practice, but I am not a practitioner, and I may need to be set right on that and on all of the principles in Amendment No. 1. However, it seems to me that if the Mental Health Act as it now stands is inconsistent with the principle of patient participation, then it is the Act and not the principle that is at fault. Again, if the Mental Health Act as it now stands is inconsistent with the principle of non-discrimination,

“on the grounds of age, gender, sexual orientation, race, colour … language, religion or national, ethnic or social origin”,

it is the Act and not the principle that is at fault. The same goes for all the important principles set out in the amendment.

It is fortunate indeed, then, that this Bill gives us the opportunity now to amend the 1983 Act both to include principles and to ensure that it meets those principles. Perhaps the Minister could let us know precisely which parts of the Bill violate those principles and then bring forward amendments to change it accordingly. Alternatively, perhaps he could let us know precisely which of these principles he thinks should be violated in the discharge of mental health legislation.

I support the amendment. What strikes me is that, although the current Mental Health Act was never intended to sow fear into the hearts of the black community, to which I speak daily, or into the hearts of many people who have a mental health challenge or know someone who has a mental health challenge, it does sow fear into the hearts of those communities.

I should declare my interest as an employee of the organisation Turning Point, which provides significant services to people with mental health challenges. I know from our service provision and from talking to our clients how critical this amendment is to the confidence that many outside this House will have in whatever we do next with the Bill. The principles are crucial and I hope that one of the easier things that the noble Lord, Lord Hunt, will have to do in his new job is to agree with us on that. Once we have agreed the principles, the rest becomes a little easier. To be honest, I do not understand why the Government would seek to gainsay this argument. This is one of the few occasions on which the voluntary sector, the royal colleges and many other organisations have been in total agreement. They accept that this set of principles—and one could argue about principles from here to kingdom come—are crucial.

Let me explain a little why I support the amendment. We have an opportunity to set in stone how this legislation should be applied and how it should affect the lives of hundreds of thousands of our fellow citizens. As has been stated, the legislation is likely to last for several years, so we may not get an opportunity to do this again. The principles are a vital safeguard to ensure that clinicians and others responsible for administering the legislation do not drift too far from the original intentions. It would be a crying shame if in years to come we were forced to debate mental health in a similar climate to the one in which we are currently debating it. This is a crucial opportunity to ensure that mental health legislation that allows for compulsory care is applied in the right way in the first place, before being subject to challenge. The current Mental Health Act has been subject to a number of successful challenges under the Human Rights Act 1998 precisely because of its lack of principles.

Let me refer to some of the specific principles that are being suggested. One is to take note of,

“the present and past wishes and feelings of the patient”.

I do not mind telling noble Lords that I have had several conversations with people using Turning Point’s mental health services and in my role as co-chair of the Government’s Delivering Race Equality in Mental Health Care strategy. They have a huge fear that, if or when they become subject to the Act, their ability to make decisions about any aspect of their care—even those which do not relate to compulsion—will simply not be respected. They fear not being consulted or included, and that undermines their dignity and confidence in approaching the mental health services, including voluntary services, for help. For example, this principle is relevant to concerns about levels and types of medication: it would be especially reassuring to individuals to know that their views on medication and its side-effects—a huge issue for people in the mental health system—could be taken into account.

I am aware that my noble friend Lord Patel of Bradford will put forward amendments, which I hope to support, to strengthen the race equality and diversity issues in the Bill, but I, the Government and all noble Lords know that people from black and minority-ethnic groups are discriminated against in the mental health system. The Act affects them disproportionately. We have already said in this House that reports such as Breaking the Circles of Fear and others describe people’s fear of mental health services, which, in any other situation, would be a cause for outrage and much concern. Such fears are very real. In this climate and in the light of tangible evidence of overuse of the Mental Health Act, the onus is on the Government to demonstrate in the Bill that the new mental health legislation will not discriminate against BME groups. Putting a principle in the Bill about non-discrimination and respect for diversity is essential in achieving that. Such a principle will support, rather than undermine, the fundamental aims of the delivering race equality strategy—for example, more appropriate and responsive services—and the vital progress being made outside the Act in projects such as the DRE.

It is important to have principles in the Bill and not just in the code, as we know that that will help to ensure that legislation is used appropriately. This legislation is going to be around for a lot longer than many of us. Principles are a crucial safeguard and it is critical that they have statutory force. They will give more confidence and stronger guidance to tribunals and lawyers faced with interpreting the legislation, to practitioners concerned about how to implement it, and to people who may be subject to the Act and who are worried about how it might affect them. They would also set and help to raise ethical standards in mental health care and achieve greater transparency.

I wish to comment further on some specific principles and turn, first, to the importance of patient participation. The value of service users’ involvement and participation in their care is widely recognised in voluntary mental health provision and other areas of healthcare. When the context is one of using compulsory powers, it is all the more important that service users subject to the Act are fully involved as much as possible at all stages of their assessment and care. That is likely to enhance their engagement with practitioners and, therefore, treatment outcomes. I give as an example the case of John, who has written a crisis plan for mental health professionals to consider if he becomes unwell again in the future. It includes asking whether, if possible, when he is admitted to hospital, he may be accompanied by his father rather than a social worker and the police, and it asks that he should not be taken to the locked ward where he has had bad experiences in the past. This makes John feel that he can participate in what can be a highly traumatic sectioning process.

My second point concerns providing the necessary information and support to enable participation. In order for their involvement to be effective and meaningful, service users should be given all the necessary information about how to lodge an appeal to mental health review tribunals. We assume that people know these things but, in fact, in many cases they are simply lost in the system and do not have the information. People should know how to contact patient advocacy services and have information about their medication. Information should also be provided in a form that they can understand, taking into account the needs of those with literacy problems or the increasing number of people whose first language is not English.

I support the amendment in the context of a Government who have already done a great deal to alleviate the conditions and perceptions of disability and mental illness. I am convinced that a list of guiding principles is crucial and should be inserted into the Bill. In that, I am supported by Mind, of which I am president, and by many other expert and experienced mental health charities.

The principles are worth restating, even in headline form. The list shows both the ambition and the centrality of the guiding principles. They concern patient participation, the right to information, autonomy, respect for carers, the availability of a full range of options, equality with people who are not patients, racial equality, non-discrimination, respect for diversity, the maximising of benefit, child welfare and reciprocity. Moreover, there should be an overall requirement in the Bill for the least restrictive alternative, including informal treatment and care.

Why not put the principles in the Bill? Why put them in the code of practice, but not in the Bill? Why not, when these principles will serve a vital purpose for practitioners, many of whom—for example, the Royal College of Psychiatrists—support this, accede to their wisdom and put the principles in the Bill where both practitioners and patients can see them equally? Why not be guided by the democratic option? The Government’s objections seem to be merely defensively technical. It would be a nailing of colours to the mast: a clear and encouraging act of faith, evidence of conviction and purpose worthy of, at its best, a fine, liberalising Government.

Reiteration follows, but I contend that reiteration is evidence of widespread concern and strong, well informed feeling across the spectrum. The amendment is of crucial importance. Principles in the Bill should and will raise ethical standards in mental healthcare by guiding practitioners and lawyers in the implementation and interpretation of the law. That will also improve people’s confidence in the legislation, particularly those who may be subject to it. We particularly need principles in a law which authorises the use of coercive powers, to guard against expedience, discrimination and abuse, and to encourage proactive efforts in favour of patients’ rights and well-being.

Principles should not be left to the code of practice, where they could be changed without Parliament’s agreement and would carry less weight. If the Mental Health Act becomes incompatible with any of these principles, those of its aspects should be amended. Such essential principles should be at least as enduring as the legislation. For example, principles of participation, right to information and patient autonomy would all help to counter the kind of situation where people are, or feel, coerced into agreeing to treatment, or are effectively told that there is no point in refusing. In a Mind survey of people’s experiences with ECT, over half the total sample and one third of those who had had ECT most recently were not aware that they could refuse to consent to the treatment. People detained under the Act who consent to treatment do not get the second-opinion safeguard.

The following quotations are from people who had had ECT in the previous six months not many years ago:

“I was told that as I was on a Section 3 … I had no rights”.

“If I had known I had the right to refuse, I would have done so. My understanding was that I had no choice in the matter and that they could do it by force”.

On racial equality, non-discrimination and respect for diversity, racial inequalities in mental health have been documented in the “Count Me In” census of 2005, particularly for African-Caribbean peoples, including higher rates of detention. That needs tackling at every level, including the guiding principles in the Mental Health Act, because of the unequal treatment that could be carried out under the Act and because it will operate in circumstances where inequalities already exist. The existence of race relations legislation does not obviate the need for inclusion in this Bill. Those rights and duties should be reinforced by the Mental Health Bill, not treated as being taken care of elsewhere.

My final example refers to something that will come up again and again: patient autonomy. The Mental Health Act clearly restricts patient autonomy by authorising the use of compulsory detention and treatment. That makes it all the more important to include a principle that people should retain as much autonomy as possible. They may have decision-making ability in many of the areas where decisions must be made. For example, it may be necessary for someone to receive treatment under compulsory powers, but they may have views and knowledge about which treatments have previously helped or harmed them. Alternatively, there may be activities or therapies available which the patients would be willing to explore and over which they could be offered real choice, rather than either not having them or having them presented as part of a compulsory package. People should be supported to make their own decisions where possible and given the same choices as people with physical health conditions. Autonomy should be curtailed only to the extent that it is absolutely necessary, and making that a principle in the Bill makes this clear.

I hope that my noble friend seizes the day and accepts this amendment. I urge the Government to take full note of it. Accepting this amendment would go far to help clarify and reassure those in an area which is, at last and thankfully, ceasing to be an area of darkness.

I support the amendment. I am among those of your Lordships who would like to welcome back the noble Lord, Lord Hunt of Kings Heath. I have agreed with his views on a whole range of issues over many years, and it only remains for him to agree with me for us to arrive at a satisfactory solution.

I have it in mind that by the time the Bill becomes law and is implemented it will be about a quarter of a century since the passing of the Mental Health Act 1983. It might well be another quarter of a century before we have the opportunity to set out fully in legislation the principles that we believe in and to make the improvements that we seek within primary legislation. So we need to be bold and to establish in this Bill certain key principles that will stand for many years and bring a good deal of confidence back into mental health provision.

I am for a bold approach. If in fact some of the principles set out in the amendment do not exactly match some provisions in the 1983 Act, then we should make some small change in that Act to make it possible to adopt this amendment within the Bill. I really want to see this established for the medium-term; that would be good for the mental health community as a whole.

I will refer briefly to three basic points arising from the amendment. First, there is,

“the importance of the patient participating as fully as is possible”,

in the discharge of the activities that concern him or her. We should emphasise that important point and set it out right at the beginning of the Bill. We then have the reference in the principles to carers. If we cast our minds back only five or 10 years, there would have been no reference to carers, who were very much on the margin. There has been a huge change of attitude in that area. I was a carer for many years and know what the attitudes are. It is important to get the views of the carer set out in the principles.

Another important point is the question of separate treatment of children or young persons. We are coming to amendments, to one of which I have put my name, about the age appropriate setting. I really hold that view and would therefore like to see it in the principles.

Lastly, there is the question of the,

“reciprocal duty to provide treatment and support”.

That reflects Amendment No. 55, which stands in my name and to which we shall come eventually. There is a widespread feeling now that this is what we believe in. We have not expressed it very well before. Let us express these principles in this Bill, take a bold step and get it clear. It will last for a long time, and we shall all welcome that.

I start by wishing my noble friend Lord Hunt well in his new job. I am sorry if my departure has caused him to take a crash course on the Bill, but he is of course well versed in the NHS and I am sure that he will cope well. Just to reduce expectations around the Committee, let me reassure my noble friend that I am not about to say anything that I would not have been prepared to say if I had been in his place.

I understand well the arguments against putting a set of principles into the Bill, which after all amends the 1983 Act and does not start afresh as the original draft Bill did. If at this stage we put any set of principles into the Bill, it will require the parliamentary draftsman to comb through the rest of the Bill to ensure that all its provisions are totally consistent with those principles. I detected a slight feeling among other noble Lords who have spoken that this would be a simple job to do in a couple of hours on a wet afternoon in January or February, but it is a bit more complicated than that.

The longer and more complex the list of principles, the more arduous the task of ensuring the compatibility of the amending legislation with those superimposed principles, which is what they are at this stage in the legislation. This is a real practical consideration that cannot be wished way. Many people who criticised the original Bill argued for a simple amending Bill, so, to some extent, they cannot have it both ways. The Government have gone for a simple amending Bill rather than the original new blockbuster Bill starting from scratch in which the principles were to be set out. This is a different set of circumstances. An amending Bill makes it inherently more difficult to superimpose a set of guiding principles.

In practice, it is easier to place those guiding principles in the statutory code of practice, which has been a little too easily dismissed in the debate so far. Those guiding principles would be in a code that has statutory force and would be taken account of by the courts. I have to let the Committee know very gently that practitioners do not assiduously study the legislation passed in this House or the other place. They tend to turn to the code of practice for their guidance, which is what it is for. So putting principles in the code of practice is not a lesser option, but is a practical option for shaping the behaviour of practitioners. From listening to the debate so far, I sense that many speakers want to shape the practice of practitioners. The code of practice is one of the places, if not the main place, where we can influence and shape the behaviour of practitioners.

I understand only too well that many people would like to see guiding principles in the Bill. I can see why they want that, but I have some difficulty with the approach adopted by this amendment. I am not completely convinced that everything in it is a guiding principle. Some provisions simply urge practitioners to balance a number of potentially conflicting considerations—for example, paragraphs (d), (f) and (j)—whereas paragraph (g) is a guiding principle. The paragraphs are not consistently framed as principles; they may well be good statements of intent, but they are not necessarily guiding principles. I also have some difficulty with how one would apply paragraph (c) as currently drafted. It embodies a noble aspiration, but it is not necessarily one that is easy to apply as presently framed.

I recognise that this debate shows that a considerable body of opinion is very attached to the idea of placing guiding principles in the Bill and that much of the opposition to the Bill in its present form might be abated if we could fashion a workable set of key principles to put in the Bill. If we are to move down this path—and at present I am not yet convinced that it is practical to do so—I favour having genuine principles like the headings for the guiding principles in the statutory code. Indeed, I would much prefer the Bill to limit itself to a minimum list of headings for principles that the code should spell out. They would still have the force of law, but that would make it easier to recast the code if opinions and circumstances change.

Perhaps I may briefly intervene before what I know will be a very important speech by the noble Lord, Lord Winston. A number of noble Lords have said that Section 1 of the Scottish legislation of 2003 contains a statement that is very similar to that put forward by my noble friend and others. Does the Minister have any news of how that legislation is going? How is it meeting the needs of Scotland and has there been any legal challenge to it? The Scottish Act refers to the whole of mental health legislation and only Part 7 relates to compulsory detention, so I ask him only about that. The noble Lord, Lord Warner, clearly sees the problems that that will arise as a result of this amendment—I suspect that he saw them at Second Reading. He made a helpful speech. I wonder whether the Minister’s reply will fit in well with it. It would be encouraging if it did. Will the Minister tell us what the news is from Scotland? The Act there has been in operation since October 2005. There must be some evidence of whether the problems which the noble Lord, Lord Warner, sees have arisen.

I too offer my hearty congratulations to the noble Lord, Lord Hunt, on taking his place back at the Department of Health. It is a pleasure to see him again. I remember with fondness briefly offering him refuge in my office after his previous resignation in the House of Lords.

Perhaps I may tell noble Lords a short story. Some years ago, a young female employee of Imperial College—she was a brilliant young scientist who was working on the ovary in my laboratory—ended up with a quite severe bipolar disorder, with alternating depression and mania. After a while, she became completely impossible at work and caused great disruption. She eventually gained inappropriate access to my laboratory, against the wishes and the instructions of the university, and caused mayhem. One morning, at about 6.30, she rang me at home in huge distress, crying and screaming that they had come to section her. I said to her, “Hang on, just calm down. Speak to me in a calm voice and, above all, speak to the people who you think have come for you in a calm voice”. She had great difficulty in doing that. What she saw as an attack on her, that complete ignorance and the notion that she had no autonomy at all in her state, had a massively bad impact on her health at the time, and on her attitude towards psychiatrists for a long time afterwards and to her subsequent care. Only with the greatest of difficulties could I persuade the medical people there who did not know her and who had come to section her to wait until I could arrive at her house to intercede on her behalf and to offer guarantees. Of course her behaviour had been unacceptable to the university, of course she was at risk of damaging herself, but her autonomy was easily lost in the culture which was present.

I know my noble friend Lord Warner has said that it is massively difficult to change the drafting of a Bill if you have a preamble of this sort beforehand, but if that results in an injustice and in something which makes the law less adequate, it may be none the less necessary for parliamentary draftsmen to work not just for two wet days—if it takes six months, it is still worth getting the law in order. I want to congratulate the noble Earl, Lord Howe, on introducing this amendment. It may not be the final wording but it seems to me to be the absolute basis for something which must be in the minds of the carers when they consider sectioning a patient. This young PhD student is now a brilliant doctor of philosophy, working not in this country any more but in another part of the United Kingdom highly successfully. It was touch and go that her career was not permanently damaged because of the result on her health, and I beg the Minister to consider what he could do to try and come to an agreement to put these principles into a position where they might be used.

I identify myself with the sincere and widespread welcome to the noble Lord, Lord Hunt of Kings Heath, on his return. We all know that his experience and skill will ensure that he picks up this rather heavy baton on the run and is able to continue on with us.

I was very moved by the comments of the noble Lord, Lord Winston, who described a situation very familiar to me, as a consultant psychiatrist quite often on call in Belfast, of the difficulties that arise when one has to confront the pink forms that the noble Baroness, Lady Murphy, referred to on another occasion. What he describes are the practicalities of working out the legislation that has been properly put in place. He has not described the principle. He adverted to the principle of care and concern, and to autonomy, understanding and so on. That can be written into a piece of legislation. What could not be written in was the requirement that the noble Lord, Lord Winston, should turn up. That is not something one can put in. That was a piece of practice that was occasioned by understanding and the principled approach. That is where there seems to be some confusion.

For me—perhaps some might think it a rather quaint notion—principles are things that you do not change very often; rather less than once in every 25 years in my view. Principles are the kinds of things that are fundamental, that you stick with, the kinds of things one is perfectly happy to put in a piece of legislation which might last for a generation. Practice is a different matter. That is the sort of thing that may have to change in various circumstances, as has been described to us in this particular anecdote. It may have to change quite regularly and frequently. The principle does not change but how one applies it has to change if the principle itself is to be sustained and maintained. The principle is something transcendent with longevity. So when I turn to the code of practice—it is not a code of principles—and the principles that are in it, I find that it states that the status of the principles is the same as the status of the code as a whole. The principles outlined here are not transcendent but are simply in with all the rest of the stuff in the code—a code of practice, that is, not a code of principles. The whole point of principles is that they stand over and above everything else, and one can judge what happens afterwards on the basis of the fundamental principles. As the noble Lord, Lord Rix, says, a list of principles would have a decisive influence on the way in which the Bill is used.

In expressing my strong support for this amendment I salute the tone and temper, as well as the quantity, of the opening speech by the noble Earl, Lord Howe. From the moment we started discussing this very important Bill it was extremely important that we should all agree on the tone and temper of what the importance of this subject represented. I was particularly glad that, on the principle in proposed new paragraph (f), he talked about the need to ensure that, unless justified by the circumstances, the patient is not treated less favourably than a person who is not a patient might be treated in a comparable situation.

We have already drawn attention to two groups who might benefit from this: minority and ethnic communities, and children. There is a third group, which represents an enormous well of psychiatric morbidity in this country, and that is those who are in custody or in the hands of the Prison Service. It is unfortunate that the National Health Service assumed responsibility for mental health, as well as primary healthcare, in prisons only in 2003. Until then no provision for people suffering from mental health problems in prison had been made in the planning of the National Health Service. It is estimated that up to 500 prisoners each year might have needed to be transferred to special mental hospitals, but had to compete with the requirements of people from the community. Very often the prisoner lost out and became worse as a result. That, of course, is a public health issue.

Had this principle been enshrined in the original 1983 Act, and had Prison Service healthcare been subject to the National Health Service, the Act would have required that those in prison received—or be capable of receiving—treatment exactly equal to that received by those outside. It is important that this should be included in the principles at the start of this Bill because, if included, it tempers our judgment on many of the other issues in the Bill, which we will be discussing during the course of the amendments.

I should like to add one practical point, though not the one mentioned by the noble Lord, Lord Warner. It is surely axiomatic that the parliamentary draftsmen should work night and day to get a Bill of such importance absolutely correct—perhaps we should add extra parliamentary draftsmen to the task—rather than that we regard that as something to prevent it happening. My practical point concerns the provision of services to the people who require them as a result of this Act. I shall quote two statistics in support of that. In 1999 when this Government introduced a paper about what they called people suffering from dangerous and severe personality disorder—neither term being recognised by psychiatrists—it was said that there were some 2,500 in the country. Four hundred were in special hospitals receiving the treatment they required; 700 were somewhere in the community, possibly receiving some form of treatment; 1,400 were in our prisons, where nobody knew who they were and they were certainly not receiving treatment. That is one end of the spectrum.

At the other end, it was said by the Office for National Statistics in a report published in October 1998 that 70 per cent of all those in prison are suffering from some form of identifiable personality disorder. That is an enormous well. We must remember that all except some 35 of that huge number will come out and join the community. Therefore, we have a responsibility to use their time in prison to do something to help them lead useful and law-abiding lives when they come out. That is why it is so important that, in any Bill discussing mental health, the needs of those in custody are included so that provision is made for them as a result of that Bill, be that in principle or in practice.

I apologise for my absence from the first few minutes of this debate. It may assist the Committee if, as chair of the Joint Committee that considered the previous draft Mental Health Bill, I make some comments about this amendment, which I support. However, before I start, I welcome the return of the noble Lord, Lord Hunt of Kings Heath, to the Front Bench dealing with health matters. He and I go back a long way. We were dealing with health matters together long before either of us was a Member of this House. I have great respect for his judgment and I hope that I will not be disappointed later this afternoon.

To echo the words of the noble Lord, Lord Rix, I also mourn the passing of Lord Carter. Denis Carter made an invaluable, consistent and persuasive contribution to the Joint Committee’s deliberations. He is missed by a great many of us in this House. He was a good friend to many of us.

When he comes to respond to this debate, I invite the Minister to confirm that the inclusion of principles in this Bill, and therefore in the amended Mental Health Act 1983, is in order. I understand that it is within the Long Title of the Bill and perfectly in order. Therefore, I hope that we will not hear any more of the purported explanation that it is not possible to introduce principles in this Bill because it amends the Mental Health Act 1983. The constitutional position is irrefutable. It is possible to amend the 1983 Act in this way.

We have heard the argument that it would be difficult for parliamentary draftsmen to draft anything in time to achieve the purpose of the amendment, even if the amendment is imperfect. That is palpable nonsense. I happen to deal a great deal with terrorism legislation, which is a very difficult area. However, most of it is drafted overnight by parliamentary counsel. Several noble Lords in this House are ex-Ministers who have been Cabinet Members or Ministers at a senior level. Ministers frequently instruct parliamentary counsel to draft much more complex legislation than this literally overnight for the next meeting of a Standing Committee. If the amendment is imperfect, it is not far from the mark, and I apprehend that a couple of parliamentary counsel could probably finish it “between lunch and tea”, to coin a phrase.

My next point is a general one about mental health and mental illness. No doubt others in this House have also been in the position of having to face an entry into acute mental health issues concerning those near or dear to us. In my case, it fell far short of compulsory treatment, I am happy to say. For every family and every patient who enters into these issues, it is a very frightening experience. It is like walking into a completely dark cave with, if you are lucky, the slightest suspicion of light at the other side.

The particular problem with mental illness is that many if not most of the people who walk into that cave are highly intelligent. They are capable of understanding the principles surrounding their treatment. They do not all live in a permanent fantasy world. Most of them have long lucid periods in which they understand exactly what is going on. They are aware that they are ill but when they are sectioned they ask the clinicians—such as my noble friend Lord Alderdice, in Belfast—who go to their homes late at night, what their rights are, why they are being detained and what will happen to them. A stark illustration of that was given by the noble Lord, Lord Winston, in his very helpful speech, which put these issues into a human context.

We are talking about intelligent people who must trust the medical services they come into contact with, particularly if those services are compulsory. The dark cave must seem an even gloomier place, if that is possible, when the treatment is compulsory in the sort of circumstances described by the noble Lord, Lord Winston.

Principles in the statute enable the person concerned and those who have his or her best interests at heart to challenge their detention. We talk in this legislation about the liberty of the subject, and of detaining subjects who, in many cases, have committed no crime. They are simply severely ill and a threat perhaps to themselves and others.

I recognise that the courts are of course able to take account of codes of practice. Yet the influence of a code of practice upon a court, on a take-account basis, is quite different from the influence upon a court of principles in the statute. For the service user, for professionals applying the service and for the court determining the liberty of the subject, the literal imprimatur of inclusion on the statute is most important.

It may be said that this opens the floodgates of judicial review. That is sometimes said by Governments when they want to avoid putting some principle or other in a Bill. Let us not forget that judicial review requires the permission of the court to proceed to a hearing. In areas such as this, the courts are extremely conscientious to ensure that leave provisions are applied fully.

On the issue of whether practitioners pay attention to the statute and the codes of practice, I agree entirely with my noble friend Lord Alderdice. As a criminal barrister, I have a lot of experience of reading reports by and calling evidence from forensic psychiatrists who speak of the mental state of somebody who has been referred to them. I have seen Sections 37 and 41 of the Mental Health Act 1983 referred to on hundreds of occasions—and parsed in detail by the practitioners on not a few—to determine whether their patient falls within the provisions. It is rare to read in such a medical report or hear in such evidence reference to codes of practice.

A number of considerations persuaded me and the committee that principles should be in the Bill. I want to list a few of these because they are persuasive—indeed, formidable. We were persuaded by the Richardson committee in 1999, chaired by Professor Ginevra Richardson at King’s College, London, which said that principles should be contained in the Bill. We were persuaded by the Mental Health (Care and Treatment) (Scotland) Act 2003, which has already been mentioned. It has principles on its face.

I was at a meeting earlier today—kindly and helpfully arranged by the noble Baroness, Lady Royall of Blaisdon—at which a number of psychiatrists were present. The question was asked: if Scotland can have principles, why cannot we, too? The answer frankly astonished in its risibility—if that is the noun to go with the adjective “risible”. We were told that it would work in Scotland because,

“it is a small place, a village”.

I do not know what our Scottish friends will make of that—and I can see one or two feisty ones in the Committee now. But I reject it, especially because quite a few people live in Scotland who do not come from the village—who go to Scotland and then, unfortunately, become patients. Having the principles in the Bill would provide exactly the certainty that the Scottish Parliament found when it introduced this legislation.

We were persuaded by the Mental Health Alliance, which proposed that principles should be contained in the Bill. We were persuaded by the Minister of State, Rosie Winterton, who said in evidence to the committee that she was not opposed in principle to having principles in the Bill. As the noble Lord, Lord Rix, reminded us, in the Government’s response to the committee’s report, she accepted that principles should be included in the Bill. Nothing has changed in reality. I suggest that the burden is firmly on the Government to show beyond any doubt, if they can, why there is now a persuasive and convincing case for principles not to be included in the Bill.

We were persuaded, too, by the British Psychological Society; No Force UK; the Sainsbury Centre for Mental Health, which has done an immense amount of research in this area; Depression Alliance Cymru; Mind, of which the noble Lord, Lord Bragg, is the president, as he said earlier; Mencap; the Council on Tribunals, to which I shall come in a moment; Professor Thorneycroft; and Rowena Daw from the Mental Health Alliance. They all,

“emphasised the very powerful and important signal value of having clear and explicit guiding principles on the face of the Bill which set out the ethical standards that apply when a person is deprived of his liberty and autonomy under the Act”.

There is an absolute paramountcy in producing ethical legislation on this subject, and including principles in the Bill is a prime ethical consideration.

We were persuaded, too, by the Joint Committee on Human Rights which, in its 25th report in November 2002, recommended that principles be clarified in the legislation.

I referred to the Council on Tribunals, whose words are worth reflecting on. It said:

“Since the Code of Practice will not bind the Mental Health Tribunal, it would greatly assist the Tribunal in carrying out its judicial functions under the Act if a clear statement of the guiding principles were specified in the legislation itself”.

We were persuaded by the Mental Health Act Commission, the Bar Council and, as has already been mentioned, the contents of the Children Act 1989 and the Mental Capacity Act 2005, a close cousin of that legislation, both of which have principles included.

I must say that I am also persuaded by everything that I have heard in the Chamber this afternoon. There is a near unanimity on this issue, and I believe that it would be inexplicable to the community at large if the Minister were not to make at the very least a signal concession. With great respect to the noble Lord, Lord Warner—whom, in welcoming the noble Lord, Lord Hunt, we miss from the Front Bench on this Bill—we do not want a compromise. It is not good enough—we want principles included in the Bill. They may be slightly different from what has been proposed, but that is the commitment that we request, and I suggest that it is a perfectly reasonable request.

I, too, welcome most warmly the return of the noble Lord, Lord Hunt, to the Front Bench. No one is more qualified than he, in the light of his experience, to hold this brief. I can assure him that he will have a very exciting life during the passage of this Bill.

It has been a singularly well informed debate of very high quality. My comments will be quite brief. I have received a flood of letters from professional organisations of every kind stressing the crucial importance of including principles in the Bill. The issue was brilliantly articulated by the noble Earl, Lord Howe. I will quote just one piece of the evidence that I have received; it is from the General Medical Council, of which the noble Lord, Lord Carlile, was once a distinguished lay member.

The council said that it was very,

“disappointed that principles have not been included on the face of the [Bill] (although they are in the draft Code of Practice)”, particularly as”—

the noble Lords, Lord Rix and Lord Carlile, have also said this recently—

“the Government agreed in its response to the report of the Joint Committee on the draft Mental Health Bill 2004, that principles should be set out on the face of the Bill”.

The GMC says that, while it welcomes,

“the principles, including respect for patients, non-discrimination, maximum benefit and minimum restrictions, which are set out in the draft Code of Practice, we maintain that clear, meaningful principles should be included on the face of the legislation itself”.

It believes that,

“this would be a valuable way of providing clarity about the scope and purpose of the Bill, so that those working within its framework or affected by its provisions are clear about the basis on which it is considered legitimate to intervene in the lives of people with a mental disorder”.

I could not put that more clearly. The House should support this amendment very strongly.

I support the proposal of the noble Lord, Lord Warner, that the Government take this away, look at it, understand the strength of feeling about the principles, but do not go down the road suggested by some on all sides of the House.

My first priority in a debate of this type is to ask myself, “Will this be effective?”. At the moment my concern about the proposed list of principles, or anything like it, is that it would be ineffective and in certain circumstances it could be counterproductive. First, as people were half-recognising, some of the things in the list are practices not principles and it would be a job to make them stand up as principles in a court of law. Secondly—this is very important and needs to be taken into account by many on all sides of the legislature—a good code of practice can be much more effective in law at protecting people’s rights than principles in a Bill. There are one or two areas where we could get into severe difficulties, even if this list of principles were taken away to be rewritten.

I would like to give an example, which is my last point but an important one. For many years I have taken the widely supported view that one of the main failings of the British mental health system has been the overrepresentation of certain ethnic-minority groups—most particularly, Afro-Caribbeans and Africans—among those receiving psychiatric treatment. That is mirrored by the singular lack of doctors and other people in key positions who are drawn from those communities. Yet we see in this list an attempt to put that into a principle, which it might need to be, but in a portmanteau way, linking it to a host of other things, including language. When I last checked, there were at least 170 or 180 languages spoken in London alone; I think there are well over 200 now. Many of those are spoken only by a small number of people. It is not just that if you had such principles in the Bill you would have to produce psychiatrists who spoke the language; you would also be expecting nurses or others in a hospital situation to deal with an individual, knowing that the principles of the Bill stated that they must take account of their language and treat them equally, even when they were unable to communicate effectively with them. Certainly, in many, many cases, they would not be able to get an interpreter or another person to speak that person’s language.

We on these Benches support the amendment. I do not want to repeat all the arguments in favour of the amendment, although I think I can hear the noble Lord, Lord Bragg, sitting behind me saying, “Oh, go on, repeat them all”.

In his opening remarks, the noble Earl, Lord Howe, referred to stigma and discrimination. We live with those still; they still abound around us. Certainly, I come across quite a lot of stigma surrounding mental health issues. In fact, I was coming across so much stigma last year, and it was so serious, that I arranged to have a roadshow come to my diocese, with people who could talk about mental health educatively. We had a very worthwhile session. To my great surprise, it was well received and people have asked for more. We have so much still to do on discrimination and stigma.

The noble Baroness, Lady Barker, referred to the fact that we have a great opportunity now to make this Bill even better than it is. Amendment No. 1 is the way in to doing just that. We need to seize the opportunity. The principles are: maximising the participation of the patient, taking proper account of the views of patients and carers, non-discriminatory treatment, reciprocity and having the least restrictive treatment. We believe that those principles should be in the Bill, and it is difficult to see any of them being nullified or superseded. I hope to hear the newly returned Minister, the noble Lord, Lord Hunt, give us all some encouragement. Allowing for the cautions of the noble Lord, Lord Warner, I say let us give the parliamentary draftsmen even more work to do on wet winter afternoons. Others on the Benches opposite have made similar comments. As the noble Lord, Lord Alderdice, pointed out, guiding principles also have a significant professional and public educative role. We support the amendment wholeheartedly.

I, too, welcome back the noble Lord, Lord Hunt of Kings Heath. He and I, like several others in this House, go back a long way. Like my noble friend Lord Carlile, I very much hope that he will not disappoint on this occasion. He does not usually.

I should declare some interests. I am an honorary fellow of the Royal College of Psychiatrists, which has been much quoted this afternoon. I was chief executive of the King’s Fund, a member of the Mental Health Alliance, which has been writing to members of your Lordships’ House regularly over the past few months and, indeed, years. I am also an adviser to the trustees of the Sainsbury Centre for Mental Health, which, too, has been much quoted this afternoon. Like the noble Baroness, Lady Murphy, I believe that the Mental Health Alliance is one of the great things to have happened in this third time round with the mental health legislation. The Mental Health Alliance—an alliance of some rather unlikely bedfellows—got together seven years ago and has become truly a force for good; it is a good forum in which strong, powerful and intelligent thought is given to these issues and great debates are held.

Like the noble Lord, Lord Bragg, I think that the question to the Minister is: “Why not put this on the face of the Bill?”. Part of the mental health legislation is so compulsorily restrictive that the principles by which the state, if you like, takes unto itself the ability to restrict the freedoms of various often very vulnerable members of society should be clearly stated where everyone can see them and is likely to see them.

Like the noble Lord, Lord Walton, I have received an enormous number of letters, as I am sure we all have, from a whole variety of organisations. But perhaps the most extraordinary thing has been not the enormous number of those letters, which I think we might have expected, but the number of letters that many of us have had from complete strangers—not people whom we already know—asking us to take this aspect very seriously. They want principles that service users or patients can see and understand to be put on the face of the Bill. They are saying that not because they are theoretically interested, but because they are the parents, siblings or children of people who have severe mental illness episodically; they know that it is important for those people to see what the principles are and to test the way in which they are treated against those principles. Like the noble Lord, Lord Adebowale, I think that we should take this matter extremely seriously. I very much hope that the noble Lord, Lord Hunt, will accept the amendment, even if he takes it away to have a think about it and comes back with a marginally different version.

Let me deal with the doubt about whether principles should be included on the face of a Bill because they change. Yes, we change. Human beings view things in different ways over a quarter of a century—and it is roughly every quarter of a century that we have a look at mental health legislation. Our perceptions change. However, as my noble friend Lady Barker said, if they change, we have a chance to debate the issues in this House. Homosexuality is a good example. I suspect that in the next few years we will change our perceptions—to the good, I hope—on the issues that are being raised now about the treatment of black and minority ethnic communities in our mental health services. And, yes, we will use this principle to drive our perceptions further. You can say that perceptions may change and that we may have to debate things again, but that does not invalidate putting principles on the face of a Bill. You derive everything else from those principles. As we examine the rest of this legislation closely over the next few weeks and months, we need to do so through the net of the principles that I hope will be established.

The issues raised in the principles in the amendment are important. For example, the welfare of the child is paramount in them. That is key, but it is not to be found in the principles in the code of practice that the Government have provided, on the basis, I think, that the treatment of children and young people is separate from the treatment of adults under this legislation. Any of us who have had any experience of mental health services—I once chaired a mental health trust—know that there are borderlines here. Young people of 16 and 17 years of age often find themselves in adult wards being treated by people who are not expert child and adolescent mental health service professionals but normally work with adults. If we do not have a principle in the Bill about the treatment of children, I believe that people will not take the welfare of children seriously. I consider that to be a key issue in our present mental health services, where many young people between the ages of 16 and 18 are still to be found in our adult wards using adult services.

Secondly, there is the question of reciprocity, which also is not mentioned in the code of practice. When the state deprives people of their freedom, it must do something in return. One would expect high-quality treatment, care and protection, and the idea of reciprocity not appearing in the Bill worries me.

I also want to talk about Scotland. Those whom I have talked to working in the mental health services in Scotland say that thus far the Scottish legislation seems to be working quite well. It seems extraordinary that we do not learn from that and say that, if that is the case and if principles appear in the Scottish legislation, perhaps we should also have principles in our legislation. I want to quote a Scottish service user:

“The principles … make crystal clear the need to respect us and treat us as fellow humans deserving of dignity and respect, entitled to participate and have a say in what happens to us at all points in our treatment ... Nowadays, I see my psychiatrist as someone I trust rather than fear or feel suspicious of; in the past, I felt the opposite”.

However, the key reason that it is important that the Minister accepts the amendment is that, as the noble Lord, Lord Rix, pointed out, the Government accepted that principles should be in the 2004 draft Bill. Therefore, having accepted that in principle, it should be possible to deal with the practical objections raised by the noble Lord, Lord Warner, and others. If we cannot deal with practical difficulties, I do not think much of us as legislators.

The Government claim that it would be difficult to graft principles on to the existing Act but, despite everything that we have heard this afternoon, I cannot see why that should be so. The noble Lord, Lord Warner, said that it would be difficult for the parliamentary draftsmen, but—dare I say it as someone who is related to an odd lawyer or two?—they are lawyers and they should be able to deal with it. Not only that but, if they cannot do it in a single wet afternoon—although my noble friend Lord Carlile thinks that they could do it between lunch and tea—perhaps there should be several wet afternoons, or weeks or months of wet afternoons, until they can do it. It seems to me that that objection simply does not stand. We have to carry on looking at the issue until we can get it right.

People from all round the Chamber have said that they want to see principles in the Bill. They have been saying that for a variety of reasons, heartfelt and passionately. They want to see them because they would set some ethical standards, and arguably raise ethical standards, in our treatment of vulnerable people with mental illness. They would give guidance and confidence to tribunals and lawyers and would guide practitioners. As someone who used to chair a mental health trust, I know that psychiatrists and psychiatric nurses look at the legislation and not only at the code of practice. I have frequently seen them do it: they do it when they are in doubt or when they think that the code of practice might be going out of date or might not be entirely adequate.

The principles would also give enormous confidence to people who think that they might be subject to the Bill and who are worried that it might in some way be used against them. It would generally give confidence to service users, as one service user has said of the Scottish Act. The Royal College of Psychiatrists is right to say that the principles would provide clarity and transparency of mental health services for all concerned about when and for whom compulsion is required and when it is not appropriate.

I want to make a very short statement. I was not planning to speak to this amendment, although I completely agree with all the comments that have been made. I feel I have to speak briefly in direct response to what the noble Lord, Lord Soley, said. I hope that I heard his comments incorrectly and that there was no suggestion that we might justify an inferior quality of care—or what I would probably state to be an illegal service—to somebody whose first language was not English. We have come across too many of those situations.

The language issue is a very good example of why paragraph (g) of Amendment No. 1 is absolutely perfect, because it stops practitioners from turning a blind eye to someone who is a difficult patient. It goes beyond that. Where there are issues of sexual orientation, it draws to the attention of the practitioner, the RMO, that something needs to be done. It is really important that we deal with such issues.

I want to make another comment in response to the remarks of the noble Lord, Lord Warner. If any part of the 1983 Act is counter to the principles listed here, then we should root it out as there is absolutely no room for those discriminatory practices in the legislation that we currently have.

I thank noble Lords for their warm welcome, which is much appreciated. I pay tribute to my noble friend Lord Warner for his absolutely magnificent work as a health Minister over, I think, three-and-a-half years.

I have a certain amount of form in this area as on 20 December 2000 I made a statement on behalf of the Government about our plans for this legislation. Since then, there have been two draft Bills and much discussion and development of ideas. I am glad that we are now in a position to move forward. At the time of that statement in 2000, I said that good quality care and treatment is the key to making sure that most people with mental health problems never need fall within the scope of mental health legislation and I talked about the Government’s plans for improving services. One can never be complacent, but I am glad to say that since then there has been improved access to effective treatment and care, standards have been raised, and services are quicker and more convenient. Of course, there is still much more to be done.

It also has to be recognised that however much we do to improve services, there will always be a need for mental health legislation to protect a person with serious mental health problems from harming themselves or others. We are seeking to update that legislation, not only to ensure it meets the objective of protection, but to make sure that the legislation is in line with modern service provision and promotes patient safeguards.

I will respond to the telling comments made about ethical standards. Of course detention in hospital and compulsory treatment raises difficult ethical issues; it is right that we debate those fully. We must make sure that we get this legislation right. We should also accept that patients will rarely be happy about being brought under compulsion, and we have an opportunity here to ensure that when compulsion is used it is done in ways that best serve the needs of patients and provide for the proper safeguarding of their rights. We are committed to providing good quality and accessible services and we will continue to encourage patients to seek help where they believe they need it. Despite this, there will always be occasions when compulsion will be needed—a fact we believe our community, including the users of mental health services, acknowledges.

Clearly, I am new to this debate and noble Lords who have spoken are very experienced and expert in this field. I just want to assure them that I see my role as listening to the debates in Committee. I want to find as constructive a way forward as possible and will do everything that I can to make sure that that happens.

As the Minister is coming to his summing-up, I thought that this might be the right place to put a question to him, which is in two parts. He began by saying that such principles should not be in the Act—it is an amending Act, but no legal point derives from that—but that they should be in a code of practice. However, he has since said that he does not accept the principles, although I noticed that he said nothing about the discrimination principle. He seems to oppose all the others, so that they will not be in a code of practice. His logic is that he does not like them.

The second part of the question is perhaps more important—we shall come to it as the Minister said. Is not the stance of the Government on the matter of putting highly valuable principles on the face of the Bill really based on the new treatment principle, with the highly subjective test of appropriate treatment, instead of a straightforward, objective test which it would be much better for patients and those who want the Act’s protection to have?

I do not agree with that. I was not arguing against the laudable aims in many of the paragraphs of the noble Earl's amendment. Indeed, I invite the noble Lord to read page 8 of the draft illustrative code of practice, which contains the Government’s suggested guiding principles. I have been suggesting that there may be—and, indeed, I believe there will be—some very practical issues with putting the principles on the face of the Bill as the noble Earl, Lord Howe, and others have suggested, and with how they interrelate with the current 1983 Act and the principles contained in it. I went on to describe some of the potential difficulties because, although one could certainly argue that each of the principles contained in the amendments of the noble Earl, Lord Howe, could be justified, from time to time there could be a conflict between them in terms of how the Act would have to be implemented.

In terms of where we are and where we should be going, let me say this in conclusion. I have listened very carefully to noble Lords’ comments and understand the importance of principles to them. I hope that I have explained why the Government have concerns about the practical impact of the principles proposed, but I will, to use the words of the noble Earl, Lord Onslow, take this away and explore it before Report to see whether any movement can be made. I can make no promise that ultimately such an approach will lead us to wish to put some principles on the face of the Bill, but I am happy to take this away and discuss it with noble Lords between Committee and Report to see whether there is any way through.

This has been a debate of very high quality, one of the best that I have had the privilege of taking part in. I thank all noble Lords who have participated in it and thank the Minister for his very full and thoughtful reply. We start from a point that is quite unusual when we debate legislation. There is near universal agreement outside this House, as evidenced by the list read out by the noble Lord, Lord Carlile, that there should be a set of principles on the face of the Bill. We have heard this afternoon that there is very wide agreement within this House that that should happen. The noble Baroness, Lady Neuberger, is right to have posed the essential question: why not place principles on the face of the Bill? Are the arguments advanced by the Minister strong enough to cause us to think again?

We have heard from many noble Lords that principles have real practical value. We can see that already in Scotland. I was interested that the Highland Users Group in Scotland has said in a recent broadcast how useful it is to have principles in the Act in giving them confidence in how the legislation will be implemented. That is particularly important because psychiatry is the only branch of medicine feared by its patients and the noble Lord, Lord Adebowale, got that point absolutely right. He and the noble Lord, Lord Bragg, were right to say that part of the point of a set of principles is to raise ethical standards of practice. Because they are in the statute, a sound set of principles should have a lasting value over the long term. I took note particularly of what the noble Baroness, Lady Barker, said; namely, that the justification for principles is that people will have confidence in the safety of the decisions made.

There seems one particular weakness in a code of practice. A code can be departed from as a result of a House of Lords judgment or case law. That can occur in a whole class of cases so long as there is a cogent set of reasons for doing so, and I have an example in my file. By contrast, guiding principles are of such general applicability that it is hard to see which of them could possibly be incompatible with the detail of the law. Sadly we have to remember that there is a long and ignoble international history of abusing detention in mental hospitals.

The noble Lord, Lord Hunt, was right that circumstances change, but if principles are to be changed in response to those circumstances, as we might envisage, it is essential that this only follow parliamentary debate and decision. The fact is that practitioners pay more attention to the Act than the code; that is also true of the Mental Health Review Tribunal and the courts. Over 25 years the Bill will lead to the detention and forced treatment of at least 1 million people, and ensuring that the provisions of the Act are in line with the principles would be time very well spent.

The noble Lord, Lord Hunt, pointed to a possible conflict between some provisions in the amendment. I think that the principles, by their nature, involve a balance between them at different times and in different circumstances. That is exactly what occurs in the implementation of all human rights law, when we think about it. The human right to life, for instance, and the right to liberty. There are circumstances when those two are in conflict. That is the nature of the implementation of this kind of law.

The noble Lord, Lord Warner, was critical of the amendment and commended to our attention the principles set out in the code of practice as an alternative. I would just say to him that the amendment is actually modelled very closely on the wording of the Scottish Act of 2003. It was because I did not want to fall into the trap of importing practical detail on to the face of the Bill that I did not do a straight crib of the code of practice. The noble Lord, Lord Alderdice, was absolutely right about that. The code of practice is primarily that, rather than a set of guiding principles.

The noble Baroness, Lady Murphy, made the excellent point that the principles in the amendment have been around for a very long time and have gained wide acceptance; however, I am more than happy to concede that the amendment may not be perfect. I should just say that there is a misprint in the last line of the amendment. It should say “informal” care and treatment.

If the principles are not compatible with anything in the Act, surely we ought to try to identify what those issues are. I think we will come to a number of them later in our Committee proceedings, but I say to the noble Lord, Lord Warner, that it should not be beyond the wit of parliamentary counsel to propose a set of principles along the lines of those set out in the amendment.

There is, of course, a larger point. If it is the united will of this House, supported, we may be entitled to hope, by the Minister—at least in principle—that such a clause be drafted, then a way should be found for that to happen. The noble Lord, Lord Williamson, said that we must be bold, and I fully agree with him. He is absolutely right. I urge the Government to be bold, to use this opportunity to put the legislation into a context of values and, in so doing, make a real difference to mental health patients. If the Minister commits himself to that, he can count on the support of noble Lords on all sides of the House as he sets about the task.

This is clearly not the occasion to test the opinion of the House. There will be a great deal more discussion and debate before we settle this issue. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Schedule 1 agreed to.

moved Amendment No. 2:

This is an extremely difficult issue. The Government’s position—if I do not misrepresent them—is that we gain very much more by having a single and unqualified definition of mental disorder than we would gain by building in various categories of exemption. We will be debating the issue of exclusions in some detail when we reach Amendment No. 4, and I do not want to pre-empt those discussions. The Government’s reason for taking this position is to ensure that clinicians do not get hung up on what diagnostic label may be hanging around someone’s neck, but rather pay attention to what their needs are and what behaviour or symptoms they are exhibiting.

In the case of autistic spectrum disorders, I expect that this is the argument we will hear. It is not an argument that can be brushed aside lightly, but I disagree with it. Autistic spectrum disorders are disorders characterised by impaired communication and social interaction. They are not psychotic disorders; nor are they mental illnesses. What the National Autistic Society fears, as the noble Baroness said, is that far from the single definition in the Bill making life simpler and ensuring that only people who have a disorder or disability of the mind are detained, it will cause confusion and result in more people with autistic spectrum disorders being detained than is justified. The behaviour of someone with an autistic spectrum disorder may well resemble that of someone with a mental disorder. We need to be sure that one is not mistaken for the other. If a person is neither mentally ill nor behaving in an abnormally aggressive or irresponsible way, quite simply, they should not be detained compulsorily under the Mental Health Act.

It is perfectly true that people with ASDs have a higher than average incidence of mental health problems. We do not want to say that by virtue of having an autistic spectrum disorder they should be excluded from the scope of the Bill altogether. That really would be a mistake. If we imagine an autistic person posing a risk to themselves or to others by reason of mental illness, instead of having the various protections afforded by both the Act and the Bill, they would be left to the mercies of the criminal justice system.

There is a way out of this, suggested by the noble Baroness. Unless we add to Clause 2 the words in the amendment, we will have a situation where someone with a learning disability and an autistic spectrum disorder, but without mental illness, could still be detained, even if they were not displaying seriously irresponsible or aggressive behaviour. That surely cannot be what we want. I very much hope that the Minister will be sympathetic to the arguments put forward by the noble Baroness.

The noble Baroness, in moving this amendment, has done so comprehensively, and has given the views of the Joint Committee. I would not resile from those views for one moment. I agree entirely with what she said, although I would put it in a slightly different way, to add something—I hope—to the way she expressed herself. The committee was of the view that this was, in many senses, an issue of discrimination. People suffering from autistic spectrum disorders carry out valuable roles in society. I suspect that there are not a few people suffering from autistic spectrum disorders not a million miles from where we sit now and the other place.

If I may be anecdotal for moment, I recall that last year someone came to install some case analysis software on my laptop in my barristers’ chambers. He explained to me that in his business he employs four people who suffer from autistic spectrum disorders to prepare and analyse the vast quantities of case material—and we were talking about a huge fraud case—which were to be reduced into a particular CD-ROM format. To his great credit, he told me that not only are they among his most valued employees, but that everyone in his firm earns the same wage, so that they earn exactly as much as he does. He was amazed that more companies were not using people suffering from autistic spectrum disorders to deal with very complex issues of that kind, which maximise the particular abilities that some people suffering from autistic spectrum disorders, including Asperger’s syndrome, experience.

To say that people suffering from autistic spectrum disorders are not “normal members of society” is, in my view, discriminatory and insulting to those people. Returning to where I started, I should say that it seemed to the committee that, although people with autistic spectrum disorders had a greater incidence of mental disorders in their lives, there was no evidence before us to support the view that one could assume that they suffered from mental disorder. The provisions as they stand imply that assumption. If the amendment is accepted by the Government there would be no deficit in the effectiveness of this legislation in relation to people suffering from autistic spectrum disorders.

The noble Baroness has brought forward what is, I hope, a probing amendment. The awful point is that if you start naming various conditions, we will get a never-ending list. Most of us who have dealt with disabilities over a period of time know that one of the problems we face is the stereotype. There are certain preconceptions to do with the way that people with disabilities—either obvious or hidden—relate to the world. The deaf may have tremendous problems relating to people if the batteries in their hearing aids are low or if there is no loop in the room. Their behaviour could be interpreted as aggressive if you happen to catch them on a bad day.

I do not like the idea of naming a condition in the Bill and saying that it is fundamentally different. I have spent countless hours in this Chamber saying that disabled people should be treated wherever possible in the same way as the rest of the world. We are in trouble if we start to introduce caveats suggesting that we need not take into account that a disability will lead to slightly different patterns of behaviour. That would be the flipside of saying, “Does he take sugar? Dear lad. Pat him on the head and put him in his wheelchair in the corner”. It would be like saying, “They are all monsters”.

I would be much happier if the Government would explain their thinking on this matter. The fact is that illness can occur to any disability group regardless of whether it is mental or physical. Why introduce a second caveat? It may be because people are worried that this group has been labelled in the past. I may not have listened to enough of what has been going on in this Bill, but please could we have more clarification of the Government’s thinking?

I am grateful to my noble friend for her Amendment No. 2. Section 1 of the 1983 Act as it stands first gives a general definition of mental disorder. It then defines four specific categories of mental disorder—mental illness, mental impairment, severe mental impairment and psychopathic disorder. Mental impairment and severe mental impairment can be identified with learning disabilities of different degrees of severity, but are defined in such a way that they cover those disabilities only where they are associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned.

Many of the powers in the Act—including, for example, detention for medical treatment under Section 3—may be exercised only if the patient is suffering from one or more of the four categories of mental disorder. Some powers, including the Home Secretary’s ability to transfer unsentenced prisoners to hospital when they urgently need treatment for mental disorder, apply only to certain categories of disorder—in that example, only mental illness and severe mental impairment.

We believe that the use of the Act should be determined by a patient’s needs and the risk posed by their disorder, not by the particular legal label applied to it. The four separate categories of mental disorder in the Act are legal distinctions that do not match clinical practice. They create arbitrary and unnecessary distinctions between patients and effectively exclude some patients entirely from certain parts of the Act. They also sometimes encourage some patients and their lawyers to argue about legal classifications in the hope of obtaining premature discharge, even when they remain in need of treatment. That is why Clause 1 removes the four categories of mental disorder. Criteria for admission for treatment will now apply uniformly to any disorder or disability of the mind, rather than being dependent on a patient having a particular category of mental disorder.

However, Clause 2 deliberately maintains the idea that key parts of the Act should apply to learning disability only when associated with abnormally aggressive or seriously irresponsible conduct. That is what we mean by the learning disability qualification. Our intention in including the qualification in Clause 2 was to preserve the effect of the Act in relation to learning disabilities. It was not to change it by effectively excluding more disorders from the scope of many of the powers in the Act. I am at one with the noble Lord; as a general principle, we believe that the fewer exclusions there are the better, because each one adds to the risk of arbitrarily excluding people who need to be helped. That itself would be a powerful argument for not extending Clause 2 to cover autistic spectrum disorders.

But we also think that there is a clinical distinction between autistic spectrum disorders and learning disability. A learning disability will include the presence of a significantly reduced ability to understand new or complex information or to learn new skills, and a reduced ability to cope independently. It will not necessarily be accompanied by the difficulties that a person with an autistic spectrum disorder will have with communication and relating to people around them. It is because of these communication difficulties that we believe that people with autistic spectrum disorders are better served by not being subject to any limitation. That way, in the rare cases where the Act needs to be used—for example, to help an autistic person who might otherwise attempt suicide—debates about diagnosis will not present an obstacle.

In fact, by removing categories of mental disorder, we are making it clear that all the provisions of the Act apply to people with autistic spectrum disorders, where necessary. At present, the arbitrary distinctions between the four categories of disorder leave room for uncertainty about the extent to which the Act applies to people with autistic spectrum disorders—although a small number of people with such a disorder are certainly detained under the Act already.

As a result of the change that we are making, when clinicians are called on to determine whether the Act ought to be used in relation to a person with such a disorder they will be able to concentrate on the individual’s needs and the risk posed by their disorder, rather than on whether the disorder fits one of four arbitrary legal categories, or whether the person’s autism is accompanied by seriously irresponsible or abnormally aggressive behaviour. Also, including autistic spectrum disorders in the learning disability qualification would mean that where an autistic person committed a serious offence and did not have another mental disorder, the courts might have no alternative but to pass a prison sentence unless the autistic spectrum disorder was associated with abnormally aggressive or seriously irresponsible conduct on the person’s part. Given that people with autism are more often aloof than aggressive, that would impose a constraint on the courts that might occasionally lead to people being detained in prison where it would be more appropriate to use the Mental Health Act.

Amending the Act in the way that we have done will ensure that it can be used for the very few people with autistic spectrum disorders for whom detention or other compulsory intervention is justified, without any uncertainty about whether and how they fit into its legal framework.

I am puzzled by something that the Minister said about the courts. Is he suggesting that there might be a case in which the court would make an order under Section 37 and/or Section 41 of the Mental Health Act 1983 on the grounds that the person was suffering from autism spectrum disorder, without anything more? I find it extremely difficult to imagine that that would happen.

I was seeking to suggest that there may be a gap. If there is an exclusion such as the one suggested by the noble Baroness, a situation may occur in which there was no alternative other than the person being dealt with through a custodial sentence. That is why it would be much better not to have an exclusion and to allow more flexibility in the way that such an issue could be dealt with.

If I could—

Perhaps I should—

If the Minister is inviting me to intervene again I certainly will. I hope that the Committee will not think that it is a discourtesy. The Minister says that there may be situations. Are the Government able to put their finger on any example of any such situation from known experience from which they can extrapolate that prediction?

I will see whether I can write to the noble Lord with a specific case, but the kind of situation that might arise would be where someone with the disorder has no other recognised mental disorder. Perhaps they were feeling suicidal due to the social isolation associated with their autism. The Act should then enable professionals to detain them for their own protection. I understand this is a different case from that raised by the noble Lord. Indeed, I was answering the point raised by my noble friend. The substantive point is to try to ensure that there are no gaps. An exclusion in the way suggested by my noble friend has the potential for leaving a gap. I shall see whether I can produce any information on the question that the noble Lord raised.

In conclusion, while the Government do not want to accept my noble friend’s amendment, I will be happy to discuss this further with her and concerned stakeholders, to see if I can allay some of their concerns.

I thank the Minister for that reply, but I am going to have to think about it quite carefully to ensure I understand it properly. If the Minister is worrying about gaps, I might be worried about including too many people who maybe should not be included. I will reflect on his response and on the comments made around the Chamber, but at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 3:

During my time in this Chamber I have learnt one thing—that the noble Lord, Lord Rix, is the worst act to follow because he always has the best lines, and that is my position today. Anyone who spent more than about 30 seconds on the Joint Committee was left in absolutely no doubt as to his commitment over many years to this subject, and his tenacity. All that we could do, strong-minded people though we were, was to emerge from that committee in complete agreement with everything that he said and to be prepared to line up with him. We did that because he is absolutely right—and he is absolutely right in proposing this amendment.

Being aggressive or irresponsible is not a reason in itself for people to be subjected to mental health legislation. Because someone has a learning disability and displays those two things it is simply wrong to make them subject to a different degree of judgment from other people. It is important that we support the noble Lord, Lord Rix, because he is right that there is huge scope not only for wrong or lazy diagnosis but for people with learning disabilities being subject to a completely different degree of assessment from other people, which is fundamentally wrong.

I remind noble Lords that during the passage of the Mental Capacity Act, I was one of those who argued most strongly that there should be an equality provision in that Act and there should not be discrimination. It is beholden on people such as me who hold that view, which is sometimes quite controversial in its application to some areas of healthcare, that we do so consistently. If we cannot be consistent on such a matter of principle, we should not be here at all.

The noble Lord, Lord Rix, is absolutely right in saying that people with learning disabilities have the right to expect the same treatment and regard as anybody else. That has been the thrust of legislation in recent years, not least with the Mental Capacity Act, and it should be the thrust of this legislation too. At a very simple level, having a clause in the Bill in which the words “learning disability” and, “abnormally aggressive or seriously irresponsible conduct”, come together reinforces some of those stereotypes, about which my noble friend Lord Addington spoke so eloquently in relation to the previous amendment.

For all the reasons that the noble Lord, Lord Rix, outlined with better erudition than I ever could, I believe that we should support him.

I shall support the amendment proposed by the noble Lord, Lord Rix, by making two points and telling a story, which illustrates the point forcefully, if nowhere near as strongly as the story that the noble Lord told. I and the organisation for which I work—and, again, I declare an interest with regard to Turning Point, which provides a service to about 8,000 people with learning disabilities, some of whom have very challenging behaviour problems too—believe that learning disability should not constitute mental disorder. In fact, the principle is one of equality; it is as simple as that. None of this is rocket science. Without wishing to go back to an earlier debate, this is about the principle of equality.

The most appropriate legislation under which the majority of people with a learning disability should receive treatment is the Mental Capacity Act, when it comes into force in April. People who lack capacity who are also subject to the provisions of the Mental Health Act 1983 will still be protected by the Mental Capacity Act with regard to the types of decisions or actions affecting them. Therefore, when a decision unrelated to treatment for mental disorder needs to be made, including decisions about physical healthcare, welfare or financial matters, an assessment must be made of the individual’s capacity to make that particular decision when it needs to be made. It is important that the code of practice spells out that the principles and provisions of the Mental Capacity Act would apply to all such decisions or actions, regardless of whether the person was subject to the provisions of the Mental Health Act 1983. There is a danger that the behaviour of some people who have a learning disability will be misinterpreted and mistakenly attributed to mental disorder. In my 20 years or so of working with government departments, I have worked with many people who have either a learning disability or another disability and whose behaviour has been extraordinarily aggressive. They would certainly be very shocked to find themselves coming under the Mental Health Act. People with a learning disability are in danger of having their behaviour misinterpreted and mistakenly attributed to a mental disorder. As has been pointed out, that is quite simply wrong, when there is a physical or environmental reason for their behaviour.

To illustrate this point, let me tell you a story, which ended in the use of the Mental Health Act. Mr S, who has a severe learning difficulty, autism and communication difficulties, lives in a residential setting. He was detained under the 1983 Act because he was becoming increasingly agitated and exhibited aggressive behaviour, banging his head against a wall. It was later discovered—this is shocking but true—that Mr S had a small twig in his ear, which was causing him distress, as it would most people, and which he expressed by his agitated behaviour. This scenario shows how the distress of a person with a learning disability can be automatically attributed to a mental disorder without paying sufficient attention to physical factors. This is about not just lazy diagnosis but making fatal assumptions.

The issue is education and skills among professionals. It is about being able to correctly assess whether a person has a co-existing mental health problem alongside a learning disability. Here again it is inappropriate to use mental health legislation to compensate for the lack of these skills if a person does not have an additional mental disorder. The Government should support the amendment of the noble Lord, Lord Rix, but might also want to make it explicit that, if a person has both a learning disability and a co-existing mental disorder, they should be able to receive appropriate treatment under the Act.

I want briefly to support the amendment of the noble Lord, Lord Rix. He has said it so eloquently that, like the noble Baroness, Lady Barker, I do not want to add much. This is really about ensuring that people with learning disabilities are not discriminated against and have a proper assessment of their mental disorder. As we have already heard, they are far more likely to be suffering from serious mental disorder.

Underlying some of the Government’s thinking is the notion that we must not risk people with learning disabilities being caught up in the criminal justice system when it is inappropriate for that to happen. The reason why that happens is because of the poor availability of proper consultant psychiatry to people with learning disabilities. It is a developing field, which has got much better in recent years, but there is still tremendous discrimination. The opportunity to have proper assessments and treatments is absolutely crucial. The noble Lord, Lord Rix, has said it. I support this amendment strongly.

I support this amendment. I remind the Committee of the wording of the recommendation from the Joint Scrutiny Committee. Our report pointed out that people with learning disabilities or communicative disorders should be,

“liable for compulsory treatment under the Bill only if they display seriously aggressive or severely irresponsible behaviour as a result of their condition and if such treatment as is properly and reasonably required can only be provided to such patients under conditions of compulsion”.

That last condition is present in the Bill as it is currently drafted. That is why this amendment is so important. Our discussion and the difficulties raised are very much underpinned by the problem of the principles not being stated in the Bill.

This is all about correct diagnosis, as the anecdotes have so clearly illustrated. If someone with a learning disability also has a mental disorder it is appropriate for the Act to kick in and for compulsion to be used, if that is the only way that that mental disorder can be treated. However, under the Mental Capacity Act, if someone with a learning disability does not also have a mental disorder, but does not have the capacity, they can in any case be provided with the care and treatment that is in their best interest under that Act. For those people who do not have a mental disorder that requires treatment and for the patient who is not accepting treatment for a mental disorder, the trigger of accurate diagnosis is key. Without that, all the groups—such as the United Kingdom Disabled People’s Council and the other groups that have made representations on this clause—will have their fears enhanced, not decreased, as this Bill goes through. The other problem with people’s fears being enhanced is that they are less likely to access care and treatment early, when they need it and when intervention is much less. When problems escalate, they become greater and more difficult to deal with.

I persuaded the noble Lord, Lord Rix, that he could escape from Wimbledon while his neighbours were taking children to the local school and, therefore, persuaded him into 9.30 meetings of the Joint Committee—a proposition he resisted strongly to begin with. I, too, was then treated to his knowledge—and that of Lord Carter and Mrs Browning—during the Joint Committee. As a result, I, too, support the amendment.

My principal point has been made by the noble Baroness, Lady Finlay of Llandaff, and I will not repeat it, although important. However, I have a further question. Given that half the recommendation of the Joint Committee has been incorporated into Clause 2, what is meant by “abnormally aggressive” or “seriously irresponsible” conduct? Is this to be judged by objective criteria, as against a norm of the person on the Clapham omnibus—or of the responsible person on the Clapham omnibus—or by the criteria of a person suffering from the learning disability from which the individual suffers? My view is that this clause suffers from serious terminological inexactitude. That needs to be clarified before we can proceed further in supporting any proposals, if that is the position we reach as a result of our debate on this amendment.

The noble Lord, Lord Rix, has once again spoken very powerfully on an issue in which he is an expert. I have huge sympathy with the points that he has made. He is passionate—rightly so—about the distinction between learning disability and mental disorder. He does not want to see one confused with the other. I am entirely with him on that, as with the points on discrimination and stigma, and on wrong and lazy diagnosis. In expressing that support for his amendment, I have two worries, both of which are practical.

By removing lines 10 and 11 from the clause, the noble Lord, as he acknowledged, is effectively excluding people with learning disabilities from the scope of the Mental Health Act altogether, unless at one and the same time there is a mental illness or mental disorder also present. I worry how that leaves someone with a learning disability who is behaving in a very aggressive or irresponsible way and who may be a risk to himself or to others. If the police are summoned to a scene where they witness such behaviour, what are they to do? The noble Baroness, Lady Finlay, suggested that the provisions of the Mental Capacity Act might come into play here. I want to ask her or the Minister whether we are quite sure that the provisions of that Act could be used to administer care and treatment in the person’s best interest. I am far from clear that the provisions of that Act would cover this kind of situation, because the Act does not authorise detention. If that is correct, the police’s only recourse would be the criminal justice system. That seems to me to be an even worse avenue for the individual, and certainly a much less therapeutic one, than to be admitted to hospital. I am simply making a pragmatic point here.

My second worry was raised by various witnesses giving evidence to the Joint Scrutiny Committee on the 2004 draft Bill. A case known as the HL case was dealt with recently by the European Court of Human Rights. The decision in that case, in the view of at least one witness, means that whatever the definitional niceties that we have been talking about, it will be necessary to devise some sort of legal framework whereby people with learning disabilities can be admitted to hospital and given the kind of safeguards provided by the Mental Health Act and this Bill. I am thinking particularly of the extension of the tribunal’s remit. If I am broadly correct about that case and its effect, it is important. I should be interested to hear what the Minister has to say about it. If I could put a brutal question to him: is the Bill a quick and ready short cut to addressing the findings in that case?

I am very grateful to the noble Lord, Lord Rix. I read his speech on Second Reading, and I understood that he would be tabling the amendment. His amendment seeks to ensure that people with a learning disability could not be detained for treatment, made subject to guardianship, or placed on supervised community treatment under the 1983 Act unless they also had another clinically recognised mental disorder.

Indeed, very few of the provisions of the Act would apply to a learning disability that was not accompanied by any other recognised mental disorder, even if associated with,

“abnormally aggressive or seriously irresponsible conduct”.

I have the greatest respect for the noble Lord, Lord Rix, who is a tireless advocate for the rights and interests of people with learning disabilities. I know that he has met officials in my department, but I have to say that the Government are not in favour of this amendment. He discussed on Second Reading his involvement in the development of the wording in the current Act in relation to learning disability; that is the very wording,

“abnormally aggressive or seriously irresponsible conduct”,

that his amendment now asks your Lordships’ House to remove.

We are, of course, well aware of the strongly held view that learning disabilities should not be labelled as a mental disorder, both on principle and for fear of exacerbating confusion between learning disability and mental illness. The noble Lord, Lord Rix, will know that I understand that point of view. We recognise that learning disabilities are not the same as mental illness, but they are recognised disorders or disabilities of the mind. The crux of this issue is that the Act is not about labelling people; it is about making sure that they can be treated where necessary. Excluding people with learning disabilities from the definition entirely would risk the very small minority of those people who need compulsion not getting it, or else would require clinicians sometimes to apply inappropriate diagnostic labels to ensure that they can give the treatment that they believe is needed. That is why learning disability remains a mental disorder for the purposes of the Act generally. None the less, we all agree that the powers in the Act should not be used just because someone has a learning disability; hence our decision to include a special provision to preserve the effect of the current Act in relation to learning disability, despite the abolition of categories of mental disorder, in particular those of mental impairment and severe mental impairment. Thus, in future people who have a learning disability will be treated in exactly the same way as they are at present, but we are not persuaded that we should go further.

I fully accept the comments that have been made about the potential problem of misdiagnosis. I have taken careful note of the points that the noble Lord, Lord Rix, has made about the importance of ensuring good practice in the diagnosis of mental health problems in people with learning disabilities. I acknowledge that people who have a learning disability have special difficulty in communicating the nature of their health problems in ways that may be mistaken for mental disorders. I agree that picking up physical health problems is an important issue for anyone with a mental disorder. For everyone who may be assessed for possible mental health problems, it is important to establish that their psychological presentation is not a reflection of underlying physical health problems. That is especially so in the case of people with learning disabilities.

We do not believe that by so defining the clause we are stigmatising people with learning disabilities. In no way does a learning disability qualification suggest that abnormally aggressive or irresponsible behaviour are associated with learning disabilities; quite the opposite. It is not inappropriate, and it certainly makes no assumption that detention in hospital is the best approach for people with learning disabilities who offend, but it makes sure that the option is open to the courts where appropriate. The noble Lord, Lord Carlile, asked what “abnormally aggressive” and so on means. I am advised that the term has been used since 1983, and that the words have to take their normal meaning. Case law suggests that conduct is to be judged by general standards, not those of other people with a learning disability.

I say to those noble Lords who have expressed concern that the real problem here is about misdiagnosis and a lack of adequate services—and I suspect that I will repeat this on a number of occasions—that good practice is an area in which it can be difficult to legislate, especially where we want to legislate in such a way as to give mental health professionals the maximum latitude to make decisions flexibly in the best interests of the mentally disordered person. But clearly the code of practice is an appropriate avenue in which to look at the issues that the noble Lord has raised. I will look at ways of strengthening, the code of practice to take account of his and others concerns in this area.

On the use of the Mental Capacity Act to guarantee treatment for people with learning disabilities, it is important to make it clear that many such people have the capacity to make their own decisions about treatment, even when they are experiencing particular mental health problems, and we must not assume that they do not. For those people, the Mental Health Act is more appropriate, because it treats them in the same way as anyone else who refuses to consent to the mental health care that they need.

The answer to the question asked by the noble Earl, Lord Howe, is no. He can find the answer in Part 2, in the so-called Bournewood safeguards, which deal with the situation that he raised. The Government’s view is that, notwithstanding the need to ensure that diagnosis is as effective as possible, the code of practice needs to be reviewed in the light of the comments made by the noble Lord, Lord Rix. This amendment, if adopted, would potentially leave a small minority of people with learning disabilities in a more vulnerable position than at present. That is why we would prefer to leave the safeguard in the Bill.

The Minister said at the beginning of his remarks that if the amendment in the name of the noble Lord, Lord Rix, were passed, there would be a danger that some people with learning disabilities who needed compulsory treatment would not get it. Why should the situation be any different for people who have learning disabilities as opposed to those who do not? Will the Minister also answer the question asked by the noble Baroness, Lady Finlay of Llandaff, about why only part of the Joint Committee’s recommendation finds its way into the Bill?

I would prefer to write to the noble Baroness on some of the points that she raises. As a general point, we consider that there is a need to ensure that the position of people with learning disabilities is covered and that there are specific circumstances in which it is appropriate that they are referred to in the Bill. I hope that she will allow me to write to her with further detail on that.

Those were the new year’s greetings that I expected, whether from the noble Lord, Lord Warner, or from his replacement. I knew that the Government would say what they did, because in my discussions with the Bill team last week and in the two letters that I received, in particular the one from the noble Lord, Lord Warner, more or less exactly the same points were made. I realise that I have a bit of an uphill struggle. However, I would like to meet the Minister again before Report to see whether we can reach some compromise and to discuss strengthening the code of practice, which I think is terribly important. The code of practice would be a very good background for sorting out this problem about learning disability, especially if Amendment No. 72 were passed, as that would make the code a little more enforceable.

I have a sense of déjà vu. The conversation that I had with the noble Lord, Lord Elton, 24 years ago was not dissimilar to the conversation, albeit one-sided, that we have just heard from the Minister, who put the same sort of arguments. Twenty-four years ago, I queried whether the meaning of the words “abnormally aggressive” and “seriously irresponsible conduct” was quite clear. I believe that if I were a diagnosing doctor—rather, if I were two diagnosing doctors—I could easily say that the person was being abnormally aggressive or seriously irresponsible and we would back each other up; it would be much easier and quicker to do that than to look for the root cause of the problem.

I am not convinced, although I totally understand the Government’s arguments. For years, we described learning disability as a mental handicap. As noble Lords will know, we removed the words “mental handicap” from our organisation’s title; it is still called Mencap, as an abbreviation, although that could now apply to the Mental Capacity Act rather than to the Mental Health Act. The word “mental” and the stigma of applying the Mental Health Act to people with a learning disability are closely related. That is why I should like a clearer definition in the Bill. However, until we can have our discussions, as I hope we shall, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

moved Amendment No. 4:

As I was getting ready to talk about this amendment, I was taken back many years—more than I care to remember—to a time when I was quite young. I was walking down a street in America where a lady was behaving in a very loud fashion: she was preaching in a hectoring manner. I was very small and found it quite frightening. The adults with me said, “It’s okay. She’s just a bit crazy and that’s what she does”. I had forgotten that incident until about five years ago when I was reading a biography of Hillary Clinton. Mrs Clinton is a lady who brings about quite extreme reactions but I was taken with her because, when she was a young lawyer in Arkansas, she was noted for things such as driving many hundreds of miles to defend ladies who “preached a bit crazy” in the street on the grounds that they were allowed to do that. I was also reminded of that early incident about two years ago when I was walking through Brixton and came across a lady preaching very loudly in the middle of the street.

All those things came back to me as I read through the briefings for this Bill, because what we and society decide is acceptable and “just a bit crazy” or something that should bring someone under compulsory powers may be subjective matters involving time, place and context. That is why it is important that we have this debate. There is always an element of subjectivity in any assessment or analysis of a person’s behaviour. As the Minister said earlier, the 1983 Act provided a fine balance between compulsory powers and rights of representation for individuals. That was a much more balanced piece of legislation than that which we have before us now and yet we have had report after report showing that even that legislation, tuned as it was at the time, has a disproportionate effect on some communities because behaviour is interpreted in wholly different ways.

A subtext runs beneath many of the Government’s proposals. I say, “Mind the gap”. In trying to change the 1983 Act, the Government, in almost every single clause, are concerned to try to include patients who have been excluded from the 1983 Act as a result of poor psychiatric practice. That is the subtext of much of the Bill. In trying to close those gaps they have forgotten that the law has been used only as an excuse.

Take, for example, a 20-bed unit with 110 per cent occupancy. When one considers whether to admit someone who has a mental disorder, one will consider whether he can be treated, whether he will be out again in 48 hours and whether he can be supported in the community. One could also consider admitting a rather challenging, difficult Mr Smith who is persistently drunk, never takes his medication, and about whom it is unsure whether he can be dealt with over the next two to three months, so he will be in the bed longer. When someone asks why one did not admit this or that person, the answer is that the law did not allow it. That is repeated over and over again. I cannot tell you how often it happens. That is what lies behind the very wise amendment of the noble Lord, Lord Adebowale, who sees people excluded from care every day of the week.

Is the answer to put such a matter in legislation, widening the scope of the Act to include many people who would not otherwise be considered for detention? For various reasons the answer is no. The answer is training, resources, better understanding of what is possible and better understanding of how to help people with difficult and challenging problems such as substance misuse and paedophilia, but one cannot include them all.

The amendment is about stopping detention creep. In this country it is quite difficult to get people to take it seriously because since the 1959 Act we have had a tradition of using psychiatric hospitals and units almost exclusively, but not entirely, for the care of people with mental disorder. But that exclusiveness is a relatively recent phenomenon. Mental hospitals and asylums in the 19th century and before and after the First World War became repositories for all kinds of socially excluded people when there did not seem to be anywhere else to put them. In those days if one were in a mental hospital, one was detained by default. The destitute unmarried mother, the epileptic, the merely eccentric and the socially incompetent all tumbled into the asylums. They were a social inconvenience but everyone colluded in saying that there was nowhere else for them to go. In the 1970s, when I first worked in psychiatric hospitals outside the great fringe around London—what we call the Epsom archipelago—the place was full in the back wards of people whom we had enormous difficulty diagnosing with anything.

Society does not know what to do with other social misfits. One group is those who are persistently addle-headed on drink and drugs. They are very difficult to help. Of course, there are ways to help them, but it is not easy. Paedophiles form another group; the religious fanatics who belong to the Moonie loonies and the like is another. We know that those people are not as we would like them to be; they are not like us; they probably need some help, but how we should help them is rather obscure. No doubt a significant percentage of them suffer, from time to time, with mental disorder which would bring them properly under the scope of the Act, but it is a profound mistake to include all categories of people behaving badly simply because we do not have any other answers.

The Mental Health Act is designed, as we keep saying, to provide a check on clinical discretion and to give clear boundaries to protect against improper use. The Government believe that society in general is happy to leave decisions, such as the scope of the Act, in the hands of professional experts. I find that quite astonishing. They obviously do not know as many professionals as I do. I regret that I do not find it difficult to envisage the inappropriate use, perhaps well meant, of mental health legislation for non-medical purposes, for social convenience and control—“Get the paedophiles off the streets”. The pressure on services to find solutions to the presently insoluble problems will be massive. Exclusions ensure that practitioners carefully consider the basis for compulsory treatment. If there is an underlying mental health diagnosis, a person is covered by the Act; if there is no diagnosis, it is unhelpful and inappropriate for the mental health services to manage that person.

The revised definition of mental disorder is deliberately simplified and free of diagnostic categories in the Bill, so it is all the more important to be clear about the exclusions, which, after all, are a feature of the legislation in all comparable jurisdictions in the common law world, including our near neighbours Ireland and Scotland.

I turn to sexual behaviour. When I was a trainee psychiatrist, we were obliged to learn all the ways to treat homosexuality, even though at the time many of us were horrified that it came within the scope of what we were meant to learn. Until recently, it was included in ICD 10. There is still a wide range of sexual behaviours in ICD 10 and so are many other mental phenomena which by themselves would not necessarily fall into the category of mental disorder; for example, excessive gambling and grief. Just because something is in ICD 10 does not mean that it should necessarily fall within the Act. We know that people whose sexual behaviour departs from socially acceptable norms are likely to be stigmatised. They may or may not have a mental disorder. Their behaviour may or may not be contrary to criminal law. Without this exclusion, however, people with gender dysphoria or transsexualism and, indeed, your everyday rubber fetishist will be brought within the Act as well as paedophiles.

Forensic scientists tell us that the current exclusion criteria are important in enabling them to distinguish between those who are truly amenable to help and would warrant a detention because they have an additional mental disorder, and those who do not. From a psychiatric point of view, there is no necessity to remove the exclusion of pure disorders of sexual preference from the definition of mental disorder. As I say, the Government are obsessed with folk who do not get into treatment. This is not the right way to approach that.

On illegal or disorderly acts and political beliefs, there should be a clear distinction between people who have a mental disorder and those whose behaviours and practices are simply unacceptable to society in general. There are, after all, lots of people who say that those young British Muslim terrorists who blew themselves and others up were mad—not a far step from thinking that all people who want to see an Islamic state in Britain should be locked up in a mental hospital. It has been done elsewhere in the world, as the noble Earl, Lord Howe, pointed out. Psychiatry has been abused in Nazi Germany and many other countries and, in the 1960s and 1970s, in the Soviet Union.

I spoke to many colleagues in the Soviet Union during that time, when I was a young trainee psychiatrist and the Soviet Union’s psychiatrists were excluded from the World Psychiatric Association. Most of the psychiatrists working in the Soviet Union at that time believed that they were doing the right thing—there were of course those brave dissidents, many of whom managed to come here and other parts of western Europe. Most of the psychiatrists did it with the best of intentions. We must remember that. That is why they were excluded from the World Psychiatric Association; it was not imposed on them by their Government.

The effect of not having exclusions further confuses the role of psychiatry and mental health services in the public mind, moving it from its proper aim of the assessment and treatment of mental disorder into social control. It further reduces the acceptability and, therefore, effectiveness of the services. That will have a serious impact on people from black and minority-ethnic communities, as we have already heard. I have covered the third exclusion of cultural, religious or political beliefs, and the joint scrutiny committee agreed.

The Government are concerned with the exclusion of people with mental disorders who have unusual cultural beliefs. I cannot think why they feel that there is a risk that they will not be included, since minority cultures tend to be over-represented in those compulsorily detained. If there is a misunderstanding, it is, rather, the inverse of what the Government fear. What is their evidence on this? In their response to the scrutiny committee, the Government made the extraordinary statement that,

“cultural, religious and political beliefs do not constitute mental disorders, but may sometimes be symptoms of a clinically recognised mental disorder”.

In other words, it is possible that you could have no delusions, hallucinations, thinking disorder, speech defect, disorder of emotions or difficulties with your emotional relationships, but could have expressed your disorder simply through a cultural or political belief. That strikes me as profoundly dodgy ground.

These amendments are to protect against inappropriate detention, and to protect professionals from being used inappropriately by society. With good training and better resources to treat people with a wide variety of disorders and ancillary problems—including those the noble Lord, Lord Adebowale, is talking about—we should certainly be able to solve this problem. Widening the definition, however, is not the answer.

I speak to Amendment No. 5 in my name. The Bill rightly clarifies that dependence on alcohol or drugs is not a mental disorder that justifies compulsory treatment. By making this clear, however, it could inadvertently mean that a person with a dual diagnosis of a mental disorder and dependence on alcohol or drugs might not get the help they need under the Act. Before I go on, I must once again declare an interest: Turning Point is probably the largest provider of services to people with alcohol and drug problems outside the NHS. I thank the noble Baroness, Lady Murphy, for her kind words on my amendment before she had heard me speak. That is quite nice.

My amendment is complementary to Amendment No. 4. In the United Kingdom, it is estimated that half the people in drug or alcohol services also have a mental health challenge. Around one third of patients in mental health services also have a drug or alcohol problem. My organisation works with many people who have multiple needs. We estimate that at least one in five people we support—at last count we provided a service to 136,000 people—with mental health challenges also need help with serious substance misuse.

All too often, the presence of a drug or alcohol problem alongside a mental disorder is used as grounds not to treat people. They are turned away, as has been pointed out, from mental health services when they are in the greatest possible need. From our experience, people with a so-called dual diagnosis of mental health and substance misuse problems have been turned away from mental health services in the past due to the current exclusions. Consequently, people are not receiving the help they urgently need. This has consequences across the social care system. Their mental health deteriorates even further and community services endeavour to help, despite being ill equipped to do so.

I offer an example. The Bill is often given colour when we talk about its effects on human beings. Sarah is 38 and has a diagnosis of depression and borderline personality disorder. She also has long-standing drug and alcohol difficulties and self-injures on a regular basis. When admitted for in-patient treatment, she is often put on a contract stating that she will be discharged if she self-injures or uses drugs or alcohol. These are her coping strategies; the use of alcohol or drugs is often a form of self-medication, a way of coping with mental health issues. So she invariably resorts to drinking or self-harm, and so she is discharged. On occasions she is not admitted at all when expressing suicidal thoughts because she has been drinking.

Simply educating mental health staff about substance misuse will not be enough to solve this problem. While I agree with the comments about resources and training, it is not enough. The reasons why people use drugs and alcohol are complex and often misunderstood. Sometimes it can be to self-medicate and treat the symptoms of mental illness but is often interpreted as resistance to treatment or to engagement with services. It is important, if we are going to have a Mental Health Act and spend time engaged in ensuring that those in need receive treatment, that we pay attention to this group, which is a growing challenge to mental health services throughout the country. That has already eloquently been pointed out by the noble Baroness, Lady Murphy.

I want to comment on the race issue, without repeating what has been said already here or in the joint scrutiny committee. There is considerable evidence that BME groups, particularly those from Afro-Caribbean backgrounds, are more likely to be diagnosed with a severe mental disorder. Simplified definitions where exclusions are removed increase the degree to which diagnosis of mental disorder depends on the subjective judgment of clinicians, which the literature now states with ample evidence is sometimes subject to quite racist interpretation. I am sure that my noble friend Lord Patel of Bradford can give chapter and verse on this, as chair of the Mental Health Act Commission.

Given the evidence that racial stereotypes are significant factors underpinning notions of mental disorder, that is likely to amplify the extent to which race is a factor in defining such disorder, in effect widening the pool of people to whom legislation could be applied and who will be affected by the existing skew toward black and minority-ethnic groups, a situation made worse by amendments.

I support Amendment No. 5. It would be wrong to prevent the treatment of someone suffering from alcohol or drug abuse if they had a co-existing mental disorder. It is well-known that alcohol or drug abuse, or both, can exacerbate a mental illness such as schizophrenia.

Some years ago, I was involved with an alcoholic man who would suddenly lapse into a schizophrenic state when he had been drinking alcohol, becoming a dangerous and different person. There were several frightening incidents; once, he threatened a friend of mine with a knife. It would be wrong to make alcohol or drugs an excuse for not treating the mental illness.

Far too many people residing in Her Majesty’s prisons suffer from schizophrenia and do not get the treatment they need. That is of great concern to many, including prison governors. Will the Bill address that dilemma?

It seems to me that this group brings us to the heart of some real difficulties in applying legislation, and the law in general, to mental illness. It is not like physical illness; it is about the very essence of people and what they are, which is a very difficult issue.

The issues of diagnosis, management and practical reality all come to ground in this group, as the Government have recognised by introducing a specific exclusion. Nothing in the provision says that the exclusion is on a point of principle or a particular kind of difference in terms of psychology or psychiatry. It is quite clear that dependence on alcohol and drugs involves a disorder of the mind. There is no doubt about that. There is not much doubt either that it is also similar to lots of other kinds of addictive behaviour. When treating one of these folk, often you get rid of the alcohol problem and they turn to drugs; then you get rid of the drug problem and they turn to gambling, an eating disorder or whatever.

It is not an issue of principle, and the Government know perfectly well that if they were to include all those people as likely to be detained, the services would collapse completely because of the enormous number of people involved. It is not to do with there not being a possibility of violence; in fact, there is a much greater likelihood of violence from this group of people than from people suffering with schizophrenia. However, the Government recognise that they cannot cope. The truth is that they cannot cope with lots of the other folk they are going to bring in anyway. It is hard enough to find a bed for a psychotic young suicidal patient at the moment, and it will be even worse with a lot of these other things.

Let us take the reason for some of the exclusions being set down here. Some are about real difficulty of diagnosis. If, for example, someone comes along and speaks about being low-spirited—they are not sleeping at night, they have lost interest in a lot of their affairs and are not behaving in their usual way—they might well have a depressive disorder but, of course, if their wife died three weeks ago, it would be a perfectly normal reaction to one of the vagaries of life. As my professional colleague the noble Baroness, Lady Murphy, pointed out, the difficulty is that if you do not look for all of the things that are around, the diagnosis can be faulty.

Taking personality disorder as an example, there is often a circular argument: this person is breaking the law; they do it repeatedly and do not stop; there must be something very disturbed about somebody who behaves in that way; therefore, they have a personality disorder and need to be treated. More insidiously, if the psychiatrist does not have much understanding of or sympathy for the cultural or religious background of the person involved, there is another kind of circular argument: this person has some very strange ideas; they might be religious ideas. I come from a part of the world where a lot of the religious ideas that are very current among people would be regarded as quite mad on this side of the water. I refer not just to religious ideas. One colleague came across to work in Northern Ireland, and after interviewing one patient said, “I think we have a really paranoid person here”. When I asked why, they said, “They think that if they go up this particular road they will be attacked because all sorts of people will be against them because of their religion”. I said, “They are not paranoid; they are realistic”.

I guarantee that the reason for the undoubted fact that many more people from Afro-Caribbean backgrounds find themselves in a mental hospital is that there is less understanding of the cultural and religious beliefs and actions of many of those people by my colleagues in psychiatry. You find a difficulty in coping with and managing someone who has a very different set of understandings of what life is about. You think, “It’s a bit strange. How am I going to deal with it?” At present, the fastest growing special interest group in the Royal College of Psychiatrists is the spirituality group. It is not so long since there was no such group. Why? Because 10 or 15 years ago, it would not have been politically correct to regard spirituality as a proper professional interest within psychiatry. Now, people have begun to change their view of it.

This amendment tries to point out that, without a serious look at understanding issues such as culture, politics, religion, breaking the law, sexual behaviour and so on, we could end up dragging into the net all sorts of people who are not suffering from mental illness in a proper sense and it becomes a question of how we deal with people who are difficult, different or deviant in our society. That is a real problem for colleagues in psychiatry, not least because of a move to diagnosis on the basis of people’s behaviour and a set of symptoms, rather then necessarily understanding something more about the depth of the disorder and its likely prognosis.

Unfortunately, over the past few years I have heard from Ministers a set of views that suggests that there is a simplicity about all of this—that it is very easy to be clear about certain matters; that clearly psychiatrists are not taking their responsibilities seriously and are avoiding all sorts of issues because they are distasteful or difficult. The reality is that these are difficult questions, not susceptible to clean bits of legislation. Psychiatrists sometimes have real difficulty assessing these things, and find themselves lapsing back into making mistakes because of their own cultural, religious, or political views.

I ask that we take these things seriously, not because Amendment No. 4 necessarily solves all the problems, but it points up some of them, and I hope that Her Majesty’s Government take that problem very seriously.

The background to these amendments has already been stated, but I briefly want to look at their importance from the other end of the telescope. It takes me back to the days when I was a GP. I am remembering two patients; one came in and told me that he wanted to kill somebody now, and that he had a knife in his pocket and an axe in his bag. With persuasion, he handed me the knife to lock up and then agreed to go and see a friend of mine, who was a psychiatrist. The other was a young man who came in because he was frightened by his tendency to be enormously attracted to the choir boys at his church. The ability to come in and seek help early is terribly important in making sure that people who might progress to harm others do not do so.

We have to give society a powerful message, not that the Bill is about locking up people who may be seen to be deviant in any sense, but that it is a mental health Bill for people who have mental health issues. Social control is another parameter in society, but we should not use psychiatry as the lever for social control, particularly not when psychiatry is dramatically under-resourced. I am worried that if the message of the Bill is that if someone expresses any of those tendencies he is more likely than previously to be locked up, then those tendencies will not be expressed to a clinician or somebody who can help, they will be expressed by being acted out and somebody will be sexually harmed or killed.

I am grateful to noble Lords for tabling Amendments Nos. 4 and 5. My noble friend Lord Hunt mentioned earlier that, as a general rule, we have sought in the Bill to remove arbitrary obstacles to the use of compulsion where it is called for by the risk posed by a person’s mental disorder. The more we qualify and limit the definition of mental disorder, the greater the risk that some people will be excluded arbitrarily to their own disadvantage and potentially to the detriment of other people. It serves no one’s interests if decisions end up being taken on the basis of diagnostic or legal labels rather than the needs and circumstances of individuals.

We recognise that these are complex issues. We are not being simplistic, and I stress that we takes these issues very seriously. In relation to alcohol and drug dependence, I do not think there is any disagreement between us. Although it is clearly clinically regarded as a disorder or disability of the mind, it is excluded from the Act at present. The Bill keeps it that way, as we are persuaded that it is not appropriate to use the Act to force people to accept treatment for addiction where it is not linked with another mental disorder.

However, we do not agree that substance misuse in general should be excluded. The term “misuse” is used in a variety of ways. If all it means is the use of alcohol or of drugs that have the potential for harm or which are illicit, then the exclusion is unnecessary. Merely using alcohol or drugs is not regarded clinically as a mental disorder, and our understanding is that the same applies to an episode of misuse. However, if “misuse” is intended to mean the consequences of such behaviour, then we profoundly disagree with the suggestion that it be excluded. Many consequences of misuse, from acute intoxication to substance-induced psychosis and withdrawal states, are recognised mental disorders. Any of them, even intoxication in its most severe forms, might, in particular circumstances, warrant compulsory intervention under the Act. It would be wrong, arbitrary and to the detriment of patients to exclude such consequences. They are not excluded now, yet it is not, as far as we are aware, suggested that people are commonly, if ever, detained inappropriately as a result. If the problem is that psychiatrists fear being pressurised to detain alcohol and drug misusers inappropriately, I do not believe that that is a compelling reason for excluding people who might otherwise benefit. If they do not think detention is clinically appropriate, or patients do not meet the relevant criteria, psychiatrists should have no difficulty explaining to their colleagues that using the Act is not an option.

The amendment next seeks to exclude sexual behaviour. If we are literally concerned with sexual behaviour, then we again believe the amendment is unnecessary. An episode of sexual behaviour, however unusual or, indeed, illegal, is not, of itself, diagnosable as a mental disorder, any more than setting fire to something constitutes pyromania. However, particular sexual behaviour may well be a sign of a mental disorder. Noble Lords have been careful to draft the exclusion in terms of no one being considered mentally disordered solely on the basis of sexual behaviour, but, even so, I worry what effect the exclusion might be interpreted to have, rightly or wrongly, in cases of people who, for example, have a personality disorder that manifests itself in their sexual behaviour.

The noble Earl and the noble Baroness, Lady Murphy, mentioned gender dysphoria and gender identity disorders. While we acknowledge that gender dysphoria is clinically recognised as a mental disorder, the allegation that people can now be detained because of it presupposes that it could be regarded as sexual deviance. We struggle to see who, let alone which healthcare professionals, would think of gender identity disorders in those terms. Similarly, we do not see how a new exclusion for sexual behaviour would change the position. If the exclusion is meant to protect lesbian and gay people, it is again unnecessary. It is now firmly accepted that homosexuality is no more a mental disorder than heterosexuality. We do not believe any doctor would attempt to detain a patient on the basis of sexual orientation, let alone that another doctor and an approved mental health professional would agree, and, if they did, we are confident that no court would uphold their decision.

If, however, the intention is to replicate the current exclusion for sexual deviance, we think it is wrong in principle. Although we have heard contradictory arguments, our understanding is that there are conditions that a lay person might regard as sexual deviance that are clinically recognised as disorders of the mind. They include paraphilias such as voyeurism, necrophilia and paedophilia, where they have a significant effect on the person’s functioning or pose a significant risk to others. We see no reason to distinguish those disorders from any other, and that view was shared by the Joint Committee that scrutinised the admittedly very different 2004 draft Bill.

It is nothing new for dangerous paedophiles to be detained under the Act, as their behaviour is often linked to dissocial personality disorder, or, in the current ungainly terminology, psychopathic disorder. If such people can properly be detained under the Act, we see no reason why clinicians should be barred from using the Act to treat patients whose only clinically recognised disorder is one involving abnormal sexual desires or behaviours. If that is what the clinicians concerned believe is the right approach for the individual in question, then, provided all the relevant criteria are met, we believe the Act should allow it.

Perhaps I may clarify what the Minister said, because I was really quite struck by it. It is not at all uncommon for people of any age or either gender to achieve sexual excitement and satisfaction through partial self-asphyxiation. It is not a one-off; it is regular behaviour. It is clearly a disturbance of sexual behaviour. Such people are a risk to themselves and, from what has just been said, I cannot see how they would not therefore be liable to be compulsorily detained. Will the Minister clarify whether I am correct in that or whether there is something that I am missing?

The key question is whether the person has a mental disorder and how the criteria for that mental disorder are defined. The fact that that person has what we would regard as a sexual deviancy does not mean that they have a mental disorder. It is important to remember that the criteria for detention include whether it would be appropriate for them to be treated in hospital. A clinician would decide that. If that person should be treated in hospital, clearly the clinician believes that that person has a mental disorder. If they do not believe that that is the case, they will not ask for him or her to be treated in hospital. If the noble Lord would like me to clarify those points in writing, I shall certainly do so and place a copy in the Library.

That would be extremely helpful, because it seems to me that the Minister’s answer does not clarify things. If some further thought were given to it, perhaps the inconsistencies might become even more apparent.

I shall certainly write to the noble Lord.

I am not aware that it is suggested that the commission, or likely commission, of illegal or disorderly acts is, by itself, a clinically recognised mental disorder. Hence, the proposed exclusion is again unnecessary. It has been suggested by noble Lords, and in the evidence cited by the noble Baroness, Lady Barker, that the purpose of the amendment is to prevent the Act being used for social control. If that is the case, we are fully supportive of the objective. However, the Act already achieves this objective. This is a mental health Bill; it is not about social control. We are all aware of what happened in Russia, and noble Lords have quite rightly brought this to our attention, but this is not what this Bill is about. The most that the proposed new words in the amendment could achieve is wrongly to suggest that, in other contexts, such behaviours would be mental disorders or, worse still, that they might place uncertainty in the minds of professionals, and even the courts, about whether behaviours of this kind can be taken into account when deciding whether someone has a mental disorder.

Redundant material should not be included in Acts both as a matter of good drafting practice and for fear that an unintended meaning will be read into any such words. The courts will assume that Parliament would not have put material in the Act if it were unnecessary. However carefully drafted is an exclusion—I know that noble Lords have been most careful in their drafting—there is always the risk of it being interpreted in an unexpected way or being misunderstood and misapplied in practice. If, as in this case, an exclusion is unnecessary to start with, we think it better not to take that risk, remembering that what is at risk is whether people get the treatment they need to relieve their own suffering and, where relevant, protecting other people from harm.

Many noble Lords understandably raised the issue of people from black and ethnic minorities being disproportionately affected by the Act. We fully acknowledge that rates of admission and detention are significantly higher for some BME groups and that they are more likely to arrive in care through the criminal justice system. Once in hospital, some groups of BME patients are more likely than white British people to be subject to measures such as seclusion or restraint. This fuels a circle of fear which deters many BME patients from seeking early treatment for their illness. We have heard many examples of that cited today. The reasons for this are complicated and still not fully understood, but the problem has effectively been left unchallenged by government for decades. Last year, we published a comprehensive, five-year action plan for delivering race equality in access to services, experience of services and outcomes from services. A high level of resources has been committed to the plan and it has made a sound start. Bridging the system of equalities once and for all might not be easy, but we cannot be satisfied with anything less.

However, excluding cultural and religious beliefs from the definition of mental disorder is unlikely to help. It is possible of course to have disordered cultural and religious beliefs in any culture or religion, and indeed in any person, regardless of whether they see themselves as belonging to a particular culture or religion. Such beliefs may well be symptoms of clinically recognised mental disorders, but in the absence of such a disorder, political or cultural beliefs, values or opinions are simply not mental disorders. It is therefore unnecessary and potentially a source of uncertainty and misunderstanding to exclude them from the definition.

Disordered thinking and beliefs are central elements of many mental disorders. That these are expressed in cultural, political or religious terms makes them no less disordered than if they were expressed in any other terms. But it is axiomatic that in diagnosing whether thoughts are disordered, professionals must understand them from the patient’s own perspective. However strange a thought or belief may appear to be to someone else, it is not a sign of mental disorder unless it is disordered within the framework of the person’s own cultural, political and religious heritage, convictions and attitudes. We therefore do not think that this needs to be said in the Bill.

The noble Baroness, Lady Murphy, asked why the Government said that cultural beliefs could be signs of mental disorders. This is not what we said and indeed it would have been extraordinary had we done so. What we meant was that sometimes disordered thinking expresses itself in religious, political or cultural terms.

The noble Baroness, Lady Murphy, in one of her fascinating contributions—she opens a world to me of which I know nothing—reminded us of how psychiatry was used in Russia, Germany and so on in comparatively recent history and she added that this was done in many cases with the best will in the world of the psychiatrists who thought they were doing the right thing.

When the Government think about this—if they do, and I hope they will, or if they do not, we will make them think about it—will they consider what would happen if a group of recently arrived immigrants was sitting in the Gallery, immigrants from central Europe, from Russia, from Germany, and they heard the Minister say there was no need to put in a Bill like this the fact that you could not be shut up as a case of mental illness because of your cultural, religious or political views? Those people, I believe, would be astonished. They are citizens of this country. It is going to apply to them. Surely the Government have got to think of their point of view. Will the Minister remember that?

Of course we will consider the point of view that might be expressed by that group of people. But we have to distinguish between the democratic system in which we live and the system that existed previously in the Soviet Union, East Germany and other countries under the Soviet flag. The situation in this country is very different: we have safeguards, such as the courts and the law. We are confident that the safeguards we already have and those we are putting in place are adequate to ensure that this legislation will not be used for social control. This is a Mental Health Bill—it has nothing to do with social control.

I understand the root of the concern, but let us touch briefly on the Soviet Union point. When those people were locked up in mental institutions—Solzhenitsyn was perhaps the classic example—most of the doctors knew that what was being done was wrong. The problem for them in most cases, as it was for the directors of the institutions concerned, is that irrespective of whether they agreed or not, if they did not do it they lost their job at best and ended up as an in-patient at worst.

What stops this happening, as my noble friend just indicated, is not the definition in the Bill but two things—the rule of law, which did not exist in the Soviet Union or Nazi Germany and, very importantly, mental health tribunals plus the regular review of cases. That is important because in the old bins, as they were called, and of which I have considerable knowledge from the past, the police would bring someone along who was behaving atrociously and, they thought—rightly or wrong—madly, throw them to the nurses who would often half-strip the person and bung him into a padded cell. Sometimes the person went free a few days later, but sometimes they stayed there for a very long time and became institutionalised. There were pluses and minuses to that, mainly an awful lot of minuses, so I was pleased when that system ended.

What was missing then—never mind the Soviet Union—was the application of mental health tribunals which allow people to challenge the system. The issue is not really whether such a thing could happen, because any authoritarian Government could just lock people up if they chose to do so. However, the checks in place in a western democratic society that has the rule of law are the law itself and the pretty sophisticated mental health review tribunal approach which we have developed in recent years and which I welcome greatly. That is what prevents the system returning to what it was in the Soviet Union as well as to what was considered fairly normal here in the 1950s and earlier.

We have seriously overrun our time, and I am sure that noble Lords will thank me for being brief. The Minister’s reply was not unexpected but it was disappointing. I was disappointed that none of what was said so powerfully by the noble Baroness, Lady Murphy, or the noble Lord, Lord Alderdice, made any impact.

The Minister took a very purist line. What we have heard in evidence from the real world, described by the noble Baroness and the noble Lord, was, I hoped, enough to stall her in her tracks, but that proved to be a fond hope. What she said did not appear to me to be based on the real world; indeed, her reply to the noble Lord, Lord Alderdice, seemed largely circular. She talked about not excluding people who drink habitually and have withdrawal symptoms. That is exactly the group that the Government are excluding from the Bill—that is what alcohol-dependence means. The Government’s position on this issue is extremely confused.

The key question is whether the Bill should be used for moral control of, for example, drunkenness, fetishism, and so on, or for the treatment of people who are ill. The Bill should be used to treat people who are ill. I was very struck by the story told by the noble Baroness, Lady Murphy. Twenty years ago a psychiatrist of my acquaintance asked a Russian psychiatrist whether people who tried to escape were detained in Soviet mental hospitals. The psychiatrist said yes, but only if the person was mentally ill—but only a mentally ill person would try to leave the Soviet Union. That was the kind of distortion of professional ethics to be found there.

The noble Lord, Lord Soley, spoke extremely powerfully, but I return to my earlier point about perception and trust. If you have people in the black and ethnic minority communities who simply do not trust the system as they find it because of real discrimination, something has to be done. It is a feature of the legislation of all Commonwealth jurisdictions that I know of for there to be exclusions; it is part of the way in which legislation that deprives people of their basic rights needs to be confined. I include in that all the Australian states, New Zealand, Ireland, Scotland and at least some of the Canadian jurisdictions.

The noble Baroness, Lady Murphy, said that this amendment was about stopping detention creep. That is a very good way of putting it; its aim is to prevent inappropriate detention. As the noble Lord, Lord Alderdice, put it, we are in danger of driving into the net a large number of people who should not be there. This is a set of issues to which I am sure we will have to return. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 5 not moved.]

Clause 3 agreed to.

I think this is an appropriate moment to break. I suggest that Committee stage does not begin again before 9.27 pm. I therefore beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

rose to ask Her Majesty’s Government what representations they are making to further the independence of West Papua.

The noble Lord said: My Lords, I am grateful to the Government for allowing time for this short debate and, in particular, to the speakers who put their names down. We all feel some sympathy and admiration for the noble Baroness, Lady Royall, who has had to battle in such an indomitable way for so many hours already, and must now face a fresh subject.

West Papua may seem far away and its problems small compared with the very grave situation in the Middle East. To its people those problems are immediate and painful, and the principles at stake are fundamental to civilised life in the modern world. The issue at the heart of this question, as in the conflict in West Papua itself, is whether a people have the right to self-determination and, if so, how we ensure that they can freely choose to exercise that right. The West Papuans are a people—the same people as those of Papua New Guinea on the east of the island— who obtained their independence from Britain over 30 years ago. They have no desire to be ruled from Jakarta. As a Foreign and Commonwealth Office briefing in 1969, now publicly available, put it:

“Privately, however, we recognise that the people of West Irian (West Papua) have no desire to be ruled by the Indonesians who are of an alien (Javanese) race”.

It went on to say that,

“the process of consultation did not allow a genuinely free choice to be made”.

That is putting it very mildly. The so-called Act of Free Choice consisted of 1,026 people being forced at gunpoint to vote for integration with Suharto’s Indonesia, and this being taken as the voice of the people.

That this is the case is now publicly recognised by the British Government. In a historic statement to this House in answer to a Starred Question in my name, the noble Baroness, Lady Symons, who was then the Minister, acknowledged that,

“there were 1,000 handpicked representatives and that they were largely coerced into declaring for inclusion in Indonesia”.—[Official Report, 13/12/04; col. 1084.]

The question now is: what can be done to rectify this historical wrong and what is the next step? In particular, what steps are the Government taking? The policy of the Indonesian Government is to divide the country into three provinces, two of which have come into being with, in theory, a limited degree of local autonomy in each one. It has to be said plainly that this policy is not working and will not work. It is leading to increasing unrest, human rights abuses and the build-up of military forces in each of the three areas. I am afraid that it is the age-old policy of divide and rule—a policy that has a particular economic dimension in West Papua, when one province has the liquid gas. It will not satisfy the West Papuan people who wish for self-determination as a people, not rule from Java through a well-funded elite and a strong military presence. Where do we go from here? I have three questions for the Government. I leave the important question of arms sales, particularly arms that can be used for internal repression, to others.

First, will the Government take the lead in bringing this issue to the United Nations? I do not underestimate the difficulties. A number of powerful countries have strong economic ties to Indonesia, not least in the arms trade, and will be only too anxious not to make a fuss about this matter, as they were anxious not to make a fuss about it at the time of the so-called “Act of Free Choice” in 1969. We are, of course, one of those countries. But this Government, through the noble Baroness, Lady Symons, had the honesty to admit that what happened in 1969 was a total travesty. The Government can only enhance their reputation by carrying this issue forwards with—and these are the key words—a steady and consistent policy.

The public recognition in this House in December 2004 was only a first step. To mean anything, it must be pursued. In particular, will the Government make a public commitment to support a UN-sponsored rerun of the flawed in 1969 “Act of Free Choice”, this time as a genuine, one-person-one-vote referendum, internationally monitored and giving the tribal peoples of West Papua the chance to choose freely between independence, free association or continued integration with Indonesia.

Secondly, will the Government make more specific representations about the human rights abuses taking place, documented by Amnesty International? It has been estimated that, since 1969, more than 100,000 West Papuans have been killed and there are now some 9,000 refugees in Papua New Guinea. The Catholic Church's Papuan Peace and Justice Secretariat reported in June last year that students who had been arrested after a peaceful demonstration and been interviewed by their investigators had been denied access to legal representation and had suffered physical and mental torture. At present, there are more than 100 political prisoners in West Papua of whom I mention only two this evening, Filep Karma and Yusak Pakage, who were jailed for 15 and 10 years respectively for raising the West Papuan national flag—the morning star—on 1 December 2004, and who have been recognised by Amnesty International as political prisoners. The date of 1 December is significant because that was the day in 1961 that the Dutch granted West Papua independence, an independence which was quickly and sadly lost when Indonesia invaded the island in 1962, claiming it for themselves.

I understand that the Government are generally monitoring the situation of political prisoners through their embassy in Jakarta, but will they specifically raise the issue of these two prisoners of conscience, Filep Karma and Yusak Pakage, with the Indonesian Government and make it clear to them that not only must they be treated humanely, but that the basis of their charge and imprisonment is totally unacceptable in any society that claims to be democratic?

Then, thirdly, arising from this there is the whole question of freedom of speech, freedom of assembly, freedom to form political parties, freedom of access for journalists and NGOs and the importance of achieving a genuine dialogue between the Indonesian Government and the people in West Papua who wish to raise the issue of self-determination.

At the moment the Indonesian Government lay down a pre-condition that this subject cannot even be raised in discussions. Yet that is the issue at the heart of this conflict. The West Papuans are a peace-loving people and they want to talk about what matters to them. At the moment, this is prevented by the heavy military presence and the refusal of the Indonesian authorities even to allow certain questions to be raised. Linked to this is their refusal to allow access to outsiders who raise these questions. In May of last year the UNHCR’s regional representative said in evidence to an Australian Senate inquiry,

“I can confirm that, despite repeated requests, the UNHCR has not been given permission by the Government in Jakarta to have access to West Papua”.

Other aid agencies and nearly all foreign journalists, as well as Amnesty International’s fact-finding mission, have also been refused permission to visit.

After its historic recognition in December 2004, I hope that the Government will pursue this matter with a steady and consistent policy in three ways: first, with a view to achieving a genuinely free vote about self-determination; secondly, by raising the matter of serious human rights’ abuses, particularly in relation to Filep Karma and Yusak Pakage; and, thirdly, by urging the basic freedoms of speech, assembly and access, which are absolutely fundamental to any country that regards itself as democratic.

My Lords, the noble Lord, Lord Harries of Pentregarth, is to be congratulated on bringing this matter to our attention. He has long championed the human rights of the people of West Papua, keeping their plight before the House and the British public for a number of years. He is to be thanked for doing so again this evening, and the least that we can do for him in this short debate is to press my noble friend the Minister to inject some urgency into efforts to address the flagrant denial of justice to the people of West Papua. The noble Lord has put forward an admirable programme and some practical suggestions. If every speaker simply does that, it might give the weight of the whole House this evening to some practical outcomes.

As the noble Lord said, when my noble friend Lady Symons of Vernham Dean admitted in an answer to a previous debate that the 1969 Act of Free Choice was a flawed exercise, she went on to ask a simple question: “What should happen now?”. She gave the beginnings of an answer to her own question by suggesting that, as 35 years had passed since the flawed referendum of 1969, it would be better to look to new proposals then being put forward than to continue to harp on about ancient events. Special autonomy legislation only recently passed by the Indonesian Government would, she said, grant,

“70 per cent of oil and gas royalties originating in Papua—as well as 80 per cent of forestry, fishery and mining royalties—to the people of Papua”.—[Official Report, 13/12/04; cols. 1084-85.]

A truth and reconciliation committee had been set up to look into a number of the offences that people were complaining about. It would be best, said the noble Baroness, to see how the measures were embedding before we mapped a way forward.

What she did not say was that, between 1969 and 2004, the same 35 years that were considered to have consigned the referendum to ancient history, there had been a massive transmigration programme that brought 1.2 million people into West Papua of Javanese and Sumatran origin, nearly all of them Muslims. That changed the nature of Papuan society and culture radically. The Indonesian Government implemented the same policies at roughly the same time in East Timor and with the same objective—to change the nature and allegiances of a people who were being obstreperous and seeking their rights of self-determination. Incidentally, in Eritrea, Ethiopia attempted the same business of changing the nature of the population to achieve its ultimate goals.

The benefits of the new legislation—the special autonomy legislation—would accrue not to a Papuan population at all but to one so radically different that fewer than 50 per cent of the population were the original indigenous Papuans in the first place. The noble Lord, Lord Harries, mentioned the large number—more than 100,000 at the lowest estimates—of people of Papuan origin who had been killed in the same period.

We have seen in the way in which Eritrea was abandoned by its United Nations overseers in the post-war period to the whims of Ethiopia a similar case of injustice. It was a United Nations set-up body that in New York allowed Indonesia to annex West Papua to itself. The Eritrean People’s Liberation Army fought a long war of attrition to attain its rightful status, and I was present on the day of the referendum in 1993 when, with great jubilation, at last the Eritrean people felt that they had gained their objective despite the opposition of the international community; so, too, the Free Papua Movement may be counted on to maintain its opposition to the present arrangements and to seek the support of the world community in achieving its legitimate objectives.

The 1969 Act of Free Choice was both cynical and wrong. It involved about 1,000 hand-picked people; a significant number of them were tribal leaders who were rounded up a month before the referendum and indoctrinated so that they would vote as they were obliged to, at gunpoint, on the day of the referendum. The voting exercise was overseen by, of all people, the Indonesian army, mainly. There were a couple of objective overseas observers, but they left before the vote was completed. All responsible commentators agree with that analysis. No amount of truth and reconciliation will hide or play down that basic fact.

Indonesia has been seen by all the major players in the West as an important bastion against communism. The United States has played a significant part in seeing the outcomes that we are discussing this evening come to pass, but our own country is associated with it and so is Australia. Even the Vatican, because of the significant number of powerful Roman Catholics in the Indonesian republic, has preferred to turn a blind eye to some of these questions on the margin of its consideration.

In view of that, we must ask ourselves how we implement an ethical foreign policy towards this small region. The question will not go away; it did not do so in Eritrea or East Timor, nor will it in West Papua. I hope that my noble friend will help her colleagues in government to show a preferential option to those suffering injustice, as this is a case clamouring for appropriate attention.

My Lords, together with my noble friend Lord Griffiths, I congratulate my noble friend Lord Harries on again drawing attention to a subject that for too long has represented a dereliction of responsibility by the international community. Any unlawful usurpation should evoke condemnation if international law is not to be brought into disrepute, but here there has been persecution, murder, evictions and burning of the villages of innocent human beings, while the world has looked on. Surely that will reflect opprobrium on our generation from those who come after us.

We could debate at length the precise criteria for the right of a people to self-determination. Those debates go back to the League of Nations, but today we are spared legal hair splitting. Here, there is a population of 800,000 people, racially differentiated from the population of Indonesia, with its own history, culture, and inhabiting a clearly defined territory, yet ruled by an alien administration which by a persistent policy of repression and terror has made itself hated and feared.

We have every criterion for the right to self-determination. The principle is declared in Article 1.2 of the United Nations charter and further enshrined in the two human rights covenants of 1966. There is clear consensus that two principles follow. First, the right includes the right of a people to decide how to exercise its choice. It is for the people to decide who their delegates are to be and what the decision-making process is to be. They are entitled to do that free from any pressures, internal or external, after such free discussions as their choice may require. Secondly, the right is continuing and not exhausted once it has been exercised, validly or otherwise. A right to choose entails a right to make continuing choices as circumstances change or simply if there is a change of mind. A third principle, while we are passing, is that the right includes a right to enjoy the natural resources of the area and to decide how they are to be developed and exploited. Article 1.2 of the international economic covenant reads:

“All peoples may, for their own end, freely dispose of their natural wealth and resources”,

subject, of course, to existing obligations.

The situation has a shamefully long drawn-out history of which the international community has no reason to be proud. In 1949, the Netherlands Government conceded independence to Indonesia, but vast areas had been included in the territory purely for the purposes of administration and not by any stretch of the imagination because they were a natural part of Indonesia. The Indonesian Government said that the newly acquired statehood should extend throughout that territory. The Netherlands Government said that the peoples of West Irian were entitled to decide whether they should be included in the new state or whether they should have some other status.

Up to that point, the Papuan people had not been invited to participate in the discussions. The Netherlands said that the issue should be decided by the United Nations. Indonesia said that it was an internal matter, not the concern of the international community, and that it should be resolved by negotiations between Indonesia and the Netherlands, which clearly would never eventuate in an agreement. Nevertheless, the General Assembly discussed the question in 1954 and again in 1961 but was unable to agree on a resolution. It is worth pointing out that in those debates West Papua had no representation—it had no seat in the General Assembly.

On 31 December 1961, West Papua achieved a very short-lived independence. The Indonesian Government terminated it unilaterally by military force. In 1962, Indonesia and the Netherlands reached the New York agreement, which was designed to resolve the issue. The Netherlands would transfer administration of West Papua to a United Nations Temporary Executive Authority established by and answerable to the Secretary-General. It was said that arrangements would be put in place for the people of West Irian to choose in accordance with international practice and with the participation of all adults, male and female. That agreement was approved by the General Assembly, so it was accepted by all concerned that the population of West Papua was a separate and identifiable people entitled to self-determination. I hope that, in replying, my noble friend will clarify whether the Government accept that conclusion or, if not, why not.

The outcome of such a choice was predictable. We now know that John Kennedy’s ambassador reported 85 to 90 per cent of the population as being in sympathy with the Free Papua Movement. That outcome would have left Indonesia, as my noble friend Lord Griffiths said, blaming the West. The United States was concerned that if Indonesia turned to the communist bloc there would be an outpost of communism in east Asia. The Temporary Executive Authority proved to be very temporary. It was persuaded by the United States to acquiesce in the assumption of control by the Indonesian Government. That was fatal to any hope of a fair entitlement. It led to the infamous Act of Free Choice about which both noble Lords have already spoken, and I will not repeat that. It has been condemned by international lawyers and by other authorities again and again.

There the situation rests. The Indonesian Government introduced the special autonomy law in 2001, as my noble friend Lord Griffiths pointed out, but there has been no autonomy, and the atrocities go on. As all too often, the persecution, the murders and the incarcerations will continue for as long as the protest continues, and that will continue as long as the situation remains as it is. Any form of international action can take place only if it is initiated by a national Government. The United Kingdom Government still carry respect and influence in these matters. The question is whether they retain their dedication to an ethical foreign policy. I am sure that I know the answer that my noble friend would like to give; many of us are looking forward to hearing the answer that she is authorised to give.

My Lords, I, too, congratulate the noble Lord, Lord Harries of Pentregarth, on introducing this important debate tonight. There were many reasons for wanting to intervene; perhaps the whole issue of human rights, to which the noble Lord referred, would be sufficient in itself. We have a Government who claim that they want to see a world based on human rights, accountable government and democracy. They want to play a full part in working towards that world. It logically follows, therefore, that we have an interest in the injustice of the situation in West Papua.

I am afraid that I see in the situation too many sinister and ominous parallels with East Timor. I have visited Indonesia on a number of occasions, and I visited East Timor in the final stage, just before the terrible conflict that led to independence. The people of that part of the world are wonderful; they deserve more than they are enjoying.

Sometimes in debates of this kind we become a bit theoretical and remote in our analysis, and I therefore am not ashamed to bring to the attention of the House a letter that was brought to my attention fairly recently. It is an open letter written by Benny Wenda, the chairman of the Koteka Tribal Assembly and the leader of the West Papua Independence Movement, to the Indonesian ambassador in Britain, who had apparently expressed surprise that West Papua was seeking independence. This letter, written with some passion, was to tell him why. In the letter, Benny Wenda referred first to what we have already heard about the invasion of their land. He then referred to the referendum that was offered as a so-called act of free choice, which in fact was in the context of the ruthless intimidation of those who were likely to vote for independence. Then there was the removal of people to make way for the exploitation of gold, copper, oil and timber reserves. Again, ruthless techniques were employed, such as bombing from helicopters. People were rendered homeless, raped and murdered; all this was part of what happened.

Perhaps I can quote directly from the letter, which is passionate and written with real feeling:

“Then you started to rip open and destroy our Land. We call our Land our Mother because she gives us everything we need to live. You sold our Mother to British, American & Australian companies like Rio Tinto & BP. You got rich whilst we West Papuans got poorer, not because we want your kind of riches, but because without our Mother we die”.

He concluded:

“Now you say that we are ‘free and equal citizens of the new Indonesian democracy’. But when we tell you we want to use this ‘new free democracy’ to campaign democratically and peacefully for independence and when we just want to see our own flag flying in our own Sky, you cover our Land with soldiers, you put us in prison, you torture us and you kill us”.

I have no first-hand experience by which I can assess these accusations, but I have the experience of visits to Indonesia and to East Timor and I am afraid that the accusations ring all too true to me.

Obviously, it is not convincing to contemplate a world in which every ethnic group has a national identity of its own. That would make neither political nor economic sense. But consent is essential if countries are to stand together in meaningful democracy and freedom, and consent depends on trust. Where trust is absent—and it seems to be totally absent in this case—consent can hardly be expected. The genie is out of the bottle.

I have often wrestled with this conundrum. Should one come down on the side of every possible move to try to hold the situation together, or are there some situations in the world in which that task is so impossible because of the realities on the ground—as I say, the genie is out of the bottle—that to try to do so would only make a bad situation worse and the time may have come to recognise and come to terms with the inevitable? Look at what happened in East Timor before, eventually, the natural conclusion was reached.

I refer to our responsibility and I put it in the context of our Government’s commitment, of which I am very proud, to democracy and human rights, and in the context of the logical follow-through from such declarations of intention of what is necessary when faced with such situations. Of course there are also more tangible reasons for our responsibility, including the importance of the economic relationship between Britain and Indonesia, not least through arms sales, which indirectly compound the situation that we are describing. I hope that the Government will take the noble Lord’s entreaties seriously and can come to a candid relationship with Indonesia in which realistic talk takes place about the way forward.

My Lords, I am afraid that the short answer to the Question asked by the noble Lord, Lord Harries, is none, as the UK does not support the independence of West Papua and we were accomplices in its unlawful annexation by Indonesia. The right of self-determination, while undoubtedly a legal right, as the noble and learned Lord, Lord Archer, pointed out, is a matter of state practice in the absence of any rules for determining how it should be enforced. Therefore, is there any point now in reviewing the events that led up to the so-called act of free choice?

In the cases of Srebrenica and Rwanda, there were formal inquiries into how those appalling tragedies were allowed to happen. The Secretary-General himself took responsibility for investigating the Srebrenica massacre, in which an estimated 20,000 people were slaughtered by the Serbian militias. However, as two noble Lords have pointed out, in West Papua something like 100,000 people have been killed since the Indonesian occupation—five times as many as in Srebrenica—yet the UN has failed to review the conduct of the bogus operation carried out under its auspices that led to this enormous tragedy.

When I asked the Government six years ago whether they considered that an independent audit of the UN’s role should be commissioned, the noble Baroness, Lady Scotland, said that she was satisfied that the study being conducted by the Institute of Netherlands History would serve that purpose. That report, by Professor Pieter Drooglever, was published in November 2005 and, as has already been said, it confirms that the outcome had been pre-determined by Suharto, who had issued instructions that nothing but a ruling in favour of Indonesia would be acceptable. The UN observers were allowed to see as little as possible and were ejected from the territory immediately after the so-called vote.

The UN was directly responsible for what happened because it was nominally in charge from 1962, when the Dutch left, until November 1969, the date of the fraudulent act, although, as has been pointed out, from 1963 onwards the Indonesians were allowed to govern the territory. The UN returned only in August 1968 under an agreement which required it to,

“advise, assist and participate in”,

the arrangements for the act of free choice, which was to be carried out,

“in accordance with international practice”.

That was immediately violated by the UN itself, which failed to organise a plebiscite and, instead, agreed that the decision would be made by an assembly, whose members would be indirectly elected by an undefined electorate. As we have heard, the Indonesians chose the 1,000-odd candidates, all of whom were elected unopposed in batches, with the so-called “voters” browbeaten or bribed into approving them by acclamation. UN observers saw the elections of 195 of these stooges but, significantly, their report to the General Assembly was silent on the conduct of the operation.

By that time, the UN team had been whittled down to a mere 16 members at the insistence of the Indonesians, and it would have been impossible for it to fulfil its remit, even with full co-operation, in a territory the size of California with only the most primitive transport and communication systems. However, members of the team did not complain when no interpreters were provided or when they had to ask permission every time they wanted to move outside the capital. They failed to blow the whistle when they saw Indonesian soldiers and officials pouring into the territory in far larger numbers than planned and exerting heavy pressure on the Papuans to choose integration and give up the dream of self-determination.

That fraudulent process was endorsed by the General Assembly with the approval of the UK. The Permanent Secretary at the Foreign Office had recommended not entering into correspondence about self-determination, and in the UN we firmly supported the betrayal of the West Papuans, not on grounds of principle but out of solidarity with the Dutch and as a means of improving our relations with the military dictator General Suharto, who had done a splendid job exterminating half a million communists and was therefore a man to be encouraged.

The Government may not seek to persuade the UN that there should be a rerun, as the noble Lord, Lord Harries, called it, of what happened in 1969, but they should at least seek an opportunity to get the Drooglever report upheld and endorsed by the General Assembly, and that is what I ask the Minister to agree to. In other cases where the UN has failed to uphold the rights of peoples, it has recorded and acknowledged its appalling mistakes and their tragic consequences. Will the Minister agree that the act of free choice cries out for the same treatment?

More than that, should not the international community try to alleviate the suffering now being endured by West Papuans, unseen by human rights organisations, foreign journalists, the UNHCR and MPs, all of whom, as we have heard, have been refused permission to enter the territory? The EU Troika was invited in 2005 but declined because, I understand, at that time the Aceh negotiations were at a crucial stage. Will Ministers now ask the German presidency to seek a renewal of that invitation so that the present EU troika can at least go to see what is happening in West Papua today?

Unfortunately, although President Megawati made offers of special autonomy to Aceh and West Papua in 2001, there has been a complete divergence between the fortunes of the two provinces since then. In Aceh, a peace agreement was concluded in 2005 and successful elections have now been held there. Could not the lessons of that peaceful outcome be transferred to West Papua in principle—not in detail but, as has been suggested, at least by starting negotiations towards an outcome similar to that in Aceh? The present deployment of extra troops and paramilitary police is not the answer, any more than it was in Aceh. We should be saying respectfully to Indonesia that a framework is needed for negotiating a political settlement, building on the experience of Aceh, although perhaps involving not just the OPM but representatives of all the diverse communities in West Papuan society, including civil society, traditional tribal leaders, the church and the MRP. If we can ask for that, we shall be getting somewhere.

My Lords, I too add my congratulations to the noble Lord, Lord Harries, on securing this debate, particularly following the media reports over the festive season that suggested tensions are increasing.

Indeed, there are claims that a force of between 2,000 and 5,000 military and police mobile brigade personnel are currently undertaking an operation in the Punjaya region. I hope that the Minister will be able to comment on these very concerning claims in her response. No doubt she recognises, as did the noble Lord, Lord Judd, that some nationalist groups fear that Papua could become the next East Timor. That has a significant bearing on today's debate.

Papua, a name adopted in 2002, is currently a province of Indonesia. It refers to what some of your Lordships might remember from days at school as the region known as Dutch, New Guinea during the colonial era. Papua—nee Irian Jaya—became a province of Indonesia following a UN Supervised Act of Free Choice in 1969, the legitimacy of which, as the noble Lords, Lord Harries and Lord Griffiths, have already highlighted, remains disputed.

As your Lordships are aware, West Papua was the major beneficiary of a nation-wide decentralisation process started in 1999 and the special autonomy status introduced in early 2002. Measures included the formation of the Papuan People's Council and redistribution of resource revenues. Those measures were welcomed but we are frustrated and disappointed, along with many Members of your Lordships' House, by the continuing failure regarding the implementation of the special autonomy law. We on these Benches believe that the full implementation will lay the groundwork for a long-term resolution to the growing crisis in West Papua and will offer stability for the province. What recent steps have Her Majesty’s Government taken to encourage the Indonesian Government to proceed with the special autonomy law? Can the Minister inform the House whether the Prime Minister raised the issue during his visit to the country last year?

We could not have had a debate today without mentioning the human rights situation in Indonesia. There can be no doubt that it has dramatically improved, for which the administration should be commended. However, there is still a very long way to go. Significant concerns continue to surround violations by the Indonesian armed forces, restrictions on access to Papua for journalists and NGOs and a number of cases where prisoners have been convicted for treason for displaying the Papuan flag. Many of your Lordships will find it very difficult to consider that Filep Karma and Yusak Pakage have been jailed now for 15 and 10 years respectively for peacefully raising the independence flag, and yet army officers convicted of involvement in the murder of the Theys Eluay, the independence leader, in 2001, received only three years. What steps are Her Majesty’s Government taking to ensure that there will be a public debate regarding the human rights issues in Indonesia and in particular guaranteed open access for NGOs and journalists? What consideration has the Minister given to the calls for the Papuan People’s Council to be fully involved with the central Government of Indonesia in working towards an acceptable solution?

This has been a most interesting and detailed, if specialised, debate. As my right honourable friend William Hague said:

“We have the privilege of living in freedom. But with that privilege comes the responsibility to use our liberty to speak up for those who are denied it”.

It is important to consider West Papua within both its historical and current context, as much as we have great sympathy with many of the concerns raised today—indeed, we share some. However, we do not believe that meaningful dialogue with the Government of Indonesia can take place on the basis of calls for Papuan independence.

We support the UK Government in respecting the territorial integrity of Indonesia. We are not calling for the independence of Papua, but for an open, inclusive and frank discussion and the full implementation of the special autonomy law. We value our good relationship with Indonesia but we believe that it is dragging its feet on this issue. The Government could and should press harder to find, through dialogue, a peaceful, just and dignified resolution.

My Lords, I am grateful to the noble Lord, Lord Harries of Pentregarth, for introducing this debate. It is an important issue in which he has a long-standing interest. The people of West Papua are lucky to have such a fine and vociferous champion in the noble Lord.

I have listened carefully to the debate, but must start with a clear statement that the UK does not support independence for Papua. Like the vast majority of other international players, we respect Indonesia’s territorial integrity and have never supported Papuan independence. I note the comments of the noble Lord, Lord Harries, that the people of West Irian have no desire to be part of Indonesia. I respectfully point out that voter turnout of over 70 per cent in the elections last March perhaps suggests that they are becoming a little more content with the situation.

The best way to resolve the complex issues in Papua is through promoting peaceful dialogue between Papuan groups and the Indonesian Government. Meaningful dialogue with the Government of Indonesia cannot take place on the basis of preconditions of Papuan independence. President Yudhoyono has said that he is committed to a just, comprehensive and dignified solution, including through consistent implementation of special autonomy. We welcome this important objective, and encourage him to press ahead with it. The special autonomy legislation is enshrined in Indonesian law, and was supported by Papuan groups and the international community. Full implementation of the legislation will lay the groundwork for a sustainable resolution to the internal differences and the long-term stability of the province. The UK is of course also committed to improving the well-being and political participation of Papuan people, as well as encouraging freedom of expression throughout Indonesia.

My noble and learned friend Lord Archer of Sandwell cited the economic covenant, and many others have referred to the special autonomy legislation on oil and forestry revenue. The special autonomy legislation grants Papua 70 to 80 per cent of the royalties from natural resources rather than the tax revenue. Papua is receiving this and, to make up for the fact that it receives none of the tax revenue, the central Government pay 2 per cent more than to other provinces in Indonesia under devolution. In 2006, it received $438 million, higher than every other province in Indonesia bar one.

My noble friend Lord Griffiths of Burry Port referred to special autonomy issues. Many such issues still need to be implemented in the legislation, but progress is being made; for example, the establishment of the Papuan People’s Council and the election of a provincial governor. Legislation has been, or is in the process of being, approved on the use of Papuan symbols—essentially the flag and certain anthems—the special autonomy budget, forestry issues, protection of customary rights, health and education. Of course, there is much more to be done and we will keep pressing them to do so.

The noble Lord, Lord Harries, asked if the Government would support a review of the Act of Free Choice. If your Lordships will forgive me, I have lost that section of my papers, so I will come back to it shortly because I have something to say on that.

We are working with the Indonesian Government to support the most pressing economic and social needs of the Papuan people. Under Indonesia’s decentralisation laws, Papua’s directly elected governors and district heads have significant political and fiscal authority. The central Government have devolved control over every area but five to Papua: foreign affairs, defence and security, fiscal and monetary policy, religious affairs and justice. The UK, through the multi-donor decentralisation support facility and other projects, is working to build administrative capacity and ensure that these local Papuan governments are accountable to the people that they serve.

I return to the Act of Free Choice. Although we recognise that it was extremely flawed, the UK has no plans to support a review of that Act. We believe that is a matter for the Netherlands and the UN. As the 1962 New York agreement was between the Dutch and Indonesian Governments, and the UN oversaw the 1969 Act, we have little locus to question the legality of either. The 2001 special autonomy law allows the establishment of a truth and reconciliation committee to look at the incorporation of Papua into Indonesia in the 1960s, which we believe indicates that the Indonesian Government recognise the need to address the long-standing problems in Papua.

I think that my noble friend Lord Judd mentioned transmigration. Non-Papuan migrants make up about 35 per cent of the total population. However, in 2000 the Indonesian Government ended the transmigration programme in response to concerns about the ethnic mix. Spontaneous migrants continue to arrive in relatively large numbers, but there is no government programme to increase the number of non-ethnic Papuans in the region. I suggest that the special autonomy programme is therefore relevant to the lives of most West Papuans.

DfID is closely involved in formulating the governor’s development strategy, which will focus on the millennium development goals. DfID is looking to align its own funding for Papua with the governor’s vision. The DfID-funded multi-stakeholder forestry programme has been working to improve land use in Papua, by supporting detailed mapping and informed policy change. Papua is also a key area of focus for DfID’s HIV/AIDS programme, working through the Indonesian partnership fund for HIV/AIDS. Other donors are also engaged in Papua to improve conditions on the ground.

The UK is also working in a number of areas to promote dialogue and improve political participation in Papua. UK-funded human rights projects in Papua include funding for the Indonesian human rights commission—to travel to remote areas of Papua to investigate alleged human rights violations—public education about rights regarding treatment by the police, human rights training for the police and providing a police complaints post.

In respect of human rights, we do indeed have an interest, and I hear what your Lordships, including my noble friend Lord Judd, have said about the human rights situation in Papua. We believe that the human rights situation in Papua too is improving. There is little credible information to suggest that major systematic abuses of human rights are currently taking place, although I hear what the noble Baroness, Lady Rawlings, said. The major concerns are chronic low-level harassment, freedom of expression and association, and social and economic rights—as in other areas of eastern Indonesia. Of course, we will continue to take reports of human rights violations seriously; we raise these with the Indonesian Government, together with our European partners and as part of our bilateral dialogue. In response to the noble Lord, Lord Avebury, we will certainly make representations to the German presidency to resume the troika idea.

Several Jakarta-based correspondents, including representatives of the BBC and the Washington Post, received permission to visit Papua in 2006, including sensitive areas in the central highlands. We welcome this increased access for journalists. We regularly encourage the Indonesian Government to permit journalists to visit Papua to promote better international understanding of conditions within the provinces.

The noble Lord rightly raised the case of Filep Karma and Yusak Pakage who were shamefully imprisoned in 2005 for flying a flag identified with the separatist struggle. The Indonesian Government have obligations under the International Covenant on Civil and Political Rights and their own constitution to guarantee freedom of expression throughout Indonesia. We encourage the Indonesian Government to implement those obligations. As the noble Lord suggested, our embassy in Jakarta is monitoring the case; it will look into it further and make representations, if appropriate.

Several noble Lords mentioned that 100,000 people were killed. There were certainly brutal operations in Papua in the 1970s, which we deeply regret and condemn, but we believe that there is nothing to substantiate the figure of 100,000 people, but even if it were “only” 10,000, that is 10,000 too many. We continue to take reports of human rights violations seriously.

Papua is one of the wealthiest provinces in Indonesia in fiscal terms. However, most Papuans do not see the benefits of that wealth. Papua is the province with the highest level of poverty—40 per cent of Papuans live below the poverty line—and health, education and infrastructure are consistently below the national average. Much of that discrepancy can be put down to corruption, which is serious and endemic at the local government level. The UK’s projects to build local government capacity, which I described earlier, aim to improve that. We welcome the fact that, at the urging of the new governor, Papua’s provincial budget is now being scrutinised by the national anti-corruption commission.

I heard noble Lords’ graphic descriptions. Papua is in many ways the last blot on Indonesia’s global reputation. As the noble Lord, Lord Avebury, said, the situation in Aceh has improved, and perhaps that can be built on. The UK Government believe that the best way forward for Papua and its people is through peaceful dialogue between representatives of the Papuan people and the Indonesian Government and the implementation of the special autonomy law of 2001. We will do all we can to support that process, and we will continue to raise all of these issues with the Indonesian Government. I do not know whether the Prime Minister raised them on his recent visit, but I shall find out and write to the noble Baroness.

My Lords, in her response, the Minister stated that 70 per cent of the people of Papua took part in a recent election and that confirmed their acceptance of the situation. However, 70 per cent of the people of Scotland vote in elections, and a large proportion of them do not accept the constitutional position of Scotland within the United Kingdom. Participation in an election does not imply acceptance of the constitutional position.

Will the Minister confirm yet again the percentage of non-Papuans who are in Papua? It would not be surprising if a very large percentage of the majority which supports the present situation were migrants into the territory.

My Lords, I heard what the noble Lord said about participation in elections and will reflect on it. I said that non-Papuan migrants make up about 35 per cent of the total population of Papua.

As I said, we will do everything that we can to support the implementation of the special autonomy law and the dialogue between the representatives of the Papuan people and the Indonesian Government. In the mean time, we are working to improve the economic and political situation for ordinary Papuans through targeted development assistance, the encouragement of dialogue between the Government and their representatives, and project-funding to improve human rights and local government accountability.

House adjourned at 9.26 pm.