My Lords, I rise to pay tribute to Lord Cockfield, who died on Monday. He was born in 1916, and was educated at Dover Grammar School and the London School of Economics. In 1938 he joined the Home Civil Service, starting at the Inland Revenue. He was called to the Bar in 1942.

Before joining this House, Lord Cockfield had a long and distinguished career, holding many posts across government. He was considered to be one of the greatest authorities of his generation on taxation, as well as being a statistician of renown. He was raised to the peerage in 1978, and very quickly joined the Government Front Bench. I am told, and I am sure that many Members of longer standing will remember, that he was a notable performer at this Dispatch Box, with his own particular manner of delivering answers.

In government, Lord Cockfield first served as Minister of State for the Treasury and then as the Secretary of State for Trade from 1982 to 1983. He held a further Cabinet post as Chancellor of the Duchy of Lancaster from 1983 to 1984.

He was Vice-President of the European Commission between 1985 and 1989 and, rather unexpectedly, became a champion of the European project. He is regarded as one of the principal architects of the European single market. He continued his interest in the European Union when he returned to this House. In a debate on enlargement of the European Union in December 1999, he said:

“The successful enlargement of the European Union to comprise virtually all the countries between the Atlantic and the borders of the former Soviet Union would be the greatest achievement of the 21st century”.—[Official Report, 7/12/99; col. 1213.]

I am sure that he was glad to see so much of the project completed in his lifetime. He is survived by a son and a daughter and I believe that the whole House will wish to join me in sending our condolences to them.

My Lords, I am delighted to follow the noble Baroness the Leader of the House in paying tribute to the late Lord Cockfield, a colleague whom Peers on all sides viewed with affection and respect. The noble Baroness set out the facts of an extraordinary career. It is hard to overestimate the scale of the noble Lord’s talent. He started life with no advantage. Indeed, his father was killed before he was born. He joined the Customs as a junior clerk at the age of 17, but he became a tax professional with a distinguished Civil Service career, a lawyer, an industrialist—the finance director, managing director and chairman of a FTSE 100 industrial company—and a statistician, becoming the president of the Royal Statistical Society, all before entering Parliament at the age of 62. He was that very rare thing, one who makes the transition from the world outside politics to Parliament and government, and does so with lasting success. His oratorical style—some said he spoke like a royal commission report—can more politely be described as stately, but his words were almost invariably those of a statesman.

For a decade, he was a leading figure in British and European politics. He was a Cabinet Minister in days when there were three or four Cabinet Ministers in your Lordships’ House, and government was no worse for that. Then he was Vice-President of the Commission from 1985 to 1989. His name will be linked indelibly with the single market in the EU, the blueprint of which he in effect wrote himself. Whatever our views of the twists and turns that the EU has since taken, the single market is a giant achievement. It would not have happened but for his energy and vision, for which he will be long remembered.

The noble Lord sadly lost his wife soon after leaving politics, but he attended here regularly until very recently and in his 90th year. We always welcomed him, and we benefited from his deep wisdom. Our sincerest sympathies go to his family. They should feel honoured by his memory.

My Lords, we on these Benches associate ourselves with the memory of a wonderfully anti-political politician. He was one of the most understated people, whom one nevertheless heard talk with an underlying passion about political issues. As I got to know him in his later years, I found that you had to listen very hard to catch the underlying humour of some of the things that he said. He loved to pretend that he was dry and technical, even when he was not.

He was chairman of the Price Commission under the Conservative Government of 1970 to 1974. My noble friend Lady Williams has reminded me that she re-appointed him when the Labour Government came in because, although he was clearly a Conservative, he was recognised to have an entirely fair-minded and balanced approach to competition.

The most remarkable memory of him was his achievement in introducing the single European market. It was perfect for him because the 1992 programme was a collection of extremely dry and technical issues, but he managed, with the help of President Delors and others, to package them into a politically saleable programme.

He had a remarkable rapport with Jacques Delors as President of the Commission—remarkable because they were such very different characters, who nevertheless got on extraordinarily well. Madame Delors and Monica Cockfield also got on remarkably well in that peculiar world of Brussels. There were accusations in the British press that he had gone native when he went over there. He had not, but he did see that there was a problem to be dealt with and that it was his job to deal with it.

He was much more adventurous than many people knew. He once told us that he and his wife had gone around the world in 1968 on a cargo boat and, when they were in the South China Sea during the Tet offensive, their cargo boat, like others in the area, was asked to call in and stand off the Mekong Delta just in case there were large numbers of Americans to be evacuated from the mainland. So their journey was rather delayed.

He had a passionate commitment in his later years to informing the younger generation about the real benefits of European co-operation, and the Lady Monica Cockfield Trust provided, in a particularly close relationship with the University of Sussex and the Sussex European Institute, scholarships for young British students to learn more about Europe. I enjoyed many conversations with him in this House and I, like many others, will miss him.

My Lords, I join others in expressing our regret at the death of Lord Cockfield. He was a major figure in public life, in the government of our country, and in the European Union for very many years during a long period of public service.

I knew Lord Cockfield well over many years, and had experience of his relentless progress towards his objectives, occasionally falling under the tank tracks as he moved across the lawn. It is quite remarkable how he combined in one life different careers and different types of expertise and knowledge, some of which have been referred to. He was a very able economist and statistician, with degrees from the London School of Economics, and he was president of the Royal Statistical Society. He was a civil servant in the Inland Revenue and the Commissioner of the Inland Revenue. He was finance director and managing director of Boots Company for quite a long time. He was chairman of the Price Commission. He was Minister of State at the Treasury and he was Secretary of State for Trade and President of the Board of Trade.

Throughout western Europe, it was recognised that when he was appointed a Vice-President of the European Commission, he was the single-minded driving force behind the creation of the European single market. This made a major contribution to the increased trade and greater prosperity of millions of citizens. As he came from a Thatcherite background, it might have been thought that he would not fit easily into the European institutions, but he became an unexpected hero with his persistent determination to remove barriers to trade and to extend the freedom of trade within the Union. That great single market of almost 500 million people is his memorial, but I would like to remember today also what at other times he contributed to national life and to the work of this House. There are few politicians who have had a greater direct impact on the lives of so many, and he will be greatly missed here.

My Lords, we have heard of a very distinguished career—indeed, of a man of five careers; the fifth career being in Europe—of a man of formidable intellectual ability, of a man of great personal energy and hard work and of a man with professional focus who never craved personal popularity. We on these Benches certainly want to associate ourselves with all that has been said in tribute to him today throughout this House.

As Bishop of Southwell and Nottingham, I shall pay tribute particularly to the role that he had in one of our great industries in the east Midlands: the Boots Company. He was first its finance director, then its managing director and then its chairman. He not only headed up a leading commercial company in our local and national life but was also heavily involved in the historic great works of philanthropy, benefaction and charity.

Arthur Cockfield also had a very active interest in the successful development of the University of Nottingham, which, as noble Lords will know, was founded on the philanthropy of Jesse Boot, the enterprising Nottingham chemist, who was later to become Baron Trent. Lord Cockfield served as a member of the university’s court of governors from 1967, which was a period of significant expansion. During that time, eight new halls of residence were constructed on campus, and research schools developed and flourished. The period led also to the establishment of a new medical school at the university, which has grown to be one of the world’s leading medical schools in human tissue development and research in cancer and the biosciences. When he initially became a supporter of the university, it had two campuses; now it has seven, including one in Malaysia and one in China. So he was a key man at the right time for Nottingham. He actively believed the university motto, sapienta urbs conditur: a city built on wisdom.

asked Her Majesty’s Government:

Whether in the light of their work-life balance policies they will support the British Cleaning Council’s campaign to promote a return to daytime office cleaning.

My Lords, hours of work are a matter for agreement between employers and their employees, subject to the requirements of the working time regulations.

My Lords, given that most office cleaners are low-paid women who work part-time and have family responsibilities, will the Government actively support the British Cleaning Council’s call for a return to daytime office cleaning, which will allow and enable employers to recruit, train and retain a more reliable, productive and motivated workforce who are responsive to daily office cleaning needs? It would also benefit employees in better and more social working hours, greater safety and protection, and reduced travel costs.

My Lords, my noble friend was a very diligent Member of the European Parliament, where we worked together, and is a no less diligent Member of your Lordships’ House. In supporting the work-life balance the Government have supported the employee’s choice on their working hours. We have been actively encouraging employers to think more creatively about the hours that workers should work, rather than just the usual nine to five. We have introduced a series of measures to improve workers’ conditions and to give them protection. In particular we introduced the national minimum wage, ensured that workers are not obligated to work for more than 48 hours a week and introduced an entitlement to four weeks’ paid leave and to rest breaks. We have introduced a range of other measures such as the right to take time off work to deal with family emergencies, flexible working hours and two weeks’ paid paternity leave.

My Lords, I declare an interest. I am the chairman and chief executive of an insurance broking organisation that provides insurance cover to the cleaning industry. Our organisation is also a member of the Cleaning and Support Services Association, which is broadly supportive of daytime cleaning. Some 900,000 people are employed in the cleaning industry in the United Kingdom, but only 24 per cent of the work is undertaken in the daytime. In European countries such as Sweden, about 78 per cent of commercial cleaning is undertaken during the day. Do the Government intend to introduce daytime cleaning in the various government offices?

My Lords, I thank the noble Lord for his question. The fact is that 87 per cent of employees are either “very satisfied” or “satisfied” with the hours they currently work. As for daytime cleaning, many workers, including cleaners, work during daylight hours. Many prefer to do so because they can, for example, work early in the morning and then deliver their children to school. Many employees choose to work earlier rather than later. My own department, the DTI, has 127 cleaners. The earliest cleaning shift starts between 5 am and 6 am. Some 18 cleaners work full-time, and about 70 per cent of the cleaners work part-time in the morning.

My Lords, does the Minister agree that there is an interesting if perhaps peculiar connection between this Question and efforts to ameliorate climate change? The pernicious and wasteful habit of leaving all the lights on all night in buildings in the City, in Westminster and elsewhere is—at least in my experience during my years at the DTI, where I tried to stop it—attributed to the nocturnal or—more accurately, in ecological terms—crepuscular activities of the cleaning staff.

My Lords, that is an interesting point. The Government are doing an awful lot in this field, and there is a good news story to be told. For example, as a result of the work of the Women and Work Commission, led by my noble friend Lady Prosser, we have introduced a £500,000 quality part-time work fund which will support projects to increase the number of senior and quality jobs that are available part time. Under this Government there are now twice as many women judges as there were 10 years ago.

Noble Lords: Oh!

You may laugh, my Lords, but for too long there has been a glass ceiling for women in this country. The Government are introducing measures to enable women to work the hours they want to work and to ensure they have the opportunity they require to develop their careers. That is the right path to take.

My Lords, surely one must recognise that there will often be real practical difficulties in organising daytime cleaning of busy working premises. Will my noble friend agree that employers, both direct and indirect, ought to provide a decent package for cleaners including, at the very least, the national minimum wage, a pension contribution, sick pay and holiday pay? Given that, all too often, unfortunately, that is not the case, will my noble friend say what further steps the Government intend to take to ensure that all employers meet proper legal and ethical standards?

My Lords, my noble friend makes a serious point, and these are serious issues. The Government have established two vulnerable worker pilots, one of which is in the City of London and focuses on the cleaning sector. The two-year pilot is about developing local partnership with unions, businesses and other groups to ensure that vulnerable workers have the rights that they are entitled to and that they develop their skills. Further to my noble friend Lord Harrison’s earlier point, a member of the British Cleaning Council is on that practitioner panel. These are serious matters, and I don’t quite understand the joke here.

My Lords, I will not be tempted into asking the Minister whether, in his view, women judges do their own cleaning. Does he not accept that there is consensus in your Lordships' House and elsewhere that this is an overregulated economy and that further regulation in this area would therefore be inappropriate?

My Lords, we need to protect workers. Returning to the question of whether judges clean, I hope that male judges do their share of the cleaning at home.

asked Her Majesty’s Government:

What is their assessment of the impact of current green taxes on climate change.

My Lords, the climate change levy plays a crucial role in enabling the UK to meet its Kyoto Protocol target. An independent evaluation by Cambridge Econometrics, commissioned by HM Revenue and Customs and published alongside the 2005 Budget, has examined the effect of the levy since its announcement in the 1999 Budget and its introduction in April 2001. The study concluded that the levy could deliver cumulative savings to 2005 of 16.5 million tonnes of carbon and by 2010 annual carbon savings of over 3.5 million tonnes a year, well above the 2MtC estimated at the time of its introduction.

My Lords, I think that I have to thank my noble friend for his Answer. I welcome him to Treasury matters. With his vast experience in that field, he will know that he can throw away his brief and give me the real answer, which should be: none or, at best, very little. Is he also aware that his predecessor, the noble Lord, Lord McKenzie, told me during the pre-Budget debate that there are a range of taxes which are seeking to change behaviour? Would the noble Lord care to tell us the range, or at least list a few of the taxes, to give us a better idea of how that answers my Question?

My Lords, I am sorry that I have not wholly satisfied my noble friend on this occasion. The climate change levy includes an aggregates levy and a landfill tax. We also have a number of environmental taxes, which are there to condition behaviour. We seek to shift economic activity from polluting activities to employment activities and those that do not contribute to carbon emissions. We take pride in the fact that we are making great progress on the Kyoto Protocol, but we recognise that the Stern report indicates just how much will need to be done to change our economy and economic operations to safeguard the planet.

My Lords, does the Minister agree with Mr Ian Pearson, who, I gather, rejoices in the title of Minister for climate change—an awesome responsibility, I must say—that Ryanair represents the irresponsible face of capitalism? If so, what do the Government propose to do about it?

My Lords, my honourable friend in the other place was seeking to emphasise that there would be considerable obligations on airline services in the face of the growing potential of airlines to contribute to pollution and the problems in the atmosphere. Consequently, we are expecting the airlines—British Airways is a constructive example—to recognise their responsibilities as we seek to bring air travel within the European Emissions Trading Scheme. What we regret at this stage is that the response of Ryanair did not look particularly constructive.

My Lords, does my noble friend agree that if we were to accept the premise of the Question—that, in summary, our little bit on Kyoto contributes next to nothing—and if all the countries of the world were to adopt that philosophy, we would not beat this dangerous development? Does he further agree that ever since the Rio Earth Summit in 1992, where I happened to be a member of the British delegation, it has been obvious that the countries which are polluting the most really ought to take the lead and countries such as the United States—with India, China and so on in due course—must be brought within the system? It has always been understood that that is the only way to build up the credibility of this system.

My Lords, I am grateful to my noble friends. Of course, the United Kingdom is responsible for only about 2 per cent of the pollution problem. However, the United States, a significant player in these terms whose federal Government have shown a clear reluctance to engage with this issue, is seeing some of its major cities and a considerable number of its states taking action to deal with the matter within their limited jurisdiction. If the state of California and others believe that they can make a contribution to this situation when their federal Government are not responding, we in Britain certainly have an obligation.

My Lords—

My Lords, will the Minister accept a cautious welcome on these Benches for his statement that the Government are seeking to shift activity from polluting to employment? But would he accept that our welcome would be even greater if we felt that the Government really had their heart in it and that the measures taken so far have been feeble? Would he urge on his right honourable friend the Chancellor that action could be taken early and easily by introducing a more steeply differentiated vehicle excise duty which hits harder on big, gas-guzzling cars?

My Lords, there has of course been an increase in vehicle excise duty and that is a contributing factor in our battle against pollution. But the noble Lord will recognise that we would have to increase vehicle excise duty by astronomical levels before it made a really major impact on the sale of certain cars because it is a small fraction of total costs of those large, polluting cars. I hear what the noble Lord has said, and he will recognise that we have already taken steps in that direction.

asked Her Majesty’s Government:

What is their response to the recommendations of the Law Commission regarding post-legislative scrutiny.

My Lords, the Government are grateful to the Law Commission for its work on post-legislative scrutiny. We are consulting within government before we respond formally to the Law Commission’s proposals.

My Lords, I thank the noble Baroness for her Answer. Is she aware that, according to the chairman of the Law Commission, only 60 per cent of regulatory impact assessments fully comply with the Cabinet Office requirement that new policies are properly monitored and evaluated? Are the Government satisfied with that?

My Lords, the noble Lord will know that a continuous review process takes place in government both in departments and, once legislation has gone through, in departmental review of the process of that legislation. We are committed to looking at whether the other proposals made by the Law Commission with respect to post-legislative scrutiny should be taken forward, but, as I have said, we are consulting on that and a response will be made in due course.

My Lords, given the numerous occasions on which ministerial statutory interpretation has been rejected by courts in expensive litigation, and given also the occasions on which legislation itself has been rejected as being contrary to international obligations, do the Government not think, especially taking into account the success of pre-legislative scrutiny, that it is time for Parliament to take responsibility for its own failures through detailed post-legislative scrutiny? May we be reassured that the Government will reach a conclusion on this matter soon?

My Lords, I personally am attracted to the notion of post-legislative scrutiny, as I said at the launch of the Law Commission’s report, but I can go no further than that at this stage as we are consulting on this within government and will respond formally to the Law Commission’s proposals.

My Lords, does my noble friend believe, as I do, that it is better to get legislation right by pre-legislative scrutiny rather than post-legislative scrutiny? If she has not already done so, will she look at the experiments that have taken place in the Scottish Parliament in relation to pre-legislative scrutiny and see how they might be adopted in Westminster for the benefit of our legislation as well?

My Lords, my noble friend is right to point out the importance of pre-legislative scrutiny, but I think there is also room for post-legislative scrutiny as set out in the Law Commission’s proposals. On the example of the Scottish Parliament, that is mentioned in the Law Commission report. I understand that in the Scottish Parliament committees act as both standing committees dealing with legislation and select committees conducting inquiries. In conducting post-legislative scrutiny, no distinction is made between reviewing an area of policy and reviewing the operation of a specific piece of legislation. The system is different from what we have here. If Parliament wants to look at that system, it is of course open to Parliament to do so.

My Lords, the Government will recognise that pre-legislative and post-legislative scrutiny go together. I was struck in the House of Lords annual report by the comment that pre-legislative scrutiny has been used very little in the past year. Can the Government give us some indication of how much they intend to expand pre-legislative scrutiny of this and next year’s legislative programme?

My Lords, I am conscious of the fact that in numerical terms, pre-legislative scrutiny has gone down in the past couple of years. We announced at the beginning of this Session four Bills for pre-legislative scrutiny, but I should say to the House that in many cases there is a real-world deadline which means that there is insufficient time to include a draft stage for a Bill. My right honourable friend the Leader of the House of Commons and I have to encourage our colleagues to ensure that Bills are ready on time to enable us to have more pre-legislative scrutiny.

My Lords, since there are still too many Law Commission reports gathering dust, have the Government any procedural proposals for giving Parliament an early opportunity to debate them?

My Lords, my noble and learned friend will know that this issue was raised in the context of the discussion on the Legislative and Regulatory Reform Bill. My noble friend Lady Ashton told the House that we would come forward with proposals on this after consultation. We are still committed to coming forward with proposals, and that consultation will continue.

My Lords, can the noble Baroness give us some indication of how many Acts of Parliament introduced by this Government have survived without being substantially amended?

My Lords, is that a question about the Committee and other stages of Bills? I do not understand the question. Most Bills are amended as they go through Parliament.

My Lords—

My Lords, the noble Baroness has asked me a question. Of the Bills that have been passed, how many have been amended by subsequent Acts of Parliament?

My Lords, I do not have an answer to that. I shall try to get an answer and put it in the Library of the House.

My Lords, if it is not too self-serving this early in the year, does my noble friend agree that if we get a response from the Government shortly, this House should make a very strong case for its playing a prominent role in any process of post-legislative scrutiny?

My Lords, I agree with my noble friend. Bearing in mind the role that we play in legislation at the moment, this House would have a very important role to play in post-legislative scrutiny.

My Lords, what is the Government’s verdict on the quality of post-legislative scrutiny in the European Union?

My Lords, I am not aware of the detail of post-legislative scrutiny in the European Union. I shall be happy to write to the noble Lord about that.

asked Her Majesty’s Government:

Why the Minister for Europe, Mr Geoff Hoon, formerly Secretary of State for Defence, refused the request of the coroner to give evidence to the inquest into the death of Sergeant Steven Roberts.

My Lords, on 14 December, the coroner presiding over the Sergeant Roberts inquest indicated his intention to invite the right honourable Geoff Hoon MP as a witness. Mr Hoon was overseas. The MoD offered a witness who could provide the evidence requested. The coroner and the family’s counsel indicated that the witness fully dealt with their questions, and the coroner confirmed that Mr Hoon’s attendance was not necessary. At no stage did Mr Hoon refuse to give evidence.

My Lords, is the Minister aware that Sergeant Roberts came originally from my constituency and that I therefore took his widow and members of his family to see Mr Hoon, who, I have to report to your Lordships’ House, promised a full investigation and full disclosure of his death? Do the Government now accept the conclusion of the coroner that his death was the result of delay and serious failures? The coroner continued:

“I have heard justification and excuse and I put these to one side as I remind myself that Sergeant Roberts lost his life because he did not have that basic piece of equipment”.

Can the Minister confirm the clear inference of the evidence that was given to the inquest: that the deliberate decision to delay the ordering of essential sets of enhanced combat body armour was not a military or, indeed, a Civil Service decision, but was taken by the Secretary of State himself? Can the Minister also confirm the evidence given by Mr David Williams on behalf of the ministry that buying sufficient numbers of ECBA sets would,

“obviously indicate the department was pressing ahead with preparations for war while negotiations were still firmly at the diplomatic stage”?

Can the Minister confirm that this decision was a misguided attempt to distance the MoD from the conservative demand for a pre-emptive strike against Iraq and President Bush’s war preparations? Can the Minister finally confirm that it is not now the habit of his department to allow civil servants to answer for the misjudgment of the Secretary of State?

My Lords, I am aware, first, that the noble Lord was the Member for the constituency from which Sergeant Roberts came and I recognise his interest in this matter. He has asked me a number of questions and, with the indulgence of the House, I shall do my best to answer directly the points he made.

I absolutely do not accept that this was a political decision. Having looked at this, I believe that the advice from the military to Geoff Hoon, the Secretary of State at the time, relating to decisions about equipment was the right advice. The decision that he took not to take action on certain elements that would give clear indication of a preparation for military action when a diplomatic process was going on was the right thing to do. We need to recognise, as a number of Members of this House who have held positions within the Ministry of Defence—either as Secretary of State or as ex-chiefs and members of the military—know, that often decisions have to be taken in very difficult circumstances and when there is significant diplomatic pressure. Those decisions have to be made taking acceptance of the risks in the real world. The military has to have the ability to do what is necessary to deal with those realities. I believe that we need to have the political will to take those decisions. We have to ask ourselves whether in future we are going to be prepared to take these kinds of decisions. On this side of the House we have that political will. The kind of questioning of decisions that has taken place in those circumstances degrades the military effectiveness of this country and is not to be pursued.

My Lords, will my noble friend confirm that lessons have been learnt from this tragedy, that enhanced combat body armour is now the standard body armour issued to all personnel on all operations and that that decision was taken by my right honourable friend Geoff Hoon when he was Secretary of State for Defence?

My Lords, my noble friend is right when he says that significant changes have been made to the policy on body armour. Decisions have been taken in the light of the lessons learnt from the tragic death of Sergeant Roberts—and, if I may say so, I am personally sorry for the death of Sergeant Roberts. His death has led to lessons being learnt. The most important lessons have concerned body armour policy and the provision of that armour. All our troops on operations in Iraq and Afghanistan are now provided with enhanced combat body armour. We have developed the new Kestrel system, which provides protection for top-cover sentries. We have developed the Osprey system, to have the flexibility to meet threats. Lessons have also been learnt regarding logistics and the tracking system. These are a direct result of the “lessons learned” exercise that took place after Operation TELIC and they have been implemented.

My Lords, I appreciate that the Minister was not there when this happened, but I find his answer most surprising. The Government’s strategy at that time was to try and convince Saddam Hussein that if he did not comply with UN resolutions, he would face military action. So the right action to take was to give convincing evidence that military action was likely to take place, including preparing our forces for action if it came to that. It is absolutely tragic that the political decision was taken to somehow conceal the build-up to military action, which was counterproductive for the Government’s own policy at that time, which they have avowed to this House and to the country. I cannot accept the answer the Minister has given.

My Lords, with deep respect for the noble Lord’s experience, this was not a political decision. The military was considering and advising on elements of the equipment list. To order substantial numbers of further body armour pieces beyond the number held in stock—approximately 13,000 at the time, if I recall correctly—would have sent a clear signal about the particular type of operation being contemplated. With the political process as it was, it was judged that that was not the right thing to do. Once the United Nations Security Council resolution had been taken, that was progressed.

My Lords, my noble friend’s point was precisely that; it was a political judgment, and the Government’s judgment was wrong. Indicating that this was going to go ahead would have put pressure on Saddam Hussein to capitulate. Surely the Minister can understand that point and should address it.

My Lords, I fully understand the point—I just disagree with it. The point is that a judgment was taken by the Secretary of State at that time in that post, based on the military advice we had at the time. Having looked at that decision in the circumstances, I believe that it was right. I also respect people saying that they believe that it was the wrong decision, but to say that it was politically motivated is just plain wrong.

My Lords, does my noble friend think it appalling that some people opposite are trying to make political capital out of the tragic death of Sergeant Roberts?

My Lords, the important point my noble friend is making is that it is absolutely right that we have a process for reviewing the lessons learnt, but—this point came up last year in this House when we were discussing the Armed Forces Bill—we have to recognise the realities that our Armed Forces are often faced with. I notice that some people are calling for amendments to a Bill coming through this House so that the Ministry of Defence on operations would become subject to questions of corporate manslaughter. These are aspects of political correctness and political judgment. We have to recognise that our ability to apply military force effectively depends on military commanders and the Ministers who ask them to do the tough, difficult and dangerous tasks and relies on an acceptance of risk in the real world and the political will to get on and do it. I believe that on this side of the House we have that political will.

My Lords, with the leave of the House, a Statement entitled “Criminal Records: Backlog” will be repeated by my noble friend Lady Scotland after the first group of amendments on the Mental Health Bill; that is, the group starting with Amendment No. 6.

My Lords, I beg to move that the House do now again 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. 6:

With this amendment we have reached a watershed issue. The challenge to the Government is straightforward. They have to justify why a patient with cancer, provided that he has capacity, may validly refuse treatment for that cancer, but a patient with a mental disorder who retains full capacity may not validly refuse treatment for the mental disorder, even though he may still validly refuse treatment for cancer. That is the first question that the Minister needs to address before any other.

This amendment moves us into a completely new environment for the care of the mentally ill. It is an environment that reflects today’s values, rather than the values of the past. I would characterise today’s values as those which seek to put the patient at the centre of decision-making about his or her care and which shift us consciously away from putting mental illness into a compartment that is quite separate from all other illness. That tendency is what we mean when we speak of discrimination against those who are mentally ill, and it is exactly that discrimination which, when promoted and practised, leads to the stigma to which many noble Lords referred powerfully in earlier exchanges.

I hope that all of us in this debate take as our starting point the firm conviction that compulsory powers should be used only as a last resort when people are very seriously ill. The idea that someone could be forcibly detained when he or she was not seriously ill is, I hope, anathema. If someone with a mental disorder has reached a stage where they are a danger to themselves or to others, it is axiomatic that their state of mental illness is serious. But this amendment takes us further. The noble Baroness, Lady Barker, has taken us through the amendment and the reasoning behind it. She has explained most cogently why a test of impaired decision-making makes sense. One needs to emphasise that the impaired decision-making should specifically relate to whether to accept care and treatment. Does the patient’s mental disorder make him unable to take a rational view on that matter?

The Government’s central objection to a test of that kind is that there is no proven correlation between the severity of a condition and the loss of mental capacity. It is possible to imagine—one does not have to imagine it, because it happens—someone who poses a risk to themselves, but who also retains cognitive decision-making capacity. That is precisely why the noble Baroness was right to say, as I understood it, that a straightforward capacity test would not work in this context. A test of impaired decision-making, on the other hand, does not fall foul of that objection. The difference between capacity and the ability to take a balanced and rational decision about one’s own care may be difficult to assimilate, but it is significant. You can retain cognitive capacity and, indeed, decision-making capacity, about many aspects of daily living—going out shopping, taking the car out, taking the dog for a walk or whatever—while nevertheless being unable to take a balanced and rational decision about your own care and treatment. The distinction takes us away from pure cognitive ability into the realm of the emotions—the way in which one sees the world. The concept of mental capacity does not deal easily, if at all, with the emotions. Rather, it is concerned with the ability to understand, retain and communicate information. Very many people with mental illnesses have no difficulty doing that.

The British Psychological Society stated in its evidence to the joint scrutiny committee:

“We believe that the vast majority of patients currently detained under the Mental Health Act (1983) who have serious mental illnesses would quite clearly be demonstrably and significantly impaired in their decision making because of their mental disorder. We believe that psychologists and psychiatrists already make these judgements frequently in their clinical practice”.

If there are individuals who are seriously mentally ill and who pose a risk but retain, nevertheless, decision-making capacity about their treatment—there may not be many of them—what are we to say? How should they be dealt with? My view is that if the risk they pose is to themselves, the law and the state have no business interfering in their lives; and if the risk they pose is to others, they are or should be the province of the criminal law. People who have mental illnesses know what works best for them and what treatments they absolutely cannot tolerate. Why should the law allow for their wishes to be over-ridden? Why should those people not be allowed to put up with the unpleasant symptoms of their illness if that is what they genuinely would prefer to do? What is the justification for making a distinction in law between the patient with mental illness and the patient with cancer?

Those are the questions I posed when I began: they are the questions I again pose. The Minister should be in no doubt as to what we are saying with the amendment. We are saying that the law is out of date. We are saying that we have an opportunity to do something major to tackle the perennial and worsening problem of discrimination against the mentally ill. I hope that we can seize that opportunity.

First, the noble Lord, Lord Rix, sends his apologies to the Committee. He is quite unwell and has gone for some tests. He has asked me to give his apologies for not being able to speak to the amendment about which he felt passionately.

In adding my voice to the amendment—it is probably one of the three most important amendments we have tabled—I do not wish to repeat what the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, have already said. They have been eloquent in their statements and I fully support their arguments. I wish to talk about the clinical realities of daily life as a psychiatrist and why I and my colleague professionals believe that it is time to introduce this extra criterion. I shall mention assessing capacity and decision-making because I have heard quite a lot of nonsense talked outside the Chamber about the process; it is really quite straightforward.

I also wish to mention the extraordinary impact on the culture of psychiatric practice which the current discriminatory legislation produces and, most importantly in this Chamber, why there are fears that this would lead to mentally disordered people being excluded from care and treatment. I believe that to be completely wrong. It is also extremely important in the other Chamber, whose Members receive many letters about people who it is felt might be excluded from care and treatment because of current proposals.

The small country north of the Border, to which we referred on Monday, has already adopted this measure in its new mental care and treatment Act 2003 with no adverse consequences at present on the care and treatment of mentally ill people in Scotland. I accept that there is only a year or so of experience on which to judge but so far there are no great disasters.

I do not believe that the amendment will change who is detained and who is compulsorily treated since by the time someone is sufficiently disturbed that they satisfy the criteria of detention—that is, that they have a disorder of a nature or degree which warrants detention in hospital and it is in the interests of their health and personal safety or for the protection of other people—the level of disturbance is such that in practice the majority of, if not all, patients who are assessed for a Section 2 order will have significantly impaired decision-making in relation to their care. That is why one is assessing them in the first place. The code of practice says that compulsory admission powers should only be exercised in the last resort. I think that we know that on the whole that is the case.

In Section 3 a patient’s condition must be sufficiently severe to warrant continued detention in hospital. Almost always the patient has continued impaired judgment about the short and long-term outcomes of any care plan, which will bring him fully within the Act if this amendment were to apply. That is as true of people with seriously abnormal disturbed personality disorders, as of people with psychotic illnesses and profoundly disabling neurotic disorders.

We have already heard about Professor George Szmukler’s research at the Institute of Psychiatry, about the patients at King’s and at the Maudsley, where it is clear that 85 per cent currently detained for treatment—and the assessments were done after the immediate period of admission—did not have capacity at all. That is using the much higher test. If we lower the bar and put the test further down to impaired decision-making, almost everybody would be included.

I have often received letters from Members of the other place about difficult and challenging people, whose mental disorders give rise to a degree of mayhem in the community. Clearly, there are many such individuals. I think for example of people who cause a lot of concern, such as a young woman going around the community and perhaps setting fire to things, who is cutting herself, who is very disturbed and who ends up in A&E threatening to commit suicide. Such people do not get into hospital when they should. They seem to be in and out of casualty and causing great distress to their families and the community. Nobody can understand why they have not been admitted and detained.

The young male stalker is another typical case which causes serious concern among everyone in the community. For some reason such people seem to get assessed but not admitted often enough, and yet there are concerns about when that will flip over into a serious problem for the young woman. Then there are the people in the community with other sorts of personality disorders who come through the magistrates’ courts, such as persistent recidivist offenders with seriously disturbed personalities that are the bane of housing officers, who again seem to be constantly circling around.

It has been suggested to me that these people are extruded because they do not fit the criteria of the Act and that these people would be removed from the Act by the amendment. I am absolutely clear that that is not true. If you look at these people and assess their capacity on impaired decision-making, you would find that they would fall quite well inside the Act.

The current doctrine of suspension of all rights to autonomy survives as the sole distinguishing feature in discriminating patients; the rights of patients detained in a mental hospital separates them off from all other occasions when they are being offered medical care. That encourages psychiatrists and psychiatry teams to behave in not exactly an authoritarian fashion—in fact I often wish my colleagues were a little more interventionist and authoritarian—but rather in a culture of “Take it or leave it. We have the upper hand. We don’t need to consult or take patients’ capacity or views very seriously”. Patients believe that they have no rights of any kind when they have recovered, and, even when they should be returning to their old selves, they believe that their rights to autonomy will never be regained.

This amendment would ensure that those rare people who have full decision-making powers could not be forced to have treatment. It would signal a change in relations between civilly detained patients and clinical services, which would be of immeasurable benefit in giving patients confidence in the system. Once again, I refer to the over-representation in our mental health system of black and minority-ethnic communities, especially young black men. The new clause would give them some small confidence that they would be treated on the same lines and receive the same sort of benefits as people going into hospital with any other illness.

I turn to the assessment of mental capacity and decision-making and congratulate the noble Baroness, Lady Barker, who gave a marvellous example of how it works. It is a regular function of health professionals in relation to consent to treatment for all illnesses, physical and mental. Capacity is often thought of as a matter of intellectual reasoning or cognitive powers in relation to a specific decision. Of course that is an important aspect, but sufficient cognitive capacity—if you like, megabytes of brain computing power—is a prerequisite for decision-making but by no means the only or, indeed, most important aspect of it.

I want noble Lords to consider for a moment the big decisions that they have made in their lives and to ask themselves whether their decision to marry, to have children, to enter a particular career or profession—indeed, how they framed their will—was made on the basis of intellectual judgment or whether emotions, personality and the timing of the decision in relation to other events in their life had a major impact. I used to do a lot of testamentary capacity work, the difficulties of which, while often about assessing cognitive capacity for decision-making on intellectual grounds, was also extraordinarily often about whether undue influence and disturbed affect may have influenced the decision. The test of impaired decision-making has a lower threshold, is a more flexible test and is very familiar to professionals as a concept. It is what most psychiatrists do every day and what most doctors do every week in treating mental disorder.

I have heard it said that capacity can fluctuate. There is only one condition in which it fluctuates dramatically: acute toxic confusional states or delirium, where one can be mentally normal at one point in the day and profoundly comatose at another. There is not a great deal of fluctuation, there is gradual improvement in people with mental disorders who are in receipt of treatment. Rather as you do not accept one good sugar level as evidence of control of diabetes in someone with the condition, you do not accept one piece of evidence of full capacity as evidence of ongoing capacity and proper decision-making capacity.

George Szmukler’s research demonstrated that two doctors had very high rates of agreement on who had capacity and who did not. In other words, those decisions are not difficult to make. After all, that is what we are trained to do; psychiatric teams do not have that difficulty. Genevra Richardson concluded in her report that non-discrimination on grounds of mental health was central to provision of care and treatment for those with mental disorder. She stressed her committee's desire to encourage the treatment of mental health according to principles similar to those that govern the treatment of physical ill health.

That is not to say that mental disorder is not different from physical disorder—of course it is in many respects—but the same principles of autonomy apply. Respect for patient autonomy is total in every other field of medicine. The Mental Capacity Act enshrines that and is a fine example. We have already heard about the dying cancer patient. We must let patients gamble with their own health and safety. Cardiac patients continue to smoke and liver patients continue to drink—against advice, perhaps, but there is no law against it—but we do not allow people with uncontrolled epilepsy to drive because the safety of other people is at stake. We are talking about people’s choices about their own health when they have full capacity. In mental health, we throw out the basic principles even when people are perfectly capable of choosing treatment for themselves and are no danger to others. This is all about patient autonomy—the freedom to decide for oneself whether to accept medical help if one retains decision-making capacity. That is fundamental to patients’ rights and is at the core of this legislation.

This is not simply an academic debate; it has important clinical consequences. A statutory framework is operated daily by health and social care professionals, and works smoothly only if it reflects the values of those who are going to use it. If it contradicts those values, its chances of working will be significantly reduced.

Secondly, the conditions for the use of compulsion lie at the heart of the Bill, so we must get them right. They have to be workable and predictable.

Thirdly, and finally, we must have a Bill that works alongside other relevant legislation, in particular the Mental Capacity Act. I know that the Government are concerned that it is premature to embrace a fundamental shift in the criteria for compulsion and that, inevitably, the doctrine of necessity will triumph, no matter what. I do not believe that that is true, for the reasons that I have outlined today, but what a signal it would send to end the stigmatising discrimination of the mentally ill.

I shall be relatively brief, as I was on Monday, but I approach this important amendment from the standpoint of a neurologist, rather than that of a psychiatrist, although it is clear, as every neurologist and psychiatrist will agree, that there is a great deal of common ground between the two specialties. I certainly do not subscribe to the view once expressed by the late Sir Francis Walshe, a distinguished neurologist, that neuro-psychiatry is that hybrid which, like the mule, has neither pride of ancestry nor hope of progeny.

Everyone who has handled patients with dementia, which can be defined as a disorder due to a physical degeneration of the brain that causes a progressive disintegration of the intellect and personality, knows that they slowly but progressively lose capacity. They may lose testamentary capacity and may ultimately totally lose the capacity either to give or to withhold permission for or consent to medical treatment. Of course there are patients with serious mental disease who lose such capacity, but many patients with serious mental disorders may be characterised by, for example, systematised delusions, where they may believe that they are being persecuted by those who are responsible for their medical care or by members of their family, or that they are being poisoned by the drugs that they are being given. Yet they may remain lucid, persuasive and, in many respects, perfectly in charge of many of their cognitive abilities. Nevertheless, no one could argue that their decisions about their medical care are not significantly impaired. That is why the amendment is such a crucial part of the Bill, and why I wholly support it.

I support the proposed new clause but do not want to reiterate too many of the arguments that have been advanced by the four previous speakers, almost all of which I agree with.

I should add the disclaimer that I no longer pretend to have any serious neurological or psychiatric knowledge. The previous speaker was, of course, a very distinguished neurologist. I approach this subject more from a decision that I took in October 1975 to review the then mental health legislation. It was a long time until we eventually got the Mental Health Act 1983. I confess that I am not particularly proud of that Act. It has some quite serious deficiencies, and the Government can claim considerable credit for correcting many of those deficiencies in the Mental Capacity Act.

In our debate on 8 January, the noble Lord, Lord Carlile, mentioned that the Mental Capacity Act was,

“a close cousin of that legislation”.—[Official Report, 8/1/07; col. 37.]

That is right. It is also a close cousin of this legislation as well as of the Children Act. We cannot pass the Bill without constantly reviewing the Mental Capacity Act. In some ways, it is a pity that it is not all included. Nevertheless, we now have to face the reality. We have to deal with this Bill as it is and try to make it as good as we can.

The noble Baroness was slightly too gentle on the question of the Scottish law. Historically, social legislation in England and Wales has been greatly benefited by the fact that, on a number of occasions, the Scottish legislation has been in advance of us and we have learnt from it. I never forget taking the Children’s Act through Parliament in 1975 and finding how much we were influenced by the fact that Scottish legislation had already been there. I know that the argument may be used that we do not yet have enough experience there, but we do have experience. Scotland would not have legislated for this without very careful consultation with all aspects of the mental health services in Scotland, which are, on balance, better than those in England and Wales. We have to recognise that. That Scotland already has this provision is an almost overwhelming argument for accepting it. It would be absurd to pass this Bill, with the Mental Capacity Act in existence, and not grapple with this problem.

The noble Earl, Lord Howe, succinctly drew the distinction between why it would probably not be right in this circumstance to invoke the exact terms of the Mental Capacity Act and why we should set a slightly lesser test. One has therefore to look at that in impaired decision-making. I am very much influenced by the noble Baroness, Lady Murphy, with her practical experience. She was right that it will not make a dramatic difference—it will obviously influence a few cases—but it will make a dramatic difference to how this legislation is seen. I listened to most of the debate on Monday. I had some sympathy with the Minister on principles. It is not an easy issue, because one is grafting principles on to an amendment and on to the 1983 Act, although I hope that he comes forward with some modification and some principles that are perhaps not so detailed. I understood his later arguments—in particular those which I missed but which I have read—as to why the Government were reluctant to do this, but I hope that we will not go through this legislation being told that we have to resist all amendments. This is not wonderful legislation. The Minister has a deserved reputation in this House for being an expert in mental health and as somebody who listens. I shall not belabour the point, because it usually means that one is trying to use this as an argument for one’s own. I would contemplate voting against the whole Bill if no changes are made to it. I was 26 years an MP. I know that what has driven this legislation is a great deal of dissatisfaction among individual MPs and a feeling of despair that the system simply cannot cope with some of these cases. Unfortunately, we are giving MPs the impression that this legislation will deal with this problem. It may or may not do so; it will be very much on the margin whether it does so. It will not distress me tremendously to see this Bill lost again. The Government should recognise that they have already lost Bills in this area and they could well lose this Bill. They will have to show a good deal of feeling and understanding for expert opinion. The Royal College of Psychiatrists deserves a serious hearing on this Bill. Where it has doubts and where it wants amendments, it should be listened to with great care.

This is a crucial new clause to be added to the Mental Health Bill. If the Government were to reject it, I certainly would look much harder at the balance of the Bill as a whole. This Government of all Governments should have no reason to reject the clause. They are the sponsors and creators of the Mental Capacity Act. It is a perfectly logical extension of that Act that this clause should be in the Bill. I therefore urge the Minister to accept it and hope that he will do so. He may of course want to make drafting amendments, and I am sure that whoever has proposed the Bill would not mind that in any way. However, I look on this as a crucial issue.

I say in response to all those headline stories which preceded this Bill and the public relations coup of having inquiries announced in the Sunday newspapers that we are in grave danger of kidding ourselves that the passage of this Bill will deal with this terrible problem in a community of a minority of people who cannot be coped with.

There is out there—in the medical profession, particularly psychiatry—a real feeling that this is a Home Office-driven Bill, which is intended to give the impression that it will solve a problem, when we all know in our heart of hearts that the problem is resources, the problem is the amount of time we can spend on these things and the problem is the problem. There may not always be solutions to this. We have to accept that in a community there will always be people who do not fit, who are very difficult to handle, and who, particularly as they grow up, become a tremendous burden on their parents.

Members of Parliament get immensely frustrated—I have been one—but sometimes, however, you have to tell people that there is not always a solution to things. The danger of this legislation is that it is pretending to do things. There is too much pretence around in politics at the moment. I hope that this new clause is accepted.

We on these Benches are not just mere academic observers of legislation such as this. We care for parish clergy, who are on the front-line, working collaboratively with those in the healthcare professions, in giving co-operative care and treatment to those who are mentally disturbed and mentally ill. I welcome the concept of “impaired decision-making” as a more flexible criterion than “incapacity”. I note that it has widespread support in psychiatric circles as a useful addition to the conditions for compulsion. My anxiety is that its operation could prevent timely assessment or treatment of people, whose condition posed dangers, because they were judged not to have reached the threshold of significant impairment. The answer to this appears to be that significant impairment is assessed partly in terms of the seriousness of the consequences of the impairment. I wonder if that gives a sufficiently clear and objective criterion. With that reservation, however—it is more of a question than an assertion—I support this amendment.

One of the many aspects of my good fortune in being married to my wife is that she is also a doctor. We can talk about medical things and share rather different practices because she is a consultant pathologist. At this time, she is likely to be looking down a microscope, deciding whether a particular biopsy is cancer. Why? Because when the surgeon operates, despite the fact that he has seen the patient and done an assessment and so on, he will not be able to be completely sure what he is dealing with. It might or might not be cancer or it might be a different disorder. His treatment will be dependent on the diagnosis. When she looks at it, she may well say, “This is a bit of a puzzler, I will talk to one of my colleagues, or send it off to an expert somewhere else”. Why? Because it is not always easy to know exactly what you are dealing with.

All of us expect at some point in our lives expect to call on the services of people such as my wife, her surgical colleagues and others. We know we will suffer from disorders of various kinds and that we will need that help. When a diagnosis of that kind is made, a good surgeon will say, “Look, there are a number of possibilities for the treatment. Some of them have a fair possibility of success, some are pretty slim, and there are a lot of side effects. You need to consider whether you want to go through all of this for the potential benefit”. One of my friends has recently gone through this and decided against chemotherapy. As a doctor, she weighed up the prospects, the costs and the side effects, and decided, “No”.

When I go home to Belfast, I will see a patient who has been detained in hospital on my advice for some time. This is because she has been trying to kill herself. I believe that the balance of her mind is so disturbed that she cannot really think clearly about that issue. She can think clearly about lots of other issues, but not about that one. I am quite clear in my mind that that is the appropriate thing to do, even though it means that I am setting aside—but not riding roughshod over—her right and freedom to be out enjoying Christmas with her family and so on. This is because, frankly, I suspect that she would never have come back from Christmas.

That is an easier case but there are lots of diagnostic decisions that are very difficult. This is not about a small number of people who are very distant. One in five to one in seven of us will consult psychiatrists during our lives—that is at least one in every one of these Benches. That excludes all those who will not get to see the psychiatrist because of the waiting lists or whatever.

This has been a good debate. I detected signs of consensus among other noble Lords, but I am afraid that I am not going to be part of that. However, I respond to the noble Baroness, Lady Barker, and the noble Lord, Lord Owen, by saying that the Government are ever anxious to discuss and to see what ways there are to reach agreement on some of these important issues. But we think that this amendment is one of the core amendments that will undermine the broad intent of the Bill.

It was a delight to hear the noble Lord, Lord Owen, speak. He said that the core purpose of what we seek to discuss is how to improve services and that legislation was not going to do that. I very much agree that services have been enhanced in recent years, and I think that I have acknowledged that more needs to be done. But this legislation provides a framework that builds on the 1983 Act and will enable better provision of services as the years develop.

The primary purpose of the legislation is to protect people from the harm that may be caused by mental disorder. That means both those who have such a mental disorder and any others who may be at risk. The purpose is not to provide a way of intervening where people cannot make their own decisions. That is what the Mental Capacity Act 2005 is for. A number of noble Lords have already referred to that legislation. It therefore follows that it is the needs of patients and the risk that their disorder poses to themselves and to others, not their decision-making ability, that must determine whether compulsion should be used.

Some people whose mental disorder creates a great risk to themselves or others may nevertheless retain the ability to make unimpaired decisions about treatment. That can be decided only on a case-by-case basis. In the Government’s view, a condition concerning impaired decision-making could result in some patients going untreated and thereby harming themselves or others. Or it could lead to clinicians feeling tempted to assess people inappropriately as having impaired decision-making in order to enable them to be treated. The first consequence would be contrary to the purpose of the Act as we see it. The second would place clinicians in an invidious position and would do nothing to encourage confidence in the Act among patients, the rest of the public or clinicians themselves. I should add that some people’s decision-making ability is unimpaired only because they are currently stabilised as a result of medication or other treatment, treatment which they might never have received but for the Act.

We do not think it right for the Act to force clinicians to discharge such patients and wait for some of them inevitably to decide to discontinue treatment and decline to the point at which they are suffering sufficiently to be made subject to the Act again. I know that a number of noble Lords have referred to the concerns that Members of Parliament expressed, and it is right to acknowledge that those concerns are genuine. I listened with interest to the noble Baroness, Lady Barker, when she said that the issue of compulsion in itself has a negative impact on those who are subject to such compulsion, and I understand the point very well. However, the Act allows intervention precisely where people refuse the treatment they need. It is not obvious why such people, certainly not all such people, would be more likely to consent to treatment they do not want just because they are less likely to be subject to compulsion.

I also listened with great interest to the comments about the research published by Professor George Szmukler, dean of the Institute of Psychiatry at King’s College, London. The noble Baroness, Lady Murphy, was right to point out that the research was into capacity rather than the terms of the amendment before us. The question is whether more or fewer people would be detained under a capacity or impaired decision-making test and whether there will then be a gap. Obviously none of us can forecast exactly what the effect will be, but we think that the intention behind the amendment is that some people who would be covered now may be excluded; and that is probably the most likely outcome. It may well be that it concerns only a small number of people, but I do not believe that the proponents of the amendment are in a position to reassure us that their approach would not lead to an unacceptable gap.

I agree with the noble Earl, Lord Howe, that detention should be a last resort, but that is the whole purpose of the 1983 legislation and this Bill. It remains a fundamental tenet of our philosophy. But I would ask him and other noble Lords how it promotes a person’s autonomy if, because they cannot be treated, they seriously harm or even kill themselves or commit a crime they would never otherwise have carried out? An Act based on need and risk is not about intervening to deny people autonomy or to strip them of their rights, rather it is to intervene to help them to recover from serious mental disorder or learn to cope with it better so that they can enjoy that autonomy and be able to exercise those rights.

The noble Lord, Lord Owen, and other noble Lords pointed out that the Scottish Parliament has taken a different view. It is perfectly entitled to do so. I agree that part of the blessing of devolution is that we can see how different approaches operate in practice, and in time approaches in practice can be modified as a result. But that does not mean that Scotland will always be right, and clearly the Government in Westminster must reserve the right to make their own judgments. It is interesting to read Professor Richardson’s original review of the Mental Health Act. She made it clear that the review committee was aware of powerfully held views on both sides which the report stated are “effectively irreconcilable”. The report states:

“We believe they reflect a difference in fundamental philosophy which can only be resolved by according preference to one approach over the other. We have set out the alternative views as best we can and invite politicians to make the moral choice between them”.

I would guess that that is what we are going to do this afternoon. I am not going to debate with the noble Baroness the proportion of psychiatrists who feel one way or the other. However, to say that only a small handful of psychiatrists support the Government’s proposals may be something of an underestimate. But what I do think the Richardson report shows is that there is a fundamental difference and that those views are powerfully held on both sides.

Perhaps I may invite the Minister to consider this example. Why should a person with mental health problems who knows what he is doing be detained because of a potential risk of harm to others more readily than, say, someone who is intoxicated with alcohol? Someone sitting at home intoxicated with alcohol is not detained in case they go out and drive recklessly or beat their wife, even if on their past record they may have done both those things. Why are the Government wedded to the idea that people with mental illness should be treated differently?

Noble Lords could put forward any number of hypothetical cases, but within the context of mental health legislation we are concerned that a number of people would fall through the net if the amendment were passed by the House. That is why we do not accept the amendment put forward by the noble Earl. Surely he would accept in the public interest that there must be in mental health legislation the safeguard that I have proposed.

In that case, I wonder whether we could get back to the point ably made by the noble Lord, Lord Owen, about mental capacity. The Government seem to be leading themselves up a path where they will find that the law in one area is inconsistent with the law in another. A patient with schizophrenia who is not objecting to his or her treatment may be detained under the Bournewood provisions only if they lack capacity, but detained under the Mental Health Act irrespective of capacity. In other words, the test that is deemed important to deprive a person of his liberty under one law is irrelevant in deciding whether to do so under another law.

In the context of this amendment, we are talking about a situation where if the test the noble Earl wishes to see placed on the statute book has to be undertaken—we are not talking about capacity here, but about a lower test—there can be instances where some people would not be allowed to be treated, and there could be serious risk of harm to them and, potentially, to members of the public.

This has been a splendid debate. I hope that at the very least I have explained the Government’s thinking. I hope the noble Earl, on reflection and on hearing the Government’s thinking, will consider his position.

I have a question for the Minister, following what has been said about the comparison between the Scottish Act, which I have in front of me, and the Bill. The Explanatory Note to Chapter 6 of the Bill, which is about cross-Border transfers, states:

“Transfers are only undertaken when they are in the patient’s interests”.

It then explains what a transfer might be: someone would be moved from over the Border because he would be nearer his family when he was detained.

It may well be, as I see it, that a Scottish patient will have been admitted because his ability to make decisions about the provision of medical treatment is significantly impaired. That is one of the conditions that the doctors must fulfil before that person is admitted. The person who is admitted for that reason is then transferred south of the Border where—because, as the noble Lord says, such a provision would undermine the entire Bill, although it does not undermine the Scottish Act—he would have been admitted for an invalid reason. Will he then be allowed out in England?

After listening to this debate, it is clear to me that there is a major difference between the two sides of the Border. If the Minister cannot answer that question now, will he look into it? It seems that this will happen. I may be wrong, but I have been listening carefully, and the more I hear, the more the two pieces of legislation sound different—as will be the justice which people receive. That Scottish patient might be released in England, whereas in Scotland it was thought that he should be detained.

Inspiration has confirmed what I suspected, but I will set this out in detail and write to the noble Baroness and copy it to the Library. If you are moving from one country to another, the laws of the new country must be applied, because that is the jurisdiction in which the person is now living. Devolution will inevitably lead to different approaches being adopted. That is one of the beauties of devolution. I thought that noble Lords opposite now agreed with devolution; perhaps I am wrong. There will inevitably be differences, and the law of the country the person is currently in must apply.

Will the Minister not continue to use the extraordinary argument that this is a glory of devolution? It is one of the disadvantages of devolution which we must be vigilant in trying to prevent. I look forward to receiving the noble Lord’s letter and reading exactly what the implications of the different ways of dealing with this very important matter on either side of the border will be for patients and the public.

I was a Whip during the passage of the relevant Scottish Bill. I believe that Scottish and Welsh devolution have brought many advances. Of course, I shall set out the detailed criteria. I have given the noble Baroness what I believe is a general and broad interpretation.

I thank all Members of the Committee who participated in this illuminating debate. I ask the noble Baroness, Lady Murphy, to convey the Committee’s best wishes to the noble Lord, Lord Rix, whose contribution was missed. I also thank the noble Lord, Lord Owen, who enabled us to put the question into a wider legislative context. That was extremely helpful, as were the descriptions of the noble Baroness, Lady Murphy, and of my noble friend Lord Alderdice of what it is like to be a practitioner implementing such legislation and decision-making on a regular basis, sometimes in emergencies.

The noble Lord, Lord Hunt, said that one of the core purposes of the Bill was to enhance services. In their response to the joint scrutiny committee, the Government told us in very forthright terms that we had misunderstood the draft legislation and that it concerned the circumstances under which people could be given compulsory treatment.

No doubt we shall read in Hansard whether I said what I thought I did, but I thought I said that we were all concerned with improving services. The Bill before the Committee will provide a very effective framework in which we will continue to make the improvements to services that we have seen in the past few years.

I am happy to accept the noble Lord’s position but he must agree with his colleague in another place, the Minister, Rosie Winterton, who has said repeatedly that the Bill is about the circumstances in which people can be brought under compulsory treatment.

I apologise to the Committee for bobbing up and down, but I must be clear. Of course, I do not disagree with my right honourable friend. I said that the Bill, when enacted, will provide a better framework for practitioners to deliver mental health services.

I accept that that is what the noble Lord believes but we are none the less dealing with the legislation in front of us. It is clear that the central issue concerns the conditions under which people can be subjected to compulsion. That is why Members on this side of the Committee looked carefully at issues of capacity and impaired decision-making and drew a distinction between them. It is why we looked at the condition of mental health patients and compared it to those who are subject to all other forms of healthcare treatment, as the noble Earl, Lord Howe, made clear. It is why we thought very carefully about practitioners in the mental health field and the parallels and distinctions between them and people in other parts of the medical profession who have to follow the doctrine of “first do no harm”, even when they may administer medication which they know to be harmful. However, the patients of all other medical practitioners have a right of refusal; these patients do not.

I remind the Committee that the provisions in the amendment relate only to people who would be detained under Part II of the 1983 Act. We are not talking about people who would be detained under Part III—that is, those who have been through the criminal justice system and are at more risk.

I return to a point that I made earlier. I believe that the impact of the provisions in the amendment will be to force practitioners to concentrate and focus on the ability of people to make decisions about care and treatment. That is something which they must do within the context of the implementation of the Mental Capacity Act from April of next year. I believe that the provisions in this amendment are of a lower standard than the capacity test and thus that we are giving practitioners a greater scope to make those much more difficult judgments that they must make about people whose decision-making ability is impaired because of mental disorder.

The Minister indicated in his response that he disagrees with us on a fundamental point, which is where we believe that our provision would make services less threatening to patients. Therefore patients would be more likely to come forward to seek treatment—and at an earlier stage in their illness, before they become dangerous. The Minister does not agree that our measure actually has the interests of public safety and patients at heart. We believe that it does. It is of fundamental importance. I therefore wish to test the opinion of the Committee.

I beg to move that the House do now resume.

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

House resumed.

My Lords, I thank the Minister for repeating the Statement made earlier today by her right honourable friend the Home Secretary. This is indeed a serious matter. It is one which potentially threatens the safety of the public. In effect, the Home Office has been sitting on details of 27,500 British citizens convicted of offences abroad, details that were brought to public attention only yesterday when the Association of Chief Police Officers gave evidence to the Home Affairs Select Committee of another place.

So of course the Home Secretary is right to put in place the inquiries that are outlined today in the Statement. However, it would have been so much better if the Home Office systems operated efficiently and effectively so that this database failure had never occurred in the first place. It is the latest in a series of database failures at the Home Office: the Criminal Records Bureau, the sex offenders register and the police fingerprint system, to mention just the most notorious in the past two or three years.

In response to questions from the Floor, the Home Secretary said earlier today that when he took office he specifically asked his officials whether there were any known dangers of systems failures. He said he was not told of any problems. That is, indeed, alarming.

This morning the Home Office Minister Joan Ryan gave interviews on both television and radio. I watched and listened carefully. She was asked whether Ministers knew of Home Office failures before yesterday. At first, she merely said that as far as she knew the current Ministers did not know of the situation until yesterday. That seemed to well and truly drop Mr Clarke in it. Then, when pressed further, she appeared to say that as far as she knew it was the Ministers who were new to the Home Office last year who did not know of the fiasco. She did not say about the others. That implied that Mr McNulty and the noble Baroness were being put in the frame. I thought that it was rather unfortunate to do that when the noble Baroness did not have the opportunity to reply at that stage.

So I give the Minister the opportunity to put the record straight immediately today. Did she have any knowledge of the matter before yesterday? Has she ever made inquiries regarding the processing of the information received from overseas governments on UK citizens convicted of crimes abroad? Has she ever made inquiries about the robustness of the information systems involved?

The opening sentence of the Statement specifically refers to crimes committed in Europe, and the Minister mentioned the Convention of Europe, the protocol. What is the position with regard to British nationals convicted of crime outside the Convention of Europe area? How are they currently tracked?

Much has been made today by Ministers, in the media and in another place, of the inadequacy of the information that is sometimes supplied by other governments to the Home Office. We are told that it is just a matter of Mr John Smith with no detail, no address, and nothing more than that. Are our methods any more efficient when we send information to overseas governments about their citizens who have been sentenced in the UK? Let us say it is a Herr Johannes Schmitt; do we give his last known address and sufficient detail to track swiftly his whereabouts?

Can the Home Office’s methods be so rigorous, given the statement in the Prison Service’s Instruction issued in August last year? It states:

“It is clear significant levels of errors are present within the LIDS”.

That is the local information database system that records prisoners’ details.

Finally, the Home Secretary’s Statement refers to the identification of 540 of the most serious offenders from the 27,500 files. Of those 540, 280 cannot be entered on the police computer and are the subject of further inquiries to the notifying country. Of that rump of 280, by the police’s definition, very serious offenders, how many were convicted of murder, how many of rape and how many of other sex offences? What timescale does the Home Office have in mind for obtaining enough information on those 280 to be able to enter them on the police computer? They must surely continue to pose a threat to public safety. I am aware that the whole House is at one in wanting to make sure that public safety comes first in our minds.

My Lords, can the Minister explain why it has taken 48 years for us to begin to approach an efficient system of recording foreign convictions in this country since the 1959 Council of Europe Convention on Mutual Legal Assistance? Does it not expose a shocking lack of co-ordination, both in Europe at large and between the authorities in this country?

Will the noble Baroness confirm that as a result of the facts disclosed in this Statement, public safety has been put at risk in two particular areas? First, is there not a real possibility that people have been employed with close access to children and to the mentally ill, who would have been excluded if proper Criminal Records Bureau checks had been possible? Secondly, does she agree that judges may well have been sentencing British nationals with very serious convictions abroad on an entirely false premise; that is, not knowing of those convictions abroad? Had they had that information, it might have made the difference between a short determinate sentence and an indeterminate sentence for public protection and IPP, which is becoming more common as a result of the policies of this Government.

Why is that described in the Statement as a backlog of unrecorded overseas crimes? Is it not the case that every one of those crimes has been recorded in the country where the conviction took place? Why have not the Government taken steps during their years in office—throughout claiming to be tough on crime and tough on the causes of crime—to find out the records of those crimes committed by British nationals in other European countries?

Will the Minister confirm that the Statement covers only part of the problem: British nationals convicted in Europe? What about the many European nationals resident in the United Kingdom who may have criminal convictions recorded against them? What are the Government doing to ensure that their convictions are available through the Criminal Records Bureau, so that they do not wrongly fall into employment to which they are not entitled or find themselves sentenced on too weak a basis in court?

Will the Minister tell us what percentage of those convictions are recorded with only a name—“just a name”, as the phrase goes in the Statement? Is it a significant proportion or a very small percentage indeed? In other words, is the phrase used to conceal the true failures that have taken place as a result of the inefficiencies described in the Statement?

Will the Minister confirm that the convictions that we are considering include convictions for homicide, including murder, serious sexual offences, other offences of serious violence and dealing in class A drugs? If, as surely must be the case, the answer to that question is yes, can she explain to the House why a simple procedure was not used whereby the most serious offences were matched to what appeared to be the relevant names so that, if consideration of those names occurred either in terms of employment or in court, at least the information went before the relevant authority and could then be litigated if necessary?

Can the Minister explain to us why so many bodies are involved? Why are the Home Office, the PNC, ACPO and the Criminal Records Bureau all involved? Surely there is an overwhelming case for a single body, the Criminal Records Bureau, to deal with the co-ordination of European conviction information from beginning to end. Can she confirm that the Criminal Records Bureau will be given the extra resources needed so that those 27,500 convictions can be incorporated in its database? Will she confirm that the review of three months or six weeks—or however long it takes—will not simply be used as a fig leaf to allow that deficiency to continue for several more years to come?

My Lords, I will seek to deal with each of those issues in order, if I may. First, on the knowledge of the matter under inquiry, none of the Ministers knew of the precise problem identified. What was known prior to May—this is the reason why the then Home Secretary, Charles Clarke, took the step that he did—was that there was an issue about how we should better manage information that had been coming on an ad hoc, voluntary basis and so he set up a proper system to ensure that that which had gone before was changed and put into proper order. As my right honourable friend the Home Secretary said, that was appropriate and proper.

To take up the point made by the noble Lord, Lord Carlile, when the issue arose as to which body should be appointed to be the central authority, a number of entities were able to tender. ACPO submitted a tender and succeeded in getting this role. The main reason for that, as noble Lords will appreciate, is that the police national computer, on to which information is put, is very much within police control, and it was thought that this was the most appropriate opportunity and that ACPO was the most appropriate agency to deal with it. There is no suggestion that that was not the right decision to take because of the very close working relationship between the police and, indeed, the CRB.

On the numbers involved, the ACPO evidence to the Home Affairs Committee was that there was a backlog of 27,500 criminal records, and that notifications were received. ACPO has also confirmed the breakdown of the offences. We were told that, among the serious offences, there were 25 rapes, three attempted rapes, 29 paedophiles, 17 other sex offenders, five murders, nine attempted murders, 13 manslaughter convictions and 29 robberies. We are entirely reliant on the information that ACPO gives us, but we have been assured that those figures are correct.

The police are looking very carefully to identify cases in which we simply have a name. I do not at this precise moment have a case-by-case breakdown so that I can tell the noble Lord, Lord Carlile, that there are X number of cases in which simply a name was put forward and that there are Y number of cases with an address. We understand that some of these notifications were not made in English, some did not have the full address, and some did not form a part of a tight record. We therefore have a very broad spectrum of information that must be looked at, and I am assured by information that ACPO has given to us that in all those cases where it has been possible correctly to identify the individual concerned, that individual has been placed on the police national computer. As I said when I repeated the Statement, the CRB has made efforts to check whether it has received requests for information on any of those people and whether that has, or would have been, altered by it. Those inquiries are currently under way and, as I indicated in the Statement, we are hopeful that the CRB will be able to give us information on that by the end of the week.

On the other questions asked by the noble Lord, Lord Carlile, noble Lords will know that we have been pursuing with some vigour with our European partners the issue of British nationals who have committed offences in Europe. We have asked on several occasions how we can better manage data between ourselves and others. Noble Lords will be aware, for example, that only three European members—the UK, Ireland and France—have a sex offenders register, and we are exhorting others to follow our example.

On the information that we give to other EU and Council of Europe countries, we endeavour to give as much information as we can—indeed, all the details that would enable the proper identification of individuals whom we know about—to other member states. One of the points that ACPO made in evidence to the Select Committee yesterday was that we are still receiving inaccurate and inadequate information from many of our partners so that, even now that we have a new central authority, it is often difficult to identify correctly those who have committed offences in another country and who are returned. We are making strenuous efforts to correct that. My right honourable friend the Home Secretary has made it clear that he will continue to raise this issue with his counterparts in the Justice and Home Affairs Council.

We have taken these issues very seriously. I can assure the noble Lord, Lord Carlile, that the three-month review will not be a fig leaf. These issues have to be, and will be, pursued. My right honourable friend the Home Secretary has taken responsibility for so doing.

My Lords, my sympathies are with the Home Secretary, who faces another shambles in his office. When Dr Reid went to the Home Office and found it, in his own words, “not fit for purpose”, did he ask his Permanent Secretary whether the Home Office had the faintest idea of any further skeletons in the cupboard? If Mr Andy Burnham, the then junior Minister in charge of records, was not told of this problem, who knew in the Home Office and at what level were they?

My Lords, my noble and learned friend will know that it is for that precise reason that my right honourable friend the Home Secretary has asked the Permanent Secretary to undertake an inquiry to establish what the chronology was, who knew, when the matter came to light and how appropriately it was dealt with, so that we can learn lessons. I am not in a position today, this matter having arisen in the way that it has, to tell your Lordships that I have access to any such chronology. We will discover the full picture once the issue has been properly explored.

I should have said in answer to a question raised by the noble Baroness, Lady Anelay, that the CRB is taking steps to work as hard as it can with other countries. For example, we are looking at working with a number of other countries to get better clarification. The CRB is seeking to establish reciprocal arrangements with countries outside Europe such as Australia. This is important work and we will continue to pursue it with a great deal of energy.

My Lords, the Minister did not answer the questions which were put to her by my noble friend Lady Anelay, who asked whether she would explain what she knew and what questions she had asked. Will she now answer those questions? Furthermore, will she bear in mind that this is yet another sign of total incompetence from this miserable department? Twenty-five per cent of the Questions in this House which are overdue an Answer are with the Home Office. We have seen a whole series of examples of incompetence. Does the Minister not agree that it is time that we had a debate in your Lordships' House about the incompetence of the Home Office? I know that she will say that this is a matter for the Leader of the House. In view of all this, will she go to the Leader of the House and say that she thinks that it is time to have a debate on the incompetence of the Home Office?

My Lords, the short answer to that question is “no”. Although I accept that errors have been made in the Home Office, it is grossly unfair to refer to it as an incompetent and miserable department. The Home Office shoulders on behalf of this country the most enormous responsibility. In the greater part of the work that it does, through the diligence, hard work and commitment of its officials—and the Ministers who have been privileged to work in it—it would be a travesty so to describe it.

I say in response to the noble Baroness that, as far as I am aware, I have never been directly or indirectly responsible for this issue. To the best of my knowledge and belief, I was not asked at any time to take on that responsibility.

However, bearing in mind the breadth of responsibility that I hold on behalf of this department and the answers that I have to give to this House from time to time, I have to say to the noble Baroness that I cannot be sure, without looking through all the documentation—and without the department having had that opportunity—whether at any stage a piece of paper has come through my hands which may have so described this issue. Therefore, when I make that statement, I hope that the House understands that, as the Minister responsible for the whole of the Home Office portfolio in this House, it would be impossible and improper for me to assert that there has never been any piece of paper, which may have been in one of the files when I have stood at this Dispatch Box, which might have contained something which I now do not recall.

My Lords, does the Minister agree that there is some danger of a loss of perspective here? Much of the data, which we are now very concerned about, until relatively recently would not have even been available. Part of the difficulty is the fact that we all suffer, in all sorts of areas of our lives, from a massive data overload, which strains to the limit an enormous number of systems.

While it is understandable, in the political debate that has ensued upon this discovery, that people’s focus is on public safety, would the Minister also agree that it is important to have the perspective that some of the information that has not been properly processed might be about mitigating circumstances? Might it be about rehabilitative activities that have been taking place in relation to particular offenders, or about offences that in this country might be regarded as spent? Therefore, serious as this issue is, it is not only to be dealt with as some kind of new and unforeseeable crisis facing the public and putting the public in danger. Without any wish to be complacent, does she agree that this general problem of the processing of data is one in which good and bad information gets lost from time to time?

My Lords. the right reverend Prelate makes a number of important points. To re-emphasise what he says, in the recent past we have got a great deal better at collating information. Before 2002 and the creation of the Criminal Records Bureau, there was not one entity that collated all this information. This Government have made major advances in order to clarify, control and share data. I hope that many in the House would applaud this, because it has reinforced and enhanced the safety given to individuals in this country, as opposed to diminishing it.

Further, in relation to the steps we have taken on the background, I make it clear that many of the offences to which the backlog refers are not serious. For example, there is a body of road traffic offences included therein. In accepting entirely that for the 540 there are serious issues which we need to pursue, I agree with the right reverend Prelate that a degree of balance and proportion would perhaps be merited.

My Lords, can the Minister tell us a little more about the EU developments? As she says, the system that came into force in May 2006 was better. That was because it ceased to be voluntary—it was an EU decision, which is binding in law. It seems a little curious that, as my noble friend Lord Carlile said, ACPO rather than the CRB was made the designated agency. Does she accept, however, that the system could be even better, because there has been a European Commission proposal on the table for the past year? That would open the prospect of a computerised database, so that information on convictions in the EU at least could be exchanged with much greater reliability and effectiveness, as well as much greater data protection safeguards. What energy have the UK Government put into getting that agreed among EU Governments, given that British Home Secretaries have only attended one-third of JHA councils recently? Since this measure is blocked in Brussels, however, because it is subject to the veto, do the Government look wistfully at the Schengen countries and the seven core countries in the so-called Treaty of Prum, which have much more intensive co-operation and therefore much less chance of convictions slipping through the net? Will the Government make their decisions on Schengen and Prum?

My Lords, during our presidency and at other times—the noble Baroness will know this well—we have worked very hard to persuade our colleagues in Europe to take a more progressive role in the exchange of data—particularly in relation to criminal and other particularly sensitive and difficult issues. We are having some success in that regard. I also remind her that although the Secretary of State is not always able to make these meetings, we have the benefit of Ministers of State and Parliamentary Under-Secretaries, who have been very assiduous in their attendance at Justice and Home Affairs meetings. I think that our Europe colleagues feel our bite very clearly indeed when we attend. I assure her that the United Kingdom will continue to try to get these issues very much on the table. As to Schengen, I think I have answered that question for the noble Baroness on a number of occasions; I just say that I repeat what I have said on so many previous occasions.

My Lords, the Home Secretary indicated that most of these notifications arise for the period since the mid-1990s. Is that right? Bearing in mind that most organisations in government destroy paper and files after a number of years, can the Minister tell me whether any of the records have been destroyed in that way, or do we have a complete record going back to when the notifications began?

My Lords, I am not able to help the noble Lord with that matter until, of course, we have a clearer view of the number of cases. He will remember from his Administration that there used to be no record system. We introduced a record system that enables us to identify information, but when we took over government, that process was not in place. We are therefore often unable to verify exactly what the system was before 1997. Obviously, we will do our very best to ascertain precisely the genesis of this issue, and how many cases came from before.

My Lords, while I admire—I think that the whole House admires—the spirited loyalty with which the noble Baroness defended her department, I find it somewhat difficult to accept her theme. First, is it the normal requirement that a foreign policeman or foreign court, charging somebody for a serious offence, takes down the number of that person’s passport, or of some other identification document? Secondly, if so, is the problem that they do not give us that information in answer to our request, or that they do not have it at all. If so, what are we doing to cause them to take it? Thirdly, if, as I suspect, part of the problem is that they do not really bother to answer our questions, would it not be a good idea if some member of the department travelled to these countries and visited the offices where these records are kept, and asked to see them, rather than merely sending a fruitless series of unanswered telecommunications?

My Lords, we would then probably have our officials constantly on aeroplanes and very rarely at home. There is, however, a real need to get some conformity as to the nature of information that we are entitled to receive from each other. The truth is that many countries have totally different systems on how they collate information, what information they transfer, and the form in which they transfer it.

We hope that our work with our EU partners to introduce a central authority and set out clear protocols will greatly enhance our ability to get accurate information. As far as I am aware, not all countries take down passport details or other verifications. Many would say that if we had a proper ID card, many of these issues would be far simpler than they are now.

My Lords, the noble Baroness’s commitment and diligence are certainly not in doubt in this House, but can she not agree that, viewed from the outside by the ordinary person, the Home Office seems a disaster-prone area? That is even more significant to everyone because of the very sensitive and important things the department deals with. Can the noble Baroness guarantee that at the end of this investigation someone will be held accountable—a person not a system?

My Lords, I know of the noble Baroness’s fairness and that she would want only those who are responsible to be held as such. To be open and fair, we must first scrutinise properly what happened, how it happened and whether any individual could or should be held responsible for it. We must bear in mind particularly how the system operated in the past, when it was ad hoc, when all legal assistance was on a voluntary basis and there was no basis on which we could compel people to send us information in a prescribed form. As I understand it—I must emphasise that this is as I understand it—we have a broad spectrum of information, some of it not translated, some handwritten and some typed. It is very difficult at this stage to see whether this is a part of history or something for which one or more individuals were properly to blame. That is one of the things that the review and the Permanent Secretary at the Home Office will have to look at.

My Lords, further to the question of the noble Lord, Lord Crickhowell, can the noble Baroness give the House some idea of when notification was made of the 540 most serious offences and what happened to those notifications under the old system?

My Lords, I cannot assist the noble and learned Lord with when those offences were notified. When the backlog of 27,500 was transferred, ACPO did a sort of triage, looking through the documents and identifying those which tended to indicate a serious offence. As I indicated, there are less serious offences, such as road traffic offences and others of a relatively minor nature. ACPO identified that 540 cases fell into the category of those that it considered serious. It then went through them to see whether it had enough information to positively identify the individual. It recognised that many of the cases on which there was specific information had already been notified through Interpol and were already on the system. It was able to check those off and then to look at those that had not been put on the system by Interpol but which should have been on it. As we understand it, since ACPO took over in May last year, all the cases that can accurately be identified have been put on the system. It is now looking at those other cases, going back to other countries and inquiring whether it can get accurate data to correctly identify information before putting it on the PNC.

Noble Lords will know that there would be nothing worse than to have people put on the PNC with inaccurate, fallacious information. That would not inure to the advantage of the system or to the protection of people, and it could be quite dangerous. We are trying hard to prevent such a situation. I can assure the House that as soon as further information is available, as my right honourable friend the Home Secretary has indicated, we will of course seek to make it clear.

My Lords, does the Minister appreciate that the more she praises the Home Office and says what an excellent department it is, the more we will be inclined, perhaps in both Houses of Parliament, when the Home Office suggests that proposals for legislation are bad, that this view comes not from its accumulated wisdom but from its in-built arrogance? The noble Baroness will know that I have tabled quite a lot of Questions for Written Answer over the past few years on the Home Office’s performance. Some of them are extremely relevant to this question, so perhaps she will very kindly look at them. For example, it appears that the records of prisoners, unless they have been sentenced for life or specially selected, are kept for only six years. The number given to a prisoner on being sent to prison applies only on that occasion; the next time that individual is imprisoned they get a new number. The Passport Office is never told about the committal of someone to prison, and as far as I know—perhaps the noble Baroness will tell us—British diplomatic missions overseas do not routinely report to the Foreign Office and thence to the Home Office the passport numbers of British citizens who have been arrested.

My Lords, I hope that the House will not misinterpret anything I have said in relation to the Home Office as arrogance. I was responding to an unjust assertion that the Home Office is incompetent and a miserable department.

It is not fit for purpose, my Lords.

My Lords, I hear the muttering of “not fit for purpose”; I do not agree. I accept absolutely that there are areas where there have been serious flaws and inadequacies that need to be addressed with vigour. But the fact that one has a flaw does not mean that one is not worthy of respect and acknowledgement of the other aspects of one’s character—even in the case of a department—that are worthy of applause. I hesitate to say it, but those of us without sin perhaps find it easier to throw stones.

moved Amendment No. 7:

I support Amendment No. 7 and to shall speak to Amendment No. 55 tabled in my name and that of my noble friend Lady Meacher. These amendments are rightly grouped together as they have broadly the same aim. Indeed, the amendment moved by the noble Baroness, Lady Wilkins, is the Rolls-Royce of these amendments and mine is the Mini, but we are both driving steadily in the same direction.

The purpose of these amendments is to put into primary legislation a right to a comprehensive assessment of the need for support and treatment for those who have or have had a mental disorder and are not in hospital. I draw attention to the fact that the assessment would be the responsibility of the local authority and, I believe for the first time in this form in statute, of the NHS body. The responsible authorities, having regard to the results of the assessment, then have to decide whether the requirements of the person call for services of support and treatment and, if so, to make the necessary arrangements. We think that this is highly reasonable. It is after all not so different from what might happen in the case of physical illness. It is a straightforward way of approaching the system, and it can be summed up as meeting the objectives of: get in early, do not wait for compulsion and do not leave a condition untreated. That is what happens now and what we want to avoid in the future.

The Minister will not be surprised to hear me say—and not for the first time—that this proposal is in line with the Scottish mental health Act. If Scotland can produce one Prime Minister after another, I am sure it can produce good legislation as well. In addition to the evident value of assessments, in the case of mental disorder we also believe that it could remove or reduce the number of cases where people are turned away from services when they seek help. We all know that this is a tragedy which happens quite often, and the results are unforeseeable and usually bad. A survey undertaken in 2003 by Rethink—I declare my interest as a patron and long-time supporter—showed that up to one person in four was turned away by services when they or their family sought help.

There are some differences between Amendments Nos. 7 and 55. For example, the proposal by the noble Baroness, Lady Wilkins, has a much fuller statement of treatment and support in subsection (10), while Amendment No. 55 includes a specific provision requiring the health authority and the local authority to give reasons in writing if they do not intend to carry out an assessment. This is intended to avoid an unwanted silence, which as we know sometimes happens in the treatment of mental illness. Amendment No. 55 also specifically refers to the possibility of requests by the person himself or herself, the carer, the nearest relative or an approved mental health professional. It is a little more specific in that respect. However, it is fair to say that if the Government accept the amendment proposed by the noble Baroness, Lady Wilkins, all will be well. If not, and the issue comes back on Report, it is probable that there will be a single amendment and not two, as we have before us today. But the objective, of course, will be precisely the same.

I support both these amendments. As the noble Lord, Lord Williamson, has said, they aim to achieve the same purpose. In so doing, I should like to reflect for a few moments on my experience when I was a Member of another place. I recall being involved in two non-mental health areas or schemes which were extremely successful. One concerned raising money for a CT scanner to be based in a hospital in the region in which my then constituency was situated. It was what I think the press would call a rather sexy scheme. It was possible to raise the money quickly; it was a large amount of money—a seven-figure sum was put together, and the scanner was installed. Afterwards it transpired that not enough staff were available to operate the scanner at all the times when it was needed. That was a managerial problem which left one feeling a little disappointed with one’s achievement.

The other organisation I was involved with was a truly wonderful place, a children’s hospice of which I was a trustee for a time. The hospice in question, perhaps like all children’s hospices, had no statutory funding at the time, but it appealed strongly to the local community. I recall going to one meeting of the trustees on a Saturday morning and being told that we had a serious problem. The serious problem was that we had raised so much money during the previous two months that other charities in the region were complaining bitterly and we had to put a brief moratorium on the raising of funds for the hospice.

I move on to mental health provision. I was at one time involved in the starting-up of a small regional mental health charity which continues to provide services very expertly for a small number of mainly young people recovering from serious mental illness. When it started we were unable to obtain any statutory funding, and when I ceased to be a trustee at the beginning of last year it was still unable to obtain statutory funding and depended entirely on voluntary contributions, most of it raised from families with some experience of mental illness themselves. It was therefore a very different area for fundraising from collecting the money for a CT scanner or for a children’s hospice. That experience confirmed my view, when comparing it with the others I have described, that mental health provision, particularly that for children and adolescents, remains a Cinderella service.

Of course I accept, and no doubt the Minister will tell us, that the Government are doing what they can in many areas to provide better mental health services, particularly for children and young people. But as we heard the other day in what perhaps I may say with respect was an extremely eloquent speech by the noble Lord, Lord Ramsbotham, there are areas, particularly custodial settings, which remain not merely Cinderella areas, but almost completely unclothed. The possibility of those suffering from poor mental health in prisons, especially young people in custodial institutions, reaching the relative ball of a decent child and adolescent mental health ward is still remote, as I am sure the noble Lord would agree.

How do we remedy this? How do we, as a responsible society, show those who are mentally ill and their families that we are really taking this issue seriously? A simple and actually inexpensive way of doing it is to have some kind of charter of rights. What is set out in these amendments, taken together and separately, is in effect a very simple charter of rights. As has already been said so well by the noble Baroness in moving her Amendment No. 7, it represents good value for money. A comparison can be made here with the criminal justice system. In 1996, the Audit Commission produced a memorable report on crime committed by young people. It found that £1 invested in 1996 on preventing crime for young people saved approximately £7 later on, so that is money well spent.

Exactly the same applies to mental health provision. Beds in acute mental hospitals are extremely expensive. When I visited one of the leading psychiatric hospitals in the country, I was told that for the most acute beds—this is at 2006 prices—the annual cost was £140,000. Occasionally it was double that because of the intensive nature of the care needed. Were we to have this kind of charter of rights for those suffering from serious mental illness, it is self-evident that we would save money in the long term.

Are there precedents for this kind of charter? For those who are charged with crime, many of whom are guilty—statistically about half of them are found guilty if they contest their cases, and something like 95 per cent are guilty because most plead guilty in any event—we have the European Convention on Human Rights. This is a very simple document, a small pamphlet, which has been incorporated into United Kingdom law by the Human Rights Act 1998. Many of the people who commit crime have full control over what they are doing at the time they commit the crime. Although many are mentally ill, many are not. The wisest, cleverest, craftiest, most devious of criminals understand exactly what they are doing. In the area we are talking about, a very small number of people have a complete insight into what is happening to them. Some do, of course, but many do not. To introduce a charter of rights in this area is the least a civilised democracy should be offering to people who may be suffering from severe mental confusion.

Furthermore, how many people who are sectioned today really understand what their rights are at the time when they are sectioned? I suspect that the true answer is almost none. How many of their families understand what their rights are when they are sectioned? The families become very savvy after a time but, to begin with, the answer is probably virtually none. If we are going to take one opportunity in a generation to introduce amendments to mental health law in this area of serious mental illness, one of the biggest changes we can make, which would be entirely beneficial and would set a new standard for the future, would be to incorporate a short charter of rights into the legislation.

In my view, one of the most cruel injustices in this country is the failure of our National Health Service to provide the same level of assessment and treatment to people with mental disorders as we take for granted for those with physical illnesses. This injustice, of course, affects both primary and secondary services. Either of Amendments Nos. 7 or 55, by providing a right to assessment, treatment and support for people with mental health problems in England and Wales, could ensure that progress is made to put right this wrong.

If we go to our GP with physical symptoms, whether a skin rash, breathing problem or pain, which our GP is unable to treat effectively, we can expect to be referred to a specialist for a skilled assessment and appropriate treatment. If, however, we go to our doctor with depression or anxiety, which may cripple our lives—these are not minor matters; they can destroy our family relationships, our friendships and our capacity to work and, indeed, may ultimately lead to suicide—we may be turned away with little or no help. Only one in four of those who suffer with depression or chronic anxiety is receiving any kind of treatment.

This failure to treat is not only a waste of people’s lives, it is also costing a lot of money to employers and taxpayers, as has already been indicated. Many people with mental health problems are in work but their productivity is much lower than it needs to be. Employers are paying huge sums of money in sick pay for people who could work with a small amount of help. A million people are not working at all and are receiving incapacity benefits because of mental illness.

I come to Amendment No. 7 from a very different position from those we have heard about so far. I have heard the arguments about patients’ rights, and I agree with those. I have a history of supporting patients’ rights, and I will go on doing so. One of the things that make this area so incredibly difficult to legislate on, however, is that there is a balance of rights. Rights are not a one-way street. There are also the rights of the people immediately affected by the patient and the rights of the community in which they live.

I shall say a little more about that, not only because it is relevant to the nature of this clause, but also in the context of my criticism that the Government’s approach on this does not go far enough. We are not facing the difficult question of what you do when an individual, whether through a personality disorder or other problems, is frightening and difficult for the community to deal with and yet there is no willingness to treat them. That is what this is about.

I want to take the Committee back a bit. I touched on this when I made a relatively short contribution on Monday. In the period prior to the 1959 Act, our hospitals acted in a way as containment centres.

I think the noble Lord is speaking to the next amendment. The amendment we are discussing at the moment is on the issue of the provision of services, not the issue of treatment.

My apologies if that is right. I was reading Amendment No. 7 and some of the subsections of the new clause deal with treatability. Is that not right?

This amendment is about rights to support and treatment.

My noble friend is absolutely right. I apologise; I was looking at Amendment No. 7.

If the speech of the noble Lord, Lord Williamson, was a Mini, and that of the noble Baroness, Lady Wilkins, a Rolls-Royce, mine will be a tricycle. I was just beginning to agree with everything the noble Lord, Lord Soley, was saying. I am disappointed that he stopped.

I support those parts of the amendments that relate to the demand for an assessment of proper needs and the duty to respond appropriately. I am surprised that so far the name of Marjorie Wallace has not come up in our debates. The campaigning journalist and founder, chief executive and now, I think, president of Sane has pointed out over and over again the cases that come to her of people who sought help and could not get it. That has happened on innumerable occasions.

I think of the tragic case in the East London and The City Mental Health Trust two or three years ago, a case with which the noble Baroness, Lady Meacher, will be familiar. One that really came home to me was the sad case of Andrew Robinson, the vicar’s son in Devon, who committed homicide against another Robinson, an occupational therapist from a different family. I have seen the letters from his desperate parents, over a period of weeks and days before he was seen by the psychiatrist, to the director of social services, to the psychiatrist, to the psychiatric social worker, to the occupational therapist—and he was not seen. The outcome was that he was admitted into hospital in the most appalling state of psychotic illness, and he murdered while in the unit. It is worth remembering, when we are talking about detention, that a significant proportion of homicides sadly occur inside psychiatric units. Such cases bring home to you the need for these amendments, I scratched my head and thought, “Oh dear, obligatory services—the Government won’t like that”. But then I thought that we do that all the time for people with physical health problems. The example that springs most readily to mind is the obligatory two-week response for cancer waits. Now, if a GP suspects that someone has cancer, he has a hotline to the hospital and he can demand that that person is seen within two weeks. I think the Minister will accept that on the whole there has been a remarkable response by services in delivering that target. There are glitches, but on the whole it has been a success. It can be done, and it would immeasurably improve the confidence of caring families and individuals to know that they had a right to ask for help when they felt that things were going wrong. I support the amendments.

I shall intervene briefly to support these amendments, particularly Amendment No. 7, which outlines comprehensive assessment in a comprehensive way. I understand that the Government have been looking at comprehensive assessment, and that Warwick University has been working with them on it. Amendment No. 7 should not come as any surprise at all to the Government. It is holistic; it looks at a person’s need from the perspective of health and social care. It addresses the tragic situation we hear about only too often, of people wanting help and being turned away.

We have heard some compelling speeches in this debate. The noble Baroness, Lady Wilkins, and the noble Lord, Lord Williamson, are to be applauded for all that they said in support of their respective amendments. In a policy context it is always problematic to talk in terms of a completely demand-led service available as a right to whoever asks for it. That appears to be the effect of the noble Baroness’s amendment, and I suspect the Minister is likely to balk at it. In his shoes, I probably would as well. Even if I cannot support her amendment quite as worded, however, I am definitely with the noble Baroness in spirit. I am also definitely with the noble Lord, whose amendment seems to me to have the edge over that of the noble Baroness.

There are several things that both the noble Lord and the noble Baroness said that bear underlining. The first is that all too often the only reason that someone ends up being subject to powers of compulsion under the Mental Health Act is the lack of available outreach or early intervention services appropriate to their needs at an earlier stage. I was staggered to see the figure from Rethink that 50 per cent of people subject to compulsory treatment have previously asked for help and been turned away. That chimed in with the story that the noble Baroness, Lady Murphy, told us, and it is a terrible indictment of the way mental health services are configured.

If anyone supposes that it can be better or more cost-effective to treat someone as an in-patient under conditions of coercion than to provide treatment to the person informally when they are much less severely ill, I will be amazed. Time after time, though, that is what the service ends up doing to people. The Sainsbury Centre for Mental Health has put the total cost of mental illness to the economy at over £77 billion a year. A figure like that is a salutary reminder that an approach to mental health that adopted a much broader and more imaginative model for assessing cost-effectiveness could well prove highly beneficial.

Like the noble Baroness, I think straight away of the proposals put forward by the noble Lord, Lord Layard, who, as she said, has argued persuasively that a substantial investment in talking therapies for those with depression would repay itself in savings of incapacity benefit. I hope that the Government will give that idea the support it deserves and take it forward. That is only one example of the savings that could undoubtedly be made across the piece, if only we were able to deal earlier and better with mental illness and get people who are ill back into employment.

Therefore, I hope that the Minister will listen carefully to his noble friend and to the noble Lord who, as I am sure he agrees, know a thing or two about disability matters. They are absolutely right to move our attention away from issues to do with detention and compulsion and on to issues to do with better and more timely service delivery, which are the things that really matter to the vast majority of service users.

I, too, support in principle the amendments of the noble Baroness, Lady Wilkins, and the noble Lord, Lord Williamson. Like the noble Earl, Lord Howe, I am delighted that for a few minutes we have been taken away from issues of compulsion to talk about what mental health services should be like and, indeed, what entitlements patients should have. My noble friend Lord Carlile was right to say that we should be thinking of a very basic Bill of Rights, as it were, for patients who use mental health services. We should be thinking about a right to assessment, support and treatment.

The noble Baroness, Lady Murphy, was right to remind us of the work of Marjorie Wallace of Sane, and, indeed, of the work of other organisations, but particularly that of Marjorie Wallace, who has reminded us time and again of people who have told her organisation that they could not get anywhere. Neither individual patients nor their families or carers who have asked for help can get a response from the services. We need to look at what the services are doing.

I speak from experience. I am sure that the noble Baronesses, Lady Meacher and Lady Murphy, have had the same experience as I have of the mental health services. I refer to chairing a mental health service trust in central London. The reason that on the whole people get such a poor response is that bed occupancy is so high that the services are struggling to provide for people who are compulsorily detained. Trials, experiments or, indeed, the introduction of a new service such as assertive outreach, which the noble Baroness, Lady Murphy, mentioned, have shown that it is possible to get bed occupancy down in the compulsory services by going for assessment, support and treatment but not necessarily for compulsion. You can make the services much more responsive. There is a lesson for us to learn from that. That is why the insistence on assessment, particularly in the amendments of the noble Lord, Lord Williamson, and the noble Baroness, Lady Meacher, is so important.

When assertive outreach was piloted in three London trusts I was still chief executive of the King’s Fund. We piloted the measure jointly with the Sainsbury Centre for Mental Health in three areas with Department of Health funding. I believe that the Minister was party to that on the first occasion that he held his present ministerial office. The pilot was so dramatically successful that assertive outreach was put into the national service framework before the assessment and evaluation of that project were fully completed. That is unusual but I think that it tells you that there is another way of doing things. During these two days of debate we have said time and again that there are ways of thinking differently and of encouraging people to use services. We should not drive them away by the threat of compulsion but allow them to engage with services and feel that they are being offered fair assessment, support and treatment. I say to those Members of the Committee who are not aware how it works that assertive outreach is a rather imaginative process. Often it involves doing a deal with patients. Patients agree to take their medication, having had a full assessment. They engage with the treatment and are compliant. In exchange they often get the support that they have asked for, which on the whole our services are very poor at providing. Sometimes patients get access to housing. Often they say that they want access to employment. We rarely manage that but often we manage to secure daytime occupation. The evidence thus far suggests that such patients have a better quality of life. That experience, in so far as we have had it—it is now in the NSF—should indicate to us by practical example that going for assessment, support and treatment is a better way in than a system that is based on compulsion. I hope that the Minister will take that very seriously because it seems to me that we could reduce the need for compulsion if we were serious about assessment, support and treatment.

If we went down this path, we would follow the recommendations of the Joint Committee on the 2004 Bill. We would accord with the Government’s own national service framework—a framework which is at the moment somewhat in danger because the services themselves are having money stripped out of them. Mental health services are losing money to the acute sector due to deficits. That should give us real cause for concern when what we want to see is a system that encourages assessment and voluntary treatment. Other Members of the Committee have said that Rethink’s evidence that 50 per cent of people who are treated compulsorily asked for help but did not get it is a disgrace. It is indeed a disgrace but we also need to recognise that when people ask for and receive treatment voluntarily, the evidence shows that it tends to be much more successful. The Healthcare Commission has told us that some 51 per cent of mental health service users have no access to crisis care out of hours. Yet, if you want a system of assessment, support and treatment that people will engage with voluntarily, you have to have access to crisis care. That fits with the model that the national service framework has given us.

The noble Baroness, Lady Meacher, talked at length about the cost of mental illness and particularly of depression. About 40 per cent of people in receipt of incapacity benefit have a mental health problem. The economic costs are huge. I shall not go through all that but we have developed very good ways of supporting people with an alternative to care in an acute ward under compulsion. I refer to the Drayton Park alternative to in-patient care for women and the American idea, which we hope to establish in Britain, of the Times Square hotel of supported housing. Those measures have almost always been funded under charitable or short-term project funding. My noble friend Lord Carlile is right to say that mental health services are still the Cinderella services of our health service. Often but not always you can easily raise money for hospices. You can raise money for cancer and multiple sclerosis. However, it is incredibly difficult to raise money for mental health services. This is an area where we should give patients rights, which need to be backed up with money. Money should not be stripped out of the system. The Government will loathe our saying that this will cost. It will cost in the early stages although in the longer term it may save money. Many of us would argue that it would save money in the longer term. We should have a charter of rights that gives people the right to assessment, support and treatment. That will need funding but not from the compulsory side of the sector. I should like to see this Government have a Bill of Rights that takes on board the principles behind the two amendments that we are debating and which is not just lip service to patients’ rights but shows that we really mean it.

This has been a good debate. I say right at the beginning that I have no disagreement whatever with how noble Lords have expressed their comments about the need to develop services. It seems to me that the one thing on which the House is united in our debates on mental health is our belief in the importance of mental health services and our wish to strengthen them. We wish, as noble Lords have suggested, to have early intervention and to see that the tragedy of the million people with mental health problems who are on incapacity benefit is put to an end. We are all united in wishing to see that happen.

I rather wish that noble Lords might have given the Government a little credit for some of the developments in the last few years. The noble Baroness, Lady Neuberger, by pointing to crisis intervention teams and so on, has illustrated some of the improvements. The noble Earl, Lord Howe, put his finger on the real question: is this amendment the right way of fulfilling our desire to improve services, access, rights and so on? That is the point on which I disagree with noble Lords. I disagree for two reasons. First, the public’s rights on assessment and service provision are already covered in general legislation. Secondly, while I know that noble Lords here tonight would wish to prioritise mental health services above all other services—for I suspect that that is the implication of what they are saying—we also have to look at the impact of identifying simply mental health services and putting strict duties on to local providers, when similar duties will not be placed—

We were only asking for equal treatment of mental health alongside physical disability. I do not think any of us indicated that we wanted a greater priority for mental health.

I fully understand that. What I am trying to say is that such an amendment to the Bill would, by its very nature, have the effect of forcing the health service and local government to give absolute priority to those services. There would be no similar duty in other areas of the health service. That is my point.

I shall mention the legislation that we believe covers the responsibilities. Under the National Health Service and Community Care Act 1990, it is already the case that a person who appears to a local authority to be in need of care services is to receive an assessment of that need. The Secretary of State already has a duty, in the National Health Service Act 1977, to promote a comprehensive health service designed to secure improvement in the physical and mental health of people and in the prevention and diagnosis of illness. There are similar provisions in relation to Wales. Those are significant and important duties. Moreover, a process of inspection and regulation has also been established. We have the Commission for Social Care Inspection and the Healthcare Commission.

Wherever the needs of a person being assessed for community care services are such that an assessment is also required from a health professional, the local authority is required to request a contribution to their assessment from the appropriate NHS body and to take into account the health services that are to be provided as a result. There is a statutory responsibility for NHS and local authority bodies to co-operate. Under the existing arrangements, community care assessments already provide the elements that make up the definition of “treatment and support” in subsection (10) of the amendment in the name of the noble Baroness, Lady Wilkins. That is current good practice. Therefore, the legislation itself meets many of the objectives which noble Lords wish to see in generic provisions that apply to health and community care generally.

I am so sorry to interrupt the Minister, but when he says that the Government will do everything they can to continue the improvements in the mental health services, does that include the money currently being removed from mental health services to plug gaps in acute services?

A great many switches in resources are taking place. To single out mental health and to suggest that all the money is being taken from mental health services is, if I may say so, a rather gross exaggeration. The health service clearly has to live within its means. That is why we are requiring it not to be in deficit at the end of this financial year. It involves some difficult decisions that affect not just mental health services but others as well. I invite the noble Baroness to accept that we are in the middle of the largest increase in NHS funding in our lifetime and that mental health services have benefited as a result.

I am most grateful to all noble Lords who have taken part in the debate and given their support to both the Rolls-Royce and the Mini of these two amendments. I am obviously disappointed by the Minister’s response. The extension of compulsion that the Bill will enact will, as the Royal College of Psychiatrists has pointed out, further diminish the resources that go into mental health care services and make the need for a charter of rights even more important, as the noble Lord, Lord Carlile, pointed out. This is one opportunity in a generation. I would like to reflect on the debate. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move that the House do now resume and that the Committee stage begin again not before 8.20 pm.

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

House resumed.

asked Her Majesty’s Government what action they will take in response to the report by the Youth Justice Board, published on 2 November 2006, on research into anti-social behaviour orders given to young people between January 2004 and January 2005.

The noble Baroness said: My Lords, I thank so many noble Lords for deciding to speak to this Question for Short Debate. I know that a number of Members of this House have been concerned for some time about the effects of anti-social behaviour legislation on young people. In particular, we have been concerned that very disadvantaged children and young people with serious problems would be given enforcement rather than help. We have had anxieties about a disproportionate use of such measures on young black people. We have feared that families that need stability and support are instead facing eviction from their homes. We have seen evidence from reports and Parliamentary Questions that troubled and troubling children are being pushed towards the criminal justice system inappropriately.

We hear that those responsible for young people in trouble, the youth offending teams, are marginal to the activities of those in the police and local authorities who deal with anti-social behaviour, although we do not know whether this has improved as a result of the guidance that came out in March 2005. We have heard that the conditions imposed on some young people have been unrealistic and impossible to comply with. We have said before in this House that naming and shaming can put children and their families in danger. We have been concerned about aspects of the legal regime that contain injustice.

In our debates, we have repeatedly asked for more evidence and for some facts on what is actually happening. We have, therefore, all been awaiting with interest this report from the Youth Justice Board. We now have it, and sadly it confirms our worst anxieties. I remind the House that we are talking here about children. There is a wider issue about anti-social behaviour legislation in general and what happens to adults, which is not the subject of today’s debate, although a recent report from the National Audit Office suggests that the whole policy gives cause for concern. Those of us who are concerned about the impact of this policy on children care enormously about the quality of life in high crime areas. We have great sympathy with those who have to live in the same streets as disturbed and uncontrollable children. In our view, the anti-social behaviour legislation is a poor and unjust substitute for a properly resourced policy on family and child care and support for neighbourhood initiatives by local authorities.

This independent report, commissioned by the Youth Justice Board, the first such report, looked at ASBOs issued to young people aged under 18 in 10 areas of England and Wales between January 2004 and January 2005. The report finds that the children who are given these orders are among the most disadvantaged of our children. They have suffered family breakdown and previous abuse, bereavement and loss. They also tend to live in high crime neighbourhoods where there is very little for them to do. Some 22 per cent of the children in the sample were from black or other ethnic minority groups. One quarter of them were in special schooling of some sort. One mother of two children on ASBOs explained that they had reacted badly,

“to deaths in the family and witnessing a murder”.

One mother of a son on an ASBO described to the researchers their family’s experience of violent racism, which had forced them out of their home. One grandmother talked of her grandson who had been neglected and physically abused before he came to live with her.

The conditions imposed on these young people were often found to be unrealistic and not understood by the children. Some of the orders had 20 prohibitions in them. Requirements not to go to certain places and meet their friends were too difficult for many of them. They felt that they were being set up to fail. Most of the orders were for two years but some were made for five years or longer. Michael, aged 12, was, according to the report, given a five-year ASBO in criminal proceedings. Before the ASBO, he had lived with his mother and stepfather. His stepfather was a drug user who abused Michael, who could not go to school because he had no clean clothes or school uniform. He had access to the drugs used in his household. After the ASBO, his grandmother took him in. The ASBO imposed on him an area that he could not enter, an exclusion zone, so that he could not go to his local secondary school and had to find another school to take him. Those who think it is acceptable to subject a 12 year-old child from such a background to such restrictions for five years, with the threat that if he walks down the wrong street he could be imprisoned, live in a different moral universe to the one that I inhabit.

Few of the children could remember all their prohibitions. One 13 year-old had 60 prohibitions, including not to throw eggs at the public and not to swear in public places. One lived in the same street as someone he was not allowed to see. One stopped going to school because the publicity of the ASBO meant that she was picked on by children and, she said, by teachers. Not being able to go out meant that some stayed in and took up drinking or smoking cannabis instead. Some feared that the ASBO would be known to future employers or would prevent them getting a council tenancy when they were old enough.

Many of those working for the youth offending teams were frustrated at their lack of involvement in the process. They felt that they could have offered an alternative to the ASBO but were not asked, and that earlier intervention to prevent the behaviour developing would have been a better approach. Some of the prohibitions were hard to understand or to justify. For example, one child was required,

“not to attempt to steal anything that doesn’t belong to you”.

As that is already a criminal offence, the only purpose of including it and similar requirements was, so the respondents to the interviewer suggested, to allow for more severe sentencing if the condition was broken, since the young person would be sentenced both for the criminal offence and for breaking the terms of the order by committing the criminal offence. Not surprisingly, the level of non-compliance was high, as many other reports have shown. Not surprisingly, the parents and children knew that they needed help and support and were desperate to be helped and supported. An ASBO was not, they said, help and support. No doubt the Minister will tell us what action the Government propose as a response to the report from the Youth Justice Board.

I end by making some suggestions. The length of time of these orders for children should be drastically reduced. Five years is completely unacceptable. Three months, accompanied by intensive support, would make more sense. Negative conditions, such as excluding children from going to certain places and meeting certain people, should be replaced by positive requirements to take up certain activities, to get involved with the community, and to do something constructive. Naming and shaming should stop now. It is cruel and counterproductive. The possibility of prison for breaking an order should never apply to those under 18. Orders should never be imposed on children until there has been an expert medical assessment of mental and other health problems. That would be a small step in the right direction for a country that was one of the first signatories to the United Nations Convention on the Rights of the Child.

My Lords, it is with great pleasure that I rise to support the noble Baroness. I have two experiences of working closely with her. I had the privilege of serving on the board of NACRO when she was the most effective and impressive chief executive. Currently, I have the privilege of working closely with the noble Baroness on the Joint Committee on Human Rights. Her experience, insight, commitment and intellectual incisiveness are very challenging for the rest of us on that committee.

I hope my noble friend will take very seriously the report that has been produced by the Youth Justice Board and the recommendations just made by the noble Baroness, indicating possible ways forward. I emphasise that the Government face an immense challenge in this area. I also put on record that it is not always possible to overestimate the living hell in which some people in this country exist, surrounded by delinquency and social misbehaviour. For those of us who can escape to the countryside at the weekend and enjoy our homes and families in highly civilised surroundings, it is possible to reach theoretical positions. Those who have no option but to endure day in, day out, throughout the year, the social reality I have just described deserve strong sympathy and solidarity. I put on record my appreciation that the Government have understood this issue, and wish to respond to it.

Having said that, I say, without qualification, that ASBOs are not the right way to respond. The noble Baroness has put the case very clearly. I shall share one experience that I shall never forget with your Lordships. I was privileged to be honorary president of the YMCA for nine years. The YMCA worked hard in detention centres for young people. We had among our volunteers a retired chief constable, who had a reputation as quite a “toughie”. One evening, I was talking to him at a YMCA occasion and he gave me this account. He told me about how he had talked one day to a young man who was about to be released. The young man started to cry. The retired chief constable was astounded and asked him why he was crying. He said, “I am petrified by what is going to happen when I leave the centre. The centre and the work I encountered”—it happened to be done by the YMCA, but there are many other people undertaking similar work with great commitment, courage and vision—“is the first time that I have begun to feel that I matter and that people care. It is the first time that I have been able to recognise myself and come to terms with my own behaviour. It is the first time that I have begun to understand the nature of relationships with other people and how they should be handled”.

The noble Baroness has emphasised that the people we are talking about are very often the most deprived in society. I want to support the noble Baroness on two priority counts. First, because I am convinced that a civilised community, which really takes being tough on crime and the causes of crime seriously, must examine the issue of deprivation and what needs to be done to make good that deprivation, enabling those young people to succeed in life. ASBOs certainly do not assist in that process. They are an easy short-cut option. By their nature, they are likely to be highly counterproductive: a badge of honour for a youngster within the excluded group to which he belongs; or the further sense of alienation as deprivation continues.

Secondly, I want to emphasise the importance of what the noble Baroness has said because I believe that, in absolutely all dimensions of our criminal justice system, we should have rehabilitation constantly in mind as our objective. It is a denial of our civilised values and potential not to want to do that instinctively, because we want to help people to be decent and positive citizens. If we want to look at it on no other ground than the economic cost—and these days we seem always to be mesmerised by economic cost—it is madness to take any other course. The cost of losing the battle for rehabilitation and enabling people to become positive citizens increases all the time. The Government have an opportunity in the context of this report to examine the real relevance of ASBOs, what they have and have not achieved, and to look very objectively at whether they should continue or what might be introduced in their place.

My Lords, I am most grateful to the noble Baroness, Lady Stern, for introducing tonight’s debate. I hope I will be forgiven if I stray a little from the subject. A few months ago I was the chaperone for a friend who had, for some years, been dealing with ASBOs in the community. Since a change in management she is sent out alone, working until after midnight on most occasions, and travelling many miles as her centre covers a very wide area. This is quite disgraceful. Often she has no information on the background of the person she has to visit. This has put her in danger. I do not exaggerate; more than once she has been confronted by people with guns in their houses.

Putting restraints on her clients and installing equipment takes time, and results in lots of paperwork for her. The equipment is often unreliable, which proves even more frustrating. Older offenders are not as skilled as the younger ones in damaging or removing their restraints. One young lady has removed hers three times. On each occasion it has taken at least a week—sometimes a month—for the centre to deal with it and for that restraint to be replaced. What use is this? Innocents are sometimes blamed for removing their straps when it is the equipment that is faulty. Are corners being cut to save money? I rather suspect so. Why is it not compulsory throughout the country—I know that it happens in certain areas—to send visitors out only in pairs?

My Lords, I am truly grateful to the noble Baroness, Lady Stern, for raising this subject which, as she rightly says, has caused many Members of this House considerable concern for some time. During the Anti-social Behaviour Bill in 2003, we discussed at length the management of low-level disruptive behaviour, and the sort of distress and aggravation caused by those families known as neighbours from hell and generalised trouble on the streets—so often alcohol-fuelled. Everyone has the right and need to be spared such behaviour and the distress it can cause.

The Anti-Social Behaviour Unit was created to promote and develop a crackdown on such behaviour—with enormous enthusiasm and a zero-tolerance enforcement approach. However, the rigorous evidential tests more usually required by the Treasury for funding other Home Office policy initiatives were not applied. Indeed, Louise Casey, now head of the Prime Minister’s respect task force, was reported as saying to a senior police audience in 2005:

“If No. 10 says bloody ‘evidence based policy’ to me one more time, I'll deck them”.

One can only infer from that extraordinary remark that No. 10 was indicating that at least some research would be desirable, even if the head of the task force had no time for it.

That research and some evidence is now available through the welcome work of the Youth Justice Board, and it is an extremely important start to what should be informing any developing policy in this area. The vagueness of a definition for anti-social behaviour has, inter alia, caused the interpretation of, and the prosecution of, ASBOs to vary enormously around the country. Indeed, in 2005, the Home Office concluded:

“What counts as antisocial behaviour is not firmly agreed and there is a fine dividing line between antisocial acts and behaviour that might more appropriately attract a ‘criminal’ label”.

Today, instead of respect being imposed through ASBOs and the zero-tolerance approach, they are now seen, as we have heard, as a badge of honour among some of the most disaffected—the precise opposite of what was intended—and allow the naming and shaming of children who appear in court. Worst of all, the breach of ASBOs is a criminal offence and has become a growing issue. This means that non-criminal anti-social behaviour can lead, through a breach, to a criminal offence and possible imprisonment. This is important as, increasingly, children are seen as the chief cause of anti-social behaviour. Indeed, 46 per cent of ASBOs have been issued against children aged 10 to 17, although that group comprises just 13 per cent of the population.

The Youth Justice Board research shows that children with ASBOs tend to come from highly disadvantaged groups, including those who suffer family breakdown and significant mental health problems. That illustrates the complexity of the problem that we are trying to deal with. However, there is a raft of strategies, including a tiered approach to the young people in trouble and their families, before an ASBO is imposed, as well as ISOs—individual support orders—which can be attached to make the ASBO more constructive. However, very little use is made of either approach. Similarly, YOTs were often neither consulted nor had input into the length of an ASBO. It is clear from both these findings that, as yet, the steps necessary to develop the possible benefits of an ASBO and minimise all the potentially very damaging effects are simply not being taken.

Although very recent figures are not yet available, in the early days 46 per cent of 10 to 17 year-olds who breached ASBOs actually received a custodial sentence, and the presumption is that that figure will be substantially higher today. Here we have a policy which, whether by accident or design, is both criminalising children and promoting their imprisonment.

By contrast, in the whole of Scotland, where the children’s panel system keeps all children out of the criminal system until after they are 16, only four ASBOs were made against children aged 12 to 16 in 2005. Instead, through the children’s hearing process and its welfare-based approach other strategies are used—strategies that do not involve being soft on inappropriate behaviour, but instead require the child and his or her family to face up to the consequences of their actions. If only such lessons could be learnt south of the Border.

The conclusion of the Youth Justice Board’s research is of concern. It states, in relation to ASBOs, that:

“Those who see their role principally in terms of community protection are generally less critical of enforcement-type measures than those whose predominant concern is working directly with young people to change their behaviour. Effective practice may in future depend on achieving a balance between those perspectives”.

That points to a difference in the perceptions and objectives of those two groups, when in fact they are and should be identical. Young people are part of the community that needs protection and managing their behaviour in such a way that it is not repeated and the causes of it addressed properly are precisely in the interests of all concerned. Instead, the Home Office has confirmed plans to introduce “indicators” in every area to,

“increase the take up of anti-social behaviour powers”.

In other words, the more ASBOs, the better, as the proof that the problem is really being tackled.

Can the Minister reassure us that the suggestions in the report for minimising this damage will be adopted? If not, I fear that the quality of life in our communities, far from being enhanced, will be greatly reduced and those young people will be further than ever from learning the respect that we all want to see.

My Lords, I, too, thank my noble friend Lady Stern for this opportunity to consider how the right sanctions and support can be used to address the behaviour of our troubled and troubling children. I very much agree with the hope that the noble Baroness, Lady Linklater, has just expressed—that this debate will be an impetus for the Government to take forward the important improvements to applying anti-social behaviour orders—in particular, the concern identified in the Youth Justice Board report that in seven out of the 10 areas examined, youth offending teams had little or no involvement in the decisions that led to an ASBO being imposed. I hope the Minister agrees that that must be addressed.

I recognise that for some young people a sanction of this kind is needed. Professor Morgan, chair of the Youth Justice Board, has stated:

“Let me be clear—the YJB is not against Anti-Social Behaviour Orders. They can—and do—work incredibly well … but … they need to be used correctly. That means exhausting every preventative measure in the community first”.

I join the noble Lord, Lord Judd, in expressing concerns about the most deprived families in our communities and I salute the Government for the many measures that they have taken to improve the welfare of our most vulnerable families, thereby preventing this sort of behaviour by that means. I am thinking in particular of the respect action plan, to which the noble Baroness, Lady Linklater, referred, and the emphasis that that puts on supporting parenting.

When I spoke to the noble Lord, Lord Warner, the former head of the Youth Justice Board, he said that parenting support proved to be the most effective and most economic way of reducing re-offending—and it was welcomed by the parents. The Every Child Matters agenda—the Children Act 2004—obliges all agencies to work together to improve outcomes for children and families. There are targeted youth work teams. The recent Options for Excellence paper, published in October, looks at the social care workforce in particular, and how the Government’s ambition is to do for social workers what they have successfully done for teachers by raising their status and morale.

All those developments are welcome, but in the real world we know that legislation and plans do not necessarily bite. There needs to be perseverance. A lot of investment needs to be made to ensure that the social workforce is transformed. We are at a difficult time in terms of funding. There is the issue of the turnover in social workers. I spoke to a young man a month ago who had five social workers in two years. Vacancy rates for social workers can be as high as 20 per cent in urban centres. The British Association of Social Workers is greatly concerned about the retention of social workers in many areas; they are the people who could do the most to support families and, therefore, prevent anti-social behaviour. The report of the Youth Justice Board notes that little consideration is given in sentencing to providing parenting orders and other interventions. It astonishes me that so little thought is given to that.

The first question is whether the young person has committed many acts of anti-social behaviour. Secondly, are there any other means of protecting the public from this child’s behaviour before introducing the anti-social behaviour order? That thinking has not taken place. There is insufficient involvement of the YOTs in these processes. There is currently a surge in the number of children being taken into custody. We already have too high a number of children in custody. We must be careful not to criminalise more children through not taking the sensitive and necessary precautions to which my noble friend referred.

I recognise that in some cases those sanctions are effective. However, they need to be applied with great care. The figures demonstrate that that is not being done at present. The figure of 60 per cent continuing instances of anti-social behaviour among children once the orders have been introduced is not acceptable. I hope that the Minister can assure us that real action is being taken in response to the report.

My Lords, I, too, add my thanks to the noble Baroness, Lady Stern, for initiating the debate. She and the noble Lord, Lord Judd, were responsible for dragging me into NACRO. Twenty years later I find myself president of that organisation.

I confine my remarks principally to the use of anti-social behaviour orders for young people and in particular to the findings of the recent report on the subject which was prepared for the Youth Justice Board by the Policy Research Bureau and NACRO. I shall also refer to the recent report of the Runnymede Trust entitled Equal Respect—ASBOs and Race Equality and the National Audit Office report Tackling Anti-Social Behaviour which was published in December.

A number of key points arise from the report produced by the Policy Research Bureau and NACRO. They are not new. We have reflected on them in the past. First, there are strikingly wide variations between areas in the extent to which ASBOs are used. Some areas use ASBOs as a last resort when other more constructive measures, such as acceptable behaviour contracts, warning letters and interventions to support the child and family in changing their behaviour, have been tried and failed. However, other areas seem to be using them as an early resort. Overall, the report found that young people given ASBOs had two or fewer convictions.

In the areas making a relatively low use of ASBOs, there were better arrangements for discussions between the police, local authorities and youth offending teams before an ASBO was applied for. Rightly, these inter-agency discussions look at whether other more constructive interventions to improve the young person’s behaviour should be tried first. The study found that the high ASBO areas did not have similar arrangements and applied for ASBOs without prior consultation with youth offending teams, a point well made by my noble friend Lady Linklater.

Secondly, the breach rate is high. In the Policy Research Bureau/NACRO report nearly half the young people in the research sample had breached their ASBOs. The majority of them had done so on more than one occasion. The National Audit Office report found that over half of those who received ASBOs breach them and that one third do so on five or more occasions.

Many of the most troublesome young people have a range of background problems which can include inadequate parental supervision, family conflict, abuse or neglect, educational failure and substance abuse. It is impossible to resolve such a set of problems simply by imposing restrictions requiring young people not to behave in specified ways. When young people are told that they cannot go to certain areas or associate with certain friends for at least two years—we are told that in some cases it is up to five years—they stand little chance of abiding by those conditions unless they receive strong, positive support. Yet the Policy Research Bureau/NACRO study found that courts were making little use of individual support orders, which can provide such help, and that many magistrates seemed never to have heard of them.

Thirdly, the report found that the publicity of “naming and shaming” which often accompanies making an ASBO is often counter-productive. Again, we have used these arguments in the past in your Lordships’ House. On the one hand, the stigma of publicity makes it harder to rehabilitate a young offender in the local community. Moreover, in some cases young people appear to regard ASBOs as a “badge of honour” and respond to it by acting “hard” in front of their friends to live up to the tough image which they consider the ASBO gives them. Only recently in a project to which I paid a visit, I was introduced to a number of young children by their names except for one who was very proud indeed to call himself “an ASBO kid”. Surely the oxygen of publicity is the last thing we need in such orders.

Fourthly, 22 per cent of ASBOs in the research sample were imposed on young people from minority ethnic groups. Although the sample was not nationally representative in terms of geography, this is nevertheless a worryingly high proportion, particularly because the definition of “anti-social behaviour” in the legislation is very wide indeed which creates wide scope for potential discrimination. And of course we know that many other powers in the criminal justice process are used in ways which produce a racially discriminatory result.

The Runnymede Trust report found that neither the Home Office nor local authorities carried out ethnic monitoring of the use of ASBOs—a wholly unacceptable situation which should be remedied as soon as possible. There must be rigorous ethnic monitoring of ASBOs so that clear measurable targets can be set to reduce any discrimination in their use. I have shared my concern with the Minister. There is a danger that public bodies may be in breach of the Race Relations (Amendment) Act. It would be helpful if the Minister were to consult the Commission for Racial Equality on this point.

Police and local authorities in every area should be required to carry out inter-agency discussions with youth offending teams to discuss other potentially more fruitful approaches to changing a young person’s behaviour before applying for an ASBO. Indeed, I would go further than the report and propose that courts making ASBOs should be required to give their reasons for believing that all other available methods of dealing with the young person’s behaviour have been tried and failed. This would be the most effective way of ensuring that ASBOs are used sparingly and that more effective and constructive ways of reducing anti-social behaviour by young people are used wherever appropriate.

My Lords, I, too, add my thanks to the noble Baroness, Lady Stern, for giving us the chance for this short debate.

The research carried out by the Youth Justice Board found that almost half of ASBOs are routinely breached by under 18s; and that they are widely seen, as other noble Lords have said, as “badges of honour” by offending teenagers, their parents, and even some criminal justice professionals. It is a disturbing picture indeed.

Furthermore, the report says that many of those involved in tackling youth offending, including magistrates, have serious reservations about their effectiveness and question how much they change the behaviour of young offenders, or address the causes of that bad behaviour. More than 7,300 individual orders have been issued since they were introduced by the 1998 Act as a flagship part of the Prime Minister’s drive against anti-social behaviour. But this new study shows that 49 per cent of under-18s have been returned to court for failing to comply with their order, with the majority breaching that order on more than one occasion.

When we had an oral Question on the National Audit Office report on ASBOs last month, the noble Baroness, Lady Scotland, who is not here today, displayed an air of complacency about the breaching of ASBOs that I found very worrying indeed. She said that one should not see breach as a failure and that she was,

“very pleased by the success of the work that [the Government were undertaking]”—[Official Report, 12/12/06; col. 1452.]

That success has led more widely to 55 per cent of all ASBOs being breached and 20 per cent of those being given ASBOs simply not responding to them in the long term.

The report concludes that youth offending team practitioners, and some sentencers, regard the high level of non-compliance as a key indicator that ASBOs are ineffective and are concerned that by extending the young person’s criminal record, breach increased the risk of custody in the longer term. What is the Minister's response to that?

All the young people interviewed were aware of the possibility of breach, but most either did not regard the threat of custody as “real”, or did not consider it to be a deterrent. Surely that raises the concern that ASBOs do not have an impact on that young person's intentions to offend again and again. Indeed, the report also shows that even youth offending team practitioners tended to think that ASBOs were overused and had little positive impact on behaviour. They typically viewed ASBOs as potentially counterproductive, believing that they undermine positive interventions that were available, that could be in place and are not being used, and which might be better than using court action.

The research also found that there was a variation in the use of the different types of order. That could not be explained by examining the type of behaviour leading to the application, but appeared to be due to the development of local preferences for a particular route. Surely the worry there is that as a result ASBOs can overall be poorly targeted and unrealistic in what they impose on the young person. All noble Lords have referred to that point.

So, what is to be done? Of course an immediate response from the Minister tonight might be to tell us that the Government are minded to adopt all the recommendations in the report. We shall wait and hear. I believe that we need to take a longer-term view. Here I get rather worried that the noble Lord, Lord Judd, has often pre-empted many of my remarks. There seems to be some kind of a very holy alliance, I am sure, developing. Are ASBOs fit for purpose? Are they now being used inappropriately as a first resort rather than a last resort? The Home Office has added to the confusion here by its change of emphasis in the guidance it has issued on these matters. Are ASBOs being used to address minor misdemeanours in the proper way, or, instead, as some have suspected, and indeed in this report, are serious matters now being dealt with rather than other matters being addressed?

One of the key findings on page 37 is that a number of interviewees, most notably sentencers and—I hate the term “YOT”—youth offending team practitioners were concerned that anti-social behaviour legislation was now being used to address criminal behaviour. So what was intended to be directed at minor misdemeanours is now being directed at more serious criminal behaviour that should have been dealt with in other ways.

Would it not be useful for the Home Office to produce a forensic, reliable and published analysis of what works and what does not work; and why? It is vital that we should hold individuals responsible for their actions and punish them when they break the law. The noble Lord, Lord Judd, was absolutely right to remind us of the living hell that some of these young people can impose on some neighbourhoods. That has to be at the forefront of our memories in dealing with all these matters. But, as my right honourable friend David Cameron said at the annual Youth Justice Board convention this November, we can punish young offenders all we like, but if we do not tackle the causes of crime we will never have a safer society. So we should not demonise young people. We should ask ourselves what we can do to give young people hope, to improve training, to strengthen families, to tackle addiction as early as possible and to encourage good behaviour—knowledge of what is right and wrong; a conscience—before one acts.

Fighting youth crime is not just a state responsibility; it is a social responsibility for us all; and we forget that at our peril.

My Lords, I want to be very brief. I thank the noble Baroness, Lady Stern, for introducing the subject tonight and apologise to her for missing the first few moments of her address. I merely want to echo what has been said by many noble Lords tonight, particularly the noble Lord, Lord Judd, on family values and rehabilitation, which are of course the key to any governmental policy to tackle this sort of anti-social behaviour.

I want to draw your Lordships’ attention to the all-important question of the supervision of ASBOs. They are used from time to time as a badge of honour, but it is a fairly flimsy badge if one is being forced by the mechanics of the ASBO to conform to certain requirements—to be in at a certain time, not to keep certain company, not to go to a certain place and so on. That supervision, often at unusual hours of the day, late evening or night, can often only be put into place by a uniformed police presence. I have mentioned this before in your Lordships’ House when speaking to another matter. It is a matter that the Minister is not best placed to answer, and I would not expect a detailed response from him on this, but I ask him to take note of this fact: my best information at the moment is that an original undertaking to provide 24,000 community support officers for the police is now under discussion, in the likelihood that it will be reduced by one-third to 16,000 community support officers, who are being loaded with more and more requirements other than ASBOs as part of their daily business.

If that is the case—I emphasise that it is not yet a completed deal—the supervision of ASBOs will suffer significantly. Without proper supervision, all that we have said in this House about how they can be put into place fruitfully is likely to fall. I repeat myself lest I was not clear: I do not expect—I think that it would be unreal to expect—a detailed response to that, but I ask the Minister whether he can reassure your Lordships’ House that he has this issue in his mind and will talk to officials elsewhere to try to accelerate that conclusion.

My Lords, I am grateful to the noble Baroness, Lady Stern, for putting this issue before your Lordships’ House this evening because it gives the Government an opportunity to respond to some of the points raised in the very valuable report commissioned by the Youth Justice Board. It is fair to say that we have had a wide-ranging debate looking at aspects of the way in which anti-social orders work. In large measure, I think that I can probably summarise the observations made by many of your Lordships by saying that there is concern about how ASBOs operate, and there were questions about some fundamentals of the policy.

I take issue with many of those observations, but I believe that the report itself is of considerable value and that it will help us perfect the way in which anti-social behaviour issues are dealt with and will enable YOTs who, in good measure, have a big responsibility as part of the local partnership arrangements in this field. We conclude by saying that we find it gratifying that independent research of this nature supports, in general terms, the direction in which we are trying to develop further policy.

In welcoming the research and the contribution that it makes, we clearly need to reflect on it. Anti-social behaviour orders have been used for a number of years and have proved themselves to be both popular and effective. We were particularly pleased to see that the study reinforced our view that the tool was, broadly speaking, being used wisely and widely. For example, the report found that most anti-social behaviour orders were not being breached and that they were highly effective when used appropriately. We also welcome the element of constructive challenge to the policy. It is particularly pleasing that many of the study’s findings match our own—for example, on the issue of renewing juvenile ASBOs after one year, which we are committed to making a statutory requirement. We must also remember that many young people are victims of anti-social behaviour and, like adults, want anti-social behaviour problems addressed in their communities.

As the authors made clear and as the noble Baroness, Lady Stern, usefully reminded us, they sampled but 10 of the 156 YOTs in England and Wales. They chose them deliberately—purposefully—according to their anti-social behaviour order use. Where the report makes constructive and useful suggestions for policy development, we will of course—I give this reassurance—act on those recommendations, but the report should in no way be read as representing the experience of all YOTs or, for that matter, crime and disorder areas.

I move on to the detail of the recommendations. The report recommended that ASBOs on young people be reviewed regularly to ensure that prohibitions continue to be relevant. In December 2005, we announced a development in policy: ASBOs for young people would be reviewed annually. That was in response to feedback from stakeholders, as well as a specific recommendation from the Home Affairs Select Committee, which pointed out that a year was a long time in the life of a young person.

The Youth Justice Board report also recommended a tiered approach by the agencies when considering applying for an ASBO. That is already the policy advocated in the joint guidance issued by the Home Office, the Youth Justice Board and ACPO in August last year. That approach is also in keeping with the respect agenda in tackling anti-social behaviour, which is that enforcement and support are two sides of the same coin.

For young people, it is essential that support is in place either in the form of an individual support order or other intervention to tackle the root cause of the offending behaviour. To that end, the YJB, the Home Office and the DCA have been working together since February to research why take-up of ISOs has been low and to put in place necessary measures to ensure that the agencies are aware of them and are making better and more appropriate use of them. That includes publicity on websites and at conferences, including the respect academies, and training. We hope that the next round of statistics will therefore show a significant increase in take-up. However, we also know that communities sometimes need immediate protection from anti-social behaviour, and in those cases an ASBO might be the first, rather than the last, resort.

The report also drew attention to the prohibitions in ASBOs, recommending that they be kept to a minimum. Our view is that prohibitions must be appropriate and carefully thought-out so that they are easy to understand and practical for the individual and, above all, are effective in protecting the community by reducing the likelihood of breach. The joint guidance advises practitioners on how to prepare prohibitions. Ultimately, it is for the agencies applying for ASBOs to determine what prohibitions are appropriate for the young person and for the courts to approve or refuse them. That means that the facts of the case determine specific prohibitions, and therefore that safeguard is already built into the system. It is also open to the defendant to appeal against the order if the prohibitions are thought to be inappropriate.

We see no useful purpose in limiting the number of prohibitions if the facts of the case merit them. However, that is quite a difficult matter for agencies to consider with many options open to them. We absolutely agree that it is important that agencies devise conditions that are appropriate and proportionate. In recognition of the importance of preparing effective prohibitions, the Home Office and the Crown Prosecution Service, together with expert practitioners from the police and local authorities, have recently held workshops for those in the anti-social behaviour field to make sure that they are getting them right.

The report recommended that youth offending teams should be included in the decision-making process to ensure that appropriate diversionary options are fully explored, something to which the noble Earl, Lord Listowel, referred. In March last year, the YJB published guidance produced jointly which set out a clear framework for YOTs on their role in working with local partners to prevent and address anti-social behaviour. The document was designed to help other agencies working to tackle anti-social behaviour, such as social landlords, the police and local authorities to understand fully the role of the YOT and its expertise in working with young people. It emphasises the importance of early intervention with young people and of agencies working together. The YJB has also contributed to the revised guidance on ASBOs recently published by the Home Office, which underlines YOTs’ role and continues to work closely with the Home Office Anti-Social Behaviour Unit and other stakeholders, such as the Magistrates’ Association and the Courts Service to review the role of YOTs and other issues. In addition, the YJB will recommend that YOTs ensure, through regular user group meetings, that local sentencers are familiar with the range of intervention and prevention schemes being delivered in their jurisdiction.

The report also recommended that revised guidance could help ensure that ASBOs in criminal proceedings and interim ASBOs were reserved for circumstances where there were clear reasons for pursuing such an approach. The ASBO guidance issued jointly provides a comprehensive, separate section on orders on conviction, interim orders and ASBOs and young people. It builds on experience and legal developments during the past five years. However, that experience is that practitioners only ever pursue an ASBO where it is clearly needed to protect the community from anti-social behaviour. The courts provide an additional safeguard.

The report expressed concern about the potential for publicity to stigmatise young people who receive ASBOs and said that decisions regarding publicity may not currently take account of the possible counter-productive effect. Again, the new Home Office guidance on ASBOs provides comprehensive advice on the use of publicity. The allegation that publicising ASBOs stigmatises young people has, I fully recognise, been a long-standing issue with those opposed to the use of publicity. However, case law has determined that publicity is necessary for effective enforcement of the order.

The guidance makes it clear that there is no “naming and shaming” policy. ASBOs are not intended to punish or embarrass individuals but to protect communities. We advocate a case-by-case approach, and the human rights of the individual should be properly balanced against the right of local communities to be protected from anti-social behaviour.

I now turn my attention to some other issues raised by the report that did not come to light in the media but may warrant attention. First, the report shows that almost half of the sample breached the terms of their ASBO. It is important to note that the sample of young people was not representative of the ASBO population and therefore those results cannot be generalised or be indicative of overall ASBO compliance rates. Furthermore, I reject the proposition that any breach rate is an indication of failure. It shows that ASBOs have teeth and that, if people do not abide by them, there are serious consequences to be taken on board. Those on ASBOs know the consequences of breaching—it is spelt out very clearly when they are brought before the court.

That said, although we found those recommendations pertinent and helpful, we were disappointed that some sections of the media decided to focus on comments from the mother of a young anti-social behaviour perpetrator and from a magistrate leading to the misguided conclusion that ASBOs were generally regarded as a badge of honour. We refute that allegation. Anecdotal evidence suggests that most people do not view ASBOs as something to be proud of.

ASBOs are prohibitive orders put in place to provide protection for the community and place restrictions on behaviour. For every person who says that an ASBO is a badge of honour, we can show you victims who can say that a difference has been made to their life and to their community and to practitioners who say that it now means that they can finally help communities take control over the minority who have been making the lives of many a misery. Such negative comments undo much of the good work that has been done to tackle anti-social behaviour and attempt to undermine an extremely valuable tool for practitioners.

We also refute the claim made in the media that young people are being demonised or criminalised. ASBOs are a civil order, and, if a young person breaches that order, they should be given custody only as a last resort. In recent years, considerable emphasis has been placed on promoting positive activities for young people and ensuring that they have a say in the activities on offer in their local area. I welcomed the comment made by the noble Baroness, Lady Stern, on this issue, because we believe that ASBOs can be seen and used as a positive method of intervention.

It is a key tenet of government policy that we use ASBOs to drive down anti-social behaviour in many communities that have been blighted by it. We are grateful to the noble Baroness for raising this important topic. I have not been able in my summary to deal with all the issues that arose in the debate, and I will review the debate and ensure that I do so. In particular, I shall look closely at the issue raised by the noble Lord, Lord Dear, in his comments towards the end of the debate.

We recognise that the report is an important contribution to discussion. We have viewed many of its recommendations positively, and we will continue to consult widely on many of the issues that have been raised in it. We are proposing, as a last resort, some new powers to close premises that are causing significant and serious harm to local communities. That is one of the issues on which we shall consult further.

I hope that some of my comments will offer some reassurance to those who have concerns about the way in which the anti-social behaviour orders operate, and we will continue in our obligation to listen to those who deliver these key services in often very troubled communities.

In opposing the Question that this and the other clauses in the group stand part of the Bill, I have one main purpose: to retain the treatability test in the 1983 Act and remove the new test of appropriate treatment from the Bill.

I start by posing a straightforward challenge. It is for the Government to show why there is any need to move away from the treatability test in the 1983 Act. That test is extremely broad. The term “treatment” covers nursing, care and rehabilitation, but it also extends to such things as education and training. Case law has established that a person may be detained in hospital even if detention was likely to have an impact only on the symptoms of his illness rather than on the actual condition.

Given all that, one really must ask what is wrong with the test as it stands. The Government’s answer appears to be that some individuals are dangerous to others because of a personality disorder and should not be excluded from the scope of the Act merely because they are deemed to be untreatable. This is a rather strange dimension of the argument. I am not aware of any evidence that patients are being excluded from care and treatment merely because they do not meet the treatability criterion.

All sorts of new programmes and treatments have been developed in recent years to help many people with personality disorders. To the extent that such people are gaining access to these programmes, it is hard to see what the problem is. If such people are being denied access to those programmes, that surely is not a fault of the law or of definitions; it is either because of resources or because clinicians have misunderstood the law. The remedy for either of those things does not lie in amending the legislation. One high-profile example is the inquiry into the Michael Stone case, which did not recommend that the law needed to be changed. It criticised a number of things, but criticised in particular the lack of hospital beds in medium secure units. The amount and the intensity of care that Stone received were, in fact, considerable.

The Government also believe that introducing a test of appropriate treatment will somehow make a positive difference to the number of people receiving care and treatment who need it. This is absolute nonsense. Not only is it nonsense, it is dangerous nonsense. To start with, the treatment does not have to be given; it simply has to be available. “Appropriate”, as I am afraid I have said before, is a classic weasel word. What does it mean? In whose opinion is it appropriate, and to what end? It is so vague as to be capable of almost any interpretation. As such, it in effect gives clinicians unfettered powers, because if clinicians do not have to show that the treatment available will do the patient any good, you are in effect saying that they may detain anyone who is ill and who they think may pose a risk, even if the person does not actually receive any treatment. The only condition is that treatment must be available and that the environment must in some way be therapeutic. There is nothing in the Bill to say that detention must be necessary in the circumstances, nothing about a patient’s health needs being significant, and nothing about the effects of the mental disorder being serious.

I question whether the detention under those terms of someone who has committed no crime is consistent with human rights law. It is for other noble Lords who are versed in that field, such as the noble Lord, Lord Carlile, to advise us on that point, but the ethical basis of forcibly detaining someone when he obtains no benefit from it, merely because he is mentally ill, is unacceptable. It could bring into the reach of compulsion not only a small additional group who may benefit, but a large number of people who should never be subject to it. The Mental Health Alliance provided some of the examples in my briefing notes. The depressed woman who is being given vocational training would, in theory, be subject to this, as would the young person recovering from an eating disorder who is on a regime of nutrition and exercise, and the man on an anger-management course. We need to ask the Minister why he is comfortable with that thought.

Several things must follow if the Government genuinely want to ensure that everyone who needs mental health treatment receives it, although I do not accuse them of disingenuousness on that point. They must recognise that the Bill as worded will not do. We must restore the notion of therapeutic benefit if mental health professionals are to continue to practise ethically, which is an extremely important consideration. We must tighten the wording to reassure service users that the changes to the Act are not a ploy to use mental health law as a backdoor means of achieving social control. Once people get that idea, we will do the very thing that we least want to do; we will drive those people away from mental health services. If patients start to avoid the service, effective intervention will prove much more difficult, and public safety will not be improved one iota.

If there is one issue in the Bill that has generated more suspicion and hostility than any other, it is this. The Government need to do two things: to convince us, which they have not done yet, that the current law needs to be changed; and to persuade us that what is substituted for the current law is an improvement that will command the confidence of patients and the professions. As it is, I am afraid that we are looking at the worst of all worlds.

Perhaps I ought to start with the phrase “as I was saying”, but I shall start instead with a short apology for intervening on the wrong amendment. It is a classic example of using the first Marshalled List instead of the second, which is absolute proof, if any were needed, that sparing the Earth’s resources by using one set of papers does not spare one’s blushes when one gets it wrong.

I shall not repeat what I said earlier. I had made a point about the civil liberties of patients and the individuals who are affected by them, as well as about the rights of the community. It is a balance of rights. I had made a point about the difficulty of definition and I had just started, before my noble friend drew my attention to the different amendment involved, to speak about the 1959 Act and the way in which the hospitals were changing from that time onwards. I was embarked on a grand scheme of describing a situation—I remember it all too well—where the hospitals were providing a care and safety role for large numbers of people who did not need to be there. At the same time, they were providing a place of safety for people who later on fell under the definition of not being treatable. That problem has to be addressed. Over the years, all parties have ducked it because it is so difficult. It is about personality disorder, but we have to recognise that it goes wider than that.

In the 1960s and 1970s, the problems resulting from the failure of psychiatrists in particular—but not just psychiatrists—to offer treatment for personality disorders had a dramatic effect. By that time, there were many people out on the streets who would not have been there previously. Additional problems were brought on by drug abuse. In the early 1970s, I was working as a probation officer in the King’s Cross area. The problem which we faced at that stage was that one would come across people who, whether or not they had a personality disorder—there was an area of difficulty around that—clearly needed help and treatment and who were very often asking for it. They were often asking for help in secure circumstances, but you could not offer it. That is a major problem. The Front Bench opposite referred to the Stone case. Michael Stone had had previous psychiatric treatment, but when he went back to another hospital and asked to be readmitted because he would do something very damaging or dangerous otherwise, he was refused. This was a common experience for probation officers and other people who were working in this area in the 1970s. It has remained so since then. Although I have left the profession, plenty of contacts tell me of instances—although there are fewer of them—of people who are refused admission or treatment because their condition is regarded as not treatable. This is a major problem.

The situation now is slightly different, but almost any Member of Parliament from an inner-city area will be able to tell you what sort of people are affected. Members of the House of Lords need to be very aware of this. Your heart sinks as a Member of Parliament when people contact you and describe the behaviour of someone who is clearly unwell and whose behaviour is deeply disturbed. The people immediately around them are scared for good reason. The person will not have done anything against the law, although they will have done some things which might be profoundly dangerous. Shortly before I left the House of Commons, I came across the example a man who would throw very heavy objects over the garden wall without looking over the other side first. He was very disturbed; he had all the signs of disturbance. One could not have arrested him. The police came round to warn him, but nothing was done and the hospital trust said that he was not treatable. The police were saying, “He has not done anything wrong. We’ve warned him, but we can’t do anything about it”. Members of the community would say to me, “What’s the guy got to do? Has he got to kill one of us first before you take any action?” It is a very real issue.

Another case which came to me was that of a woman who had plenty of money and was not unintelligent, but her house was getting into ever-worse repair. I would have classed her without any hesitation as having a personality disorder, although she was very well presented. Her house went downhill. She set fire to parts of it and began to use the garden as a toilet. You can do things about a garden being used as a toilet if you can show that it is a danger to others in terms of environmental health, but you cannot always do that, particularly if they bury it. Eventually, after five years of the neighbours putting up with this, I got a compulsory purchase order on the house. That is the difficulty of dealing with cases such as that. It is why it is bad to say that that person did not need treatment. That certainly does not help them.

When we talk about patients’ rights, we need to understand that for some people whose behaviour is disturbed and shows signs sometimes, but not all the time, of mental illness, we might need to exercise some control and restraint. If you do not, you are behaving like the bad parent. If you say, “Well, it’s all right for her to go to the toilet in the garden and it is not harming anyone else”, you are being a bad parent. In cases such as this—as I have said, many inner-city MPs will have them—we need to be able to intervene.

The Front Bench of the Conservative Party asked whether being able to do so will make any difference. It will make a difference, although, as I indicated in my earlier, inappropriate intervention, it might not make enough difference for us not to have to return to this at a future date. It will make a difference because it toughens up the system. It will make it more difficult for a health authority to say that it will not intervene. Faced as an MP with a number of such cases, I would have felt able to go to a health authority and say, “You cannot say that appropriate treatment is not available here”.

Moreover, as some of the psychiatrists said in our meeting with them a few days ago, it will help to change the culture and practice in psychiatry, making it less likely that arguments will be put forward that treatment cannot be given and the person should be left alone. It is to a large extent a culture-and-practice matter. During my days in the Probation Service in the 1970s, it was very common for a psychiatrist to say, “I am not going to deal with them; they’re dangerous”, yet probation officers, social workers and a whole variety of other people had to deal with them. You cannot just walk away from this. Psychiatrists have got better and you hear that said far less often, but you still hear it. When a psychiatrist would say that they were not going to admit the person in question, you then had to look around for a hostel. What would the hostel say? “They’re too dangerous”. Alternatively, they would throw them out on to the street again when they became aggressive.

My final point is, again, well understood by elected Members of Parliament, who constantly face a battering from constituents about it. I deplore it when the press come up with gross headlines that actually create fear and whip up hysteria about “mad” or “bad” people. I have had plenty of occasions to have a go at the press about that and I have a record for doing so.

The real warning for anybody who deals with this politically is that, however inappropriate the headline, underneath it there is very real anger and fear in the community. Legislators have to take into account not just the rights of the individual concerned, and not just the rights of the community, but fear levels in certain areas of the community on certain issues, of which this is a prime example. You ignore that at your peril. It is like sentencing policy. The reason it is so difficult to get sentencing policy right is that people always want longer and longer, and tougher and tougher, sentences. It is easy to say that that does not necessarily work, but we know what people want on it—they tell us very clearly.

My basic message to the Government is: by all means keep the Bill as it is. I certainly approve of the measure. I think it will make things better, helping to change culture and practice, and enabling people to say, “Look, this wording is tougher than the previous wording, so you cannot duck out of it”. It will enable people to get a bit more confidence in the system, which to some extent has been lost. It does not get in the way of patients’ rights, but it recognises that these rights, as I indicated before, are very much part of a package of rights, which relate to individuals in the community as well.

At the end of the day, if we still get problems of the type that I have described, then the Government may well have to return to this issue with rather tougher wording. The key issue—which goes back to what I said in an intervention on Monday—is to get away from this terrible fear that we are somehow going down the road of the Soviet Union, or whatever. It is not the wording of a particular clause, about a particular mental health problem, that safeguards liberty; it is the rule of law and all the extra bits you put in, such as the mental health tribunals. That is what protects you. The idea that this could only happen in an authoritarian regime is nonsense.

That is why I again ask people to think about what was happening in the 1950s when we did lock people up. Actually, they were not always locked up; they could often go out and get jobs and work from the hospital—it was like a big hostel in some ways. Some were locked up, however, and it was inappropriate. Some were kept in there for years and years and they should not have been. At the same time, we provided a structure for them, as that was the best form of treatment—a lot of this was before modern drug therapy was around.

Therefore, I say to the Minister, go ahead with this and see how it works, but do not be afraid to return to it. We will never get it exactly right. There will always be a problem of definition around essentially behavioural issues—psychopathy, personality disorder or whatever you want to call it—which we know are also about grossly disturbed behaviour. In King’s Cross, I worked mainly with people who were labelled personality disordered and with alcoholics—the two were often combined, which made it even more difficult. However, it is abundantly true that you know when you are dealing with one of them for a long time. It is the old story: you cannot define an elephant, but you know if there is one in the kitchen. The issue here is not that we lock them all up, but that we have some way of containing them for periods of time, such that it is constantly open to review by non-medical and non-social work specialists—hence the importance of the health tribunals and the law, and so on.

Let us not kid ourselves, however, that this is not a serious problem. The numbers are admittedly small, but the impact is great. If I took you to the neighbours of the lady whom I described right now, they would express far stronger feelings than I am expressing about the inability of the health services and the law to help.

The noble Lord, Lord Soley, knows that I hold him in very high regard. I regard it as a privilege to follow him in debate. I hope he will take it as no more than an affectionate reproach when I say that I find it much easier to follow his speech than his argument on this occasion.

I suggest that he has completely failed to explain to the Committee why a therapeutic benefit test would be less effective than the appropriate treatment test contained in the Bill. The report of the scrutiny committee, of which I was chairman, contains a list of the evidence it received from page 279 to page 293—a huge list it is. A very large proportion of that list consisted of evidence on precisely that issue and the whole question of dangerousness.

It is very important that nobody should get the idea that the noble Lord, Lord Soley, wants to protect the wider community, who have the right to be protected from dangerous people, while the rest of us are simply trying to protect the rights of a small number of seriously mentally ill people. That would be to traduce our argument. I completely share with the noble Lord and the Minister the aim that as many people as possible who appropriately fall within the provisions for compulsory treatment, within the ambit of the Mental Health Act 1983 as it will be amended, should be brought within that scope.

Follow that. For me, this is simply the most important amendment to the Bill. However, the noble Earl, Lord Howe, and the noble Lord, Lord Carlile, have been so eloquent and clear in outlining the issue that I shall be brief. I feared that the noble Lord, Lord Carlile, would use my best quote from Professor Nigel Eastman, but he did not. I cannot remember whether he said this in the Joint Committee or on another occasion, but at one point he observed that if you have so-called hospitals where people can be locked up without the need to have therapeutic benefit,

“you are creating snake pits”.

I acknowledge the difficulties of the word “treatability” and how it has been misinterpreted or used as an excuse over the years. I should say to the noble Lord, Lord Soley, that I recognise the scenario he described, and certainly as a young trainee psychiatrist I had a great deal of sympathy with the desperate plight of people who seek—or perhaps ought to seek—help but do not get it. We know that excuses are made because of resources and inappropriate attitudes, but I can also remember the mental hospitals and the containment they provided. I would not wish to go back to that era because many of them were simply snake pits and would not do any more. So I acknowledge the difficulties of the word.

However, the concept of therapeutic benefit must not be jettisoned. We have to go right back and ask: what is the purpose of a mental health service? The same as any health service, it is to relieve suffering. People who go into mental health care do so because they have a passionate commitment to alleviating the suffering of those who suffer from mental disorder. If we change what healthcare professionals aspire to do and to be, we change the very basis on which medicine, nursing, psychological therapies and so on are based. Even with someone who is dying and in receipt of palliative care services—the Alzheimer patient at the very end—we still aspire to give therapeutic benefit. We provide care. We do not give up. That is the whole point. It is utterly fundamental that we should retain that idea somehow within what we are trying to do for people, including those whom the noble Lord, Lord Solely, has so eloquently described. However difficult they may be, they need to be accepted and welcomed within our services.

Case law has established that a person can be detained if hospital treatment would prevent deterioration in his condition, make him more co-operative and insightful or impact on his symptoms, even if it would not change the underlying illness. In fact, most medical treatments do not cure the underlying illness; they relieve symptoms or reverse the effects of symptoms. But the courts have been clear until now that mental health law should not permit indefinite preventive detention of a person for whom no benefit could be shown; simple containment is going too far. So, given the breadth of the existing test, it is hard to see what the Government seek to achieve by the new test, except to allow ongoing detention beyond that currently permitted by the law—and that is where I stick.

When I first read the appropriate treatment test I thought, “Oh, that will do. That might be it”. But the more I see how broad is the reach of the legislation and the concept of appropriate treatment—it is extremely difficult to define—the way in which it is described in the draft code of practice becomes almost meaningless. There is no requirement that the patient should receive any benefit beyond that of confinement in a therapeutic environment. In other words, there does not have to be an aspiration to improve and rehabilitate, and that is simply not acceptable in mental health services. It is inherently unethical to permit people to be detained in hospital or to have their lives controlled when they do not obtain any benefit from it. All members of the Mental Health Alliance consider this a fundamental principle of mental health law which must not be jettisoned. Others have spoken so eloquently that I will not go on about that.

We have mentioned repeatedly the fears of black and ethnic minority communities and how they are disproportionately affected by this provision. We need to provide people with services that are not only utterly welcoming but also genuinely trying to assist their mental state.

If clinicians have misunderstood the law—I do not think they have; it was used rather as an excuse—the situation should be remedied through training and the provision of an understanding about what services are supposed to be about and the kinds of people we are willing to treat. But changing the law will not provide extra beds or facilities and it will not make people easier to treat in ordinary psychiatric facilities. I do not think that clinicians will be bullied into incarcerating the inconvenient, but Clause 4 must go.

I want to speak against this group of amendments, and to discuss the unsatisfactory nature, in my view, of the treatability test and what I regard as the associated therapeutic benefit test. I shall emphasise what I regard can be seen as the benefits of the Bill’s approach to appropriate treatment. I have the greatest regard for the views of the noble Lord, Lord Carlile, and the noble Baroness, Lady Murphy, but I fear that on this issue I disagree with them. I will try to set out the reasons why. I will certainly not try to compete with my noble friend Lord Soley’s practical experience in this area, although much of what I will say reflects many of the views he was expressing in terms of that experience.

It is worth reflecting on the fact that there is a growing body of opinion that recognises the drawbacks of the treatability test. It is simply not true that everyone in the psychiatric profession accepts that it is a reasonable way forward. Indeed, one distinguished forensic psychiatrist has said that it has been a disaster and must be abolished. Those are his words, not mine. One of the many drawbacks of the test has been that certain groups of patients have been labelled untreatable and have thereby been denied services. This is not just about locking people up; it is about denying them access to services. That is bad for patients, for the commissioners and providers of services and for the wider public, who may well consider that services are washing their hands of certain patients who represent a risk to public safety.

It is too easy just to dismiss as populism the public view on this issue. Mental health services, including many of the eminent psychiatrists the noble Lord, Lord Carlile, drew our attention to, sometimes need to stand back and see how the wider public may see them and the way they are providing their services. The public think that the services are washing their hands of difficult people who require services but are regarded as untreatable, and therefore as a group the professions do not wish to engage with. That may be unfair, and professionals may say so, but that is often a strong public perception. We as legislators have to take account of some of those perceptions, because some of them may be based on reality.

It is very difficult, as someone who has spent a good deal of the past 10 years working, both in the Home Office in government and as a health Minister, simply to brush those arguments aside. They come up time and again, not just through constituency cases but as part of a wider public debate that encompasses this subject area. We have to listen to some of those concerns. We cannot get away from the fact that the treatability test has been used by some professionals to avoid engaging with difficult individuals whose conditions, I have no problem accepting, are undoubtedly difficult to deal with and to treat. However, a failure of professionals to engage with those individuals—and, frankly, trying to pretend there has not been a failure to engage defies reality—is undoubtedly equally an issue that concerns the public and puts individuals and the public at greater risk.

Labelling people with personality disorder as untreatable has, in my view, produced a culture that has held back the development of services for them, even though there is growing evidence of effective treatments. No one is claiming that there are cures around the corner, but this is about whether we can make things a little better and protect some of those individuals, improve the quality of their lives and protect the wider public. That is what this is about. It is not about absolute cures. No one is arguing that there will be absolute cures. Because the treatability test requires clinicians to predict the outcome of treatment, it can lead to patients not co-operating in the hope of engineering discharge and tribunals and courts being asked to discharge potentially dangerous people on the basis of arguments about whether a patient is benefiting. We are in that territory. That is the day-to-day reality of the territory that we are in. That can lead to release, even though more treatment is needed, and thereby lead to greater risk to the public.

As we heard this evening, there are those who argue that if the treatability test is to go, it should be replaced by a therapeutic benefit test. In other words, a person should not be detained under mental health legislation unless there is a treatment available for the condition that the clinician can be pretty certain will deliver therapeutic benefit to the patient. That is as I understand the arguments. This seems to me a line of argument that is remarkably like the treatability test and could be argued to be an even more demanding test than treatability. It does not surprise me that some professional opinion is in favour of that. Some professional opinion is in favour of keeping the treatability test, so why should it be against a more rigorous test in terms of therapeutic benefit? Moving along this path seems to me just another way of collectively washing our hands of a group of individuals with particularly difficult disorders and denying them access to services. I emphasise again this issue of denying them access to services, which others have raised. If you create a culture in which you accept professionally that some people are too difficult to deal with, you inhibit the development of treatment services that will help you deal with them. That is the effect. Trying to pretend that is not the effect is frankly disingenuous.

At the same time the public would also continue to be put at risk. Mental health services are placed in a position where they seem almost to be saying, “We prefer to wait until an offence is committed by such individuals and then allow the criminal justice system to be invoked. At that point we will be glad to offer our professional services”. That is what the position seems to be to many lay people. That is the appearance of the service response. I am not a clinician, but if I were I am not sure that I would be very comfortable with the ethical position in which I would be placed with such an approach. Some in the profession need to reflect a little more on how this comes across to other people in the wider public arena.

The fundamental flaw with both the treatability test and the therapeutic benefit test is that they seem to require clinicians to have a degree of certainty about the outcome of a course of treatment that is never likely to be achievable with some of the complex so-called psychopathic disorders that we are dealing with here. You cannot have that level of certainty inherent in the treatability test and the therapeutic benefit test. The disorders that we are dealing with require mental health professionals to have a much higher degree of certainty about outcome than I suggest we require of a clinician treating complex physical conditions at a similar point in their assessment and treatment process. We are asking one group of doctors to have more certainty about the outcome of the treatment. The noble Baroness shakes her head but if we follow the logic of that, it is what we are doing. We are asking for a higher level of certainty regarding the outcome before you begin the treatment than is often the case with physical conditions. That is the logic of where we shall end up. In my view, by continuing down this path we shall put psychiatrists in a different position from that of physicians.

It is for those reasons that I believe the Government’s approach of “appropriate treatment” is right in the difficult circumstances that many mental health professionals face.

I am grateful to the noble Lord for giving way. He has made an assertion, which I understand to be that there is less certainty of opinion when a psychiatrist makes judgment than with all other clinicians’ judgments. I want to challenge that. Does the noble Lord really believe that a neurosurgeon has any more certainty when he judges the effect that an operation will have on a large brain tumour, or that an oncologist has any more certainty in prescribing chemotherapy for certain types of cancer, than a psychiatrist has when giving his medical consultant’s opinion in relation to mental illness? If so, I would welcome him citing some evidence to support that.

I was not exactly saying that. I was trying to explain—no doubt inadequately, so I will have another go before I continue my arguments—that the inherent nature of treatability tests and the therapeutic benefit test is that they presume a knowledge of outcome that is actually a higher test. Noble Lords may shake their heads, but as a person with a reasonably logical frame of mind who, on the whole, understands the Queen’s English, I think that they are asking to raise a higher test than we ask some physicians to apply in how they respond to physical conditions. Your Lordships may disagree with it, but I happen to have that view and believe that I will be sustained in it when people reflect a little more on it.

I will continue with the arguments that I want to develop. As I have explained, I believe that the Government’s approach of appropriate treatment is right in these difficult circumstances and I say to the noble Earl, Lord Howe, that “appropriate” is neither a weasel word nor a cop-out professionally. It means what it says, in that the clinician should be sure that the treatment is right or suitable or fitting—those are the kind of dictionary words that “appropriate” actually means and any of them can be chosen as preferred. It assumes that the clinician will make those judgments based on the particular circumstances or individual or purpose on which he is required to act.

Inevitably, professional judgment has to be used in particular circumstances, but if it is wrongly used—if the person makes a gross error of judgment about whether treatment was appropriate—then it can still be challenged. But I would suggest that the Government’s approach of an appropriate test is more realistic, being more in line with what we expect of doctors treating physical conditions. We do not expect them always to be sure of the outcome before beginning treatment, but we expect their actions to be appropriate for the circumstances that confront them with a particular patient. Simply because deprivation of liberty may be involved in some cases of complex personality disorders, it does not seem to me that mental health clinicians should be expected to have a greater gift of foresight, or should see greater beneficial clinical outcomes, than their physical disease counterparts.

I have a good deal of sympathy with the difficult circumstances that psychiatrists may find themselves in as they attempt to make judgments about some of the complex personality disorders facing them, where deprivation of liberty is involved. However, I do not consider that we make their lives any easier by giving them either an unrealistic test—like “treatability” or therapeutic benefit—or no test at all, which effectively enables them to disengage from difficult cases where patients are serious risks to themselves or to others. That is the situation that we are in danger of getting into.

The appropriate treatment approach places a professional clinical requirement on clinicians, but also allows professional judgment to be exercised. It is not a deterrent to the development of services for people with personality disorders in the way that the treatability test has been. It is, however, still a test against which allegations of poor professional practice can be assessed, so it provides safeguards for patients. It also provides greater public protection, by ensuring that clinical services are provided to those who need them if their disorder is to be tackled, rather than allowed free rein in the public arena. It is a better way of ensuring services are provided than we have now, and we should support this approach and not pursue the route proposed by the amendments. They are retrograde steps that would damage service development to patients and the wider public.

I say very firmly to the noble Earl, Lord Howe, who raised the issue of human rights, that I do not believe that the present provisions on replacing the treatability test with appropriate treatment run counter to the European Convention on Human Rights. I took the best legal advice that was available to me as a Minister on this issue before I signed the statement on the Bill’s compatibility with the convention. All Ministers have to make that judgment, as a result of the Human Rights Act. We take those decisions very seriously. The Bill is compliant with convention rights, and I do not believe that the appropriate treatment test is a challenge to those rights. On those grounds, we should not go in for what is tantamount, if I may say so, to a wrecking amendment of a major part of this Bill by going down the path of this group of amendments.

It is rather important to be clear about what we are discussing. We are speaking about legislation the purpose of which is to legally facilitate compulsion. When comparisons are loosely drawn with the question of physical treatments, one should ask oneself what precisely are the contexts in which patients are forced to accept physical treatments? When a patient has a brain tumour, the surgeon is required to receive the patient’s informed, written consent, for without it, it is a gross assault. Over the past few years, we have all been made very aware of the absolute requirement for full, informed, written consent. We are talking about legislation the whole purpose of which is to go in precisely the opposite direction and to ensure that, against the patient’s wishes, they are compelled to accept treatment.

I feel, very much like my colleague the noble Baroness, that this clause is actually the key to it all. In many ways, it sets psychiatry right back 150 years. What do I mean by that? Some 150 or 200 years ago, people who were unacceptable because of their behaviour were locked up in jails or put into asylums of various kinds; and that was the progressive step. A few courageous doctors—and in many of these places there were not doctors at all—went out to work. They were called alienists because they were prepared to go out to places where there were no treatments of any kind. It was a question of containing a bunch of people who were very difficult to cope with and manage, who had a whole assortment of problems. What sort of problems were they? Some were organic problems; tertiary syphilis and other infections that left people in a physical and mental mess. Some were psychotic disorders, manic disorders, and a range of what we now know as schizophrenic disorders. Those diagnoses were not even available then.

Why? Because it was all just a bunch of people who were disordered in their heads because of alcoholism, drug addiction—of a very different kind to that talked about now—and criminality. Then there were all the young women with moral imbecility: the ones who had had children out of wedlock. I well remember seeing an 85 year-old when I was a junior doctor who had been in a mental hospital since her early 20s because she had had a child out of wedlock. I was seeing her because she was demented, having been there all her life.

Mental disorder, undifferentiated, meant that they were all put away when they were causing trouble. As time went on, some alienists began to try to differentiate. Were there any differences between all these people with mental disorder? It became clear that there were. Some had infections; some had psychotic disorders; some suffered from the effects of chemicals, including drugs, alcohol and so on. Some should not have been there at all. Some were petty criminals. Over many decades of careful and painstaking work, spending huge amounts of time with these people—often raising their families in the context of these mental hospitals as a way of spending enough time with these patients to find out what was going on—it gradually became apparent that they were dealing with whole different kinds of things, requiring different kinds of treatment.

Why did the changes mentioned by the noble Lord, Lord Soley, happen in the late 1950s and early 1960s? They happened because of the discovery of such drugs as chlorpromazine and amitriptyline. The discovery of anti-depressants and mood-stabilising substances meant that people with bipolar disorders, as they came to be known, could get out. Patients with the range of schizophrenia and paranoid psychoses could have their symptoms dampened down. They were not cured, but their symptoms could be dampened down in order that they could be managed in the community. Most of them did not have personality disorders, in the terms that we are describing now, at all. Psychopaths ended up in prisons, in the Army and in various other places. They were not in hospitals. There were some alcoholics and people at the end of their tether from that point of view, and there was a lot of tertiary syphilis still around. The antibiotics, phenothiazines, anti-depressants and mood stabilisers enabled people to get out into the community. It was not that people with personality disorders were better.

What are we doing in this Bill? We are going right back to lumping everybody together under mental disorder—except for alcohol and drug addiction, because even the Government know that if you put that lot in, the whole thing will collapse completely in practical terms. The rest are lumped together under mental disorder, as though it were all the same thing. When it comes to treating these people the first thing you do, as a responsible doctor, is to try to make an assessment to discover what you are dealing with.

I am a psychotherapist by conviction and practice. If I am dealing with a psychotic disorder I will nearly always use some medication to try to help contain the disorder and protect the healthy part of the personality, in order that I can work with that. However, if I am dealing with somebody who has a personality disorder, I will almost never give them medication. It is rare to try to treat them in that way because it does not help and creates further difficulties down the line. That is different from how you would deal with a person suffering from alcoholism per se, as distinct from alcoholism in the context of a personality disorder. That, in its turn, is different from dealing with a neurotic disorder, an organic psychosis, or some other kind of deterioration. You try to see the differences in these things and treat them in different ways.

I am very familiar with the kind of problem mentioned by the noble Lord, Lord Soley. East Belfast is not a notoriously peaceful part of the world where everybody gets along perfectly. I was a Belfast city councillor and an elected representative for the Assembly; I am more than aware of all the complaints about neighbours from hell and difficult people. I am also aware that sometimes wrong diagnoses are made; a personality disorder is described when it is not that at all, but a psychotic disorder that should be treated as such. However, bad psychiatry does not justify bad legislation. I find myself trying to deal with young people with alcohol and drug addiction problems. We are going to have to try to create a service that is not about medication, but quite the opposite. Let us try to establish degrees and other forms of training in psychotherapy, which did not exist in Northern Ireland. When you set these things up, can you get the resources to make them happen? No.

My mailbox at the moment does not contain letters about the enormous growth of services for people with personality disorders. People write to me because the Henderson Hospital is being closed down, along with other facilities where people are being trained and have been working on these things for 30 or 40 years. They cannot get the resources to continue. When I look at my own facility on trying to admit somebody, what do I find? Is it possible to provide the appropriate treatment? Increasingly, mental hospitals provide only custodial care.

You cannot even keep the trained staff that you have got, because they are falling ill, taking leave or taking early retirement. They are getting out, because they are dealing only with incredibly disturbed people of various kinds and cannot manage to keep their own heads together, never mind the heads of people like the young psychotic patient, who, from the one, sane bit of her head, said to me, “Look doctor, please don’t have me go in—I know that I am really disturbed at the moment, but if I go in there, I am going to be worse”. I had to say to her, “I know that you’re right”. It was actually true, and we tried to find another way of managing her. That is the reality of trying to work in such circumstances.

Noble Lords will be relieved to know that I shall be brief, but I must register my considerable concerns about Clause 4. The Bill, as drafted, would provide for doctors to become involved in the detention of people who are seen to pose a risk to others, who have not been convicted of a serious offence and for whom no treatment that would provide therapeutic benefit is necessarily available. The GMC argues persuasively that that would conflict with doctors’ professional obligations to put as their first concern the care of the patient and their responsibility to provide treatment and care, based on clinical need and the likely effectiveness of that treatment.

That is the central ethical issue arising from the Bill. I speak as someone who chairs a clinical ethics committee in a mental health trust, which, I believe, is the only one in the country—although I am not sure about that. The Bill proposes an extraordinary definition of treatment that could involve in some cases only education and training in work, for example. Since when has education or training for work been a medical treatment? All this would dramatically increase the scope for the exercise of compulsion. Crucially, it would be possible to confine people under the Act when no health benefit would result. The legislation could thus be used as a means of coercion and doctors would be enlisted to undertake the jailer function.

If the Government wish to lock up people who have committed no crime and for whom no treatment with a therapeutic benefit can be provided, they should not ask doctors to be involved. To do so threatens to undermine the doctors’ commitment to ethical principles and to the hippocratic oath. It also threatens to increase the stigma attached to mental health problems and to psychiatry itself—the precise opposite of the Government’s declared intentions with which I am familiar. I have no distrust in general in the Government’s intentions around stigma; they have been good on that issue. It could thus seriously undermine the trust that is conferred on the medical profession by members of the public.

The Government are in danger of undermining their own good policies, never mind their intentions. In particular, the Bill will threaten the work of assertive outreach teams which were established to manage difficult mental health problems in the community. The raison d’être is to avoid compulsion wherever possible and thus to reduce the stigma for users of mental health services and, in particular, the stigma associated with people who present a risk. Many of them are dangerous. But even these people are worked with effectively day by day, week by week, by those assertive outreach teams. It is one of the great things that the Government have done. In my experience, the quality of service in mental health is changing for the better as a result of these teams. Psychiatrists are spending much more time seeing people away from the hospital. More and more psychiatrists are training in evidence-based psychological therapies. Of course, there is a long way to go.

I believe that the Bill would be an incredibly retrograde step. The emphasis in the Bill is on compulsion, whether in hospital or in the community. If the Bill remains unchanged, the inevitable increase in the stigma attached to mental illness is one of the main reasons for my personal objection to the proposed appropriate treatment test. It is a massive objection to the Bill. I know that the Government do not want that effect.

The Royal College of Psychiatrists makes the point that if the Bill became law unamended it would probably not even be effective. It could indeed increase the risks to the public. The very small number of really dangerous people along with many others would steer clear of mental health services. Safety can best be improved by making services accessible and effective. That is what assertive outreach teams are working so hard to achieve. Their remit is to make and maintain a therapeutic relationship with patients in the community who are most resistant to contact with the psychiatric services, most resistant to treatment and most at risk of harming others. The job of any legislation must surely be to support rather than hinder that precious work.

From the standpoint of international conventions, it would appear that the absence of a therapeutic benefit test would breach the UN principles for the protection of persons with mental illness which requires that,

“an independent authority is satisfied that the proposed plan of treatment is in the best interest of the patients health needs”,

prior to any compulsory treatment. I believe—the noble Lord, Lord Warner, says differently—that the Bill as drafted would breach the European Convention on Human Rights. A form of preventive detention could not be justified in the absence of evidence of imminent danger to members of the public. The noble Lord, Lord Soley, made an eloquent speech about real problems which we all recognise and with which we are all familiar. Perhaps ways could be found within internationally agreed principles to detain potentially dangerous individuals although I doubt it. My point, along with no less a person than the noble Lord, Lord Carlile, is that such a policy simply does not belong in mental health legislation.

We seem to have mixed messages coming from the Government. The code of practice makes clear that the Government’s proposed test falls short of the therapeutic benefit test. The code states that,

“medical treatment can only be considered appropriate if it is intended to address the mental disorders from which the patient is suffering”.

We are told that “intended to address” means that the purpose of the medical treatment is to alleviate, prevent deterioration in, or otherwise manage the disorder itself, its symptoms or manifestations or the behaviours arising from it. If a secure environment controls behaviour, it seems that this would satisfy the test. And yet government representatives in meetings have said in my presence that appropriate treatment would benefit the patient. Of course it would. But that is clearly not the case.

In conclusion, it is not an accident that both the expert committee and the Joint Scrutiny Committee concluded that a proper test of therapeutic benefit was an essential component of the law. I understand that these committees reflect the views of the vast majority of psychiatrists in this country. The truth is that if psychiatrists and psychiatry are to have the confidence of service users and society at large, the fundamental objective of medicine to benefit the patient’s health must be recognised as a central tenet in our mental health legislation.

The hour is late. However, I should like to quote very briefly from the United Kingdom’s Disabled People’s Council’s brief on this part of the Bill. It feels strongly about the provision. It is the only umbrella organisation run and controlled by disabled people, representing more than 100 organisations of that type dealing with different impairments and health conditions including mental health. It describes its view as follows:

“we would see appropriate treatment as an open door for the inappropriate use of drugs for people with learning difficulties. This is because there is no need to consider what is ‘best’ or what would be of therapeutic benefit to them. If the circumstances are, for example, that staff or family members are at risk of being hurt by someone with learning difficulties behaviour then this may well be considered as relevant circumstances which should be taken into account when deciding to prescribe drugs. And further, drugs may be inappropriately prescribed … if other forms of appropriate treatment like establishing alternative communication methods are not currently available”.

It goes on to point out—it seems glaringly obvious—that,

“compulsory treatment should only be given when other (voluntary) treatment options can not provide the desired benefit”.

The council is focused on the benefit. It is the lack of benefit within the Bill that it fears so much.

This has been a long but very interesting debate. It has gone to the core of what the Bill is about; there is no question about that. That is why it has been such an emotional debate. Though it is emotional, I hope that we can none the less try and dispassionately go through the issues and why the Government believe the arguments they have put forward are right.

I want to place something on record because of the fears that have been expressed by some noble Lords. The idea that this provision is going to be used to bung people into a bin is quite the obverse. I am not a mental health expert but I joined the National Health Service a long time ago, in 1972. One of my first jobs was as a works study officer. At that time works study schemes were being introduced into many mental health hospitals, so I had an opportunity to see how mental hospitals worked. The last thing that I would ever want to do is to go back to some of the bad old days and practices. Whatever one’s view about this Bill, we are all committed to high-quality and improved mental health services.

I also want to say that this is not about fingering psychiatrists. Part of the reason we are bringing forward this part of the Bill is to respond to a concern about how the issue of treatability has been addressed. It is not about putting psychiatrists into the dock—far from it. We want to support psychiatrists. We admire psychiatrists, and we understand the pressures they work under.

A number of noble Lords mentioned the development in the quality of the services and suggested that if only everything were perfect we would not need this legislation. Of course we need to improve clinical services, but the Bill is a genuine approach to improving the framework in which high-quality services can be given. That is our intent.

To go through the arguments and reasons for our proposals, Clause 4 formally removes the so-called treatability test from the criteria for detention for treatment under Section 3 of the Act; for those under hospital orders and hospital and limitation directions made by the courts under Sections 37 and 45A respectively; and from those under directions by the Home Secretary transferring sentenced prisoners to hospital under Section 47. It also removes the treatability test from the criteria for renewal and discharge of such detention as well as discharge of unsentenced prisoners transferred to hospital by the Home Secretary under Section 48. It then inserts into all those provisions a wholly new test of whether appropriate medical treatment is available.

Clause 5 inserts the same appropriate treatment test into the criteria for remanding patients to hospital for treatment under Section 36 while in custody awaiting trial or sentence; for the transfer of unsentenced prisoners to hospital under Section 48; and for giving a hospital order under Section 51 of the Act in a patient’s absence—sometimes without convicting the patient in rare cases where a court thinks that that is the proper thing to do. In those circumstances, the treatability test has never been part of the criteria.

The result is that no one may be detained under the sections in question unless, in addition to the other relevant criteria being met—I stress that, because the test is not just the appropriate treatment test—the other stringent tests and safeguards in the legislation must be met. They remain; we have perhaps passed over that in our discussion. By contrast, Amendment No. 13 would retain the treatability test. The noble Earl, Lord Howe, fairly asked me what is wrong with the test. My noble friends Lord Soley and Lord Warner have very effectively answered that.

We believe that there are several things wrong with the treatability test. The fact that it has become known as the treatability test has encouraged the idea that there are whole classes of patients who are inherently untreatable. The fact that the test is especially associated with what the Act terms “psychopathic disorder” has meant that the tendency to a blanket assumption of untreatability has especially affected people with personality disorders. That has meant not only that the Act is not always used when it should be but it has held back the development of personality disorder services generally. The noble Lord, Lord Alderdice, and I may disagree about why those services have been held back, but I think that we agree that there is a problem about how they have developed.

That has left too many clinicians feeling reluctant, ill-prepared or ill-resourced to intervene to offer help to people with personality disorders. As noble Lords have said, such people often experience significant distress and suffering.

I am grateful to the Minister for giving way. Does he accept that in medicine generally, enormous caution is urged on physicians, surgeons and others not to take a treatment approach with which they are not familiar, comfortable and well versed? If they have any doubt whatever about their ability to be successful in the treatment, they are urged ethically by their professional bodies and by the Government not to proceed. That has meant super-specialisation in a whole range of areas—beyond what may even be sensible at times, but that is definitely the pressure. What is stated here is that psychiatrists who do not believe that their particular approach to treatment has something to offer a particular group of patients or individual patient are pressed into treating people they do not believe they have the skills or resources to deal with. There is a problem there. Professionally, the pressure is all one way but, in this specific area, it appears to be in the other direction.

I understand the noble Lord’s point. He is certainly right that the degree of specialisation in the health service generally has given rise to concerns about quality where clinicians do not have the specialist expertise. One of the problems of the treatability test is that it may have lessened that expertise, for the very reason that I gave and to which he referred. One of the negative impacts of the treatability test has been that it has held back the development of the personality disorder services generally. We think that the changes that the Bill makes will start to turn that around. There is no doubt that it has often left too many clinicians feeling reluctant, ill prepared or ill resourced to intervene to help people with personality disorders. We believe that changing the legal framework will provide a much sounder footing in order to put this right in the future.

This is a very important point. One of the reasons why it is beneficial, as the noble Lord’s speech indicated a few moments ago, is that many psychiatrists think of treatability as meaning conventional psychiatry. Appropriate treatment, however, opens up into cognitive psychology, group therapy and a whole range of other treatments that are not the classical psychiatric models.

That is a very helpful point. I do not want to argue for too long about how many psychiatrists are in favour of what. I simply wanted to say to the noble Lord, Lord Carlile, that he was a little unfair. Ten psychiatrists very kindly came to the meeting on Monday. As he will know, they had a predisposition to support the Government’s proposals. We were asked to hold that meeting. It would not be fair for him to say that only 10 psychiatrists in the country support this. I am tempted to say that we will accept the challenge to find more, but I do not think that we should do that. What I will say is that there are some genuine disagreements.

The Minister knows that those of us who are opposed to the clause cited the support of the Royal College of Psychiatrists. We all know perfectly well that if the college supported the Government, they would be holding up the flag of that college at every turn, saying, “We have the Royal College of Psychiatrists—the representative body—behind us”. So we ask the Government to tell us who the psychiatrists are who support them. We really would like to know. We know of 10, but we have not been told of any others, so please will the Minister rise to the challenge? We would welcome him doing so.

I will see what I can do. I genuinely do not know whether noble Lords would find it helpful if the Government arranged more such meetings, perhaps between Committee and Report. Some noble Lords are nodding, and I am very happy to try to arrange them.

We do have serious concerns about the treatability test, even when properly applied. In particular—again, there is disagreement here—our concern about the wording of the current Act, and about the aim of the therapeutic benefit test of the noble Lords opposite, is that it requires clinicians to predict that a particular outcome of a patient’s treatment is likely. In fact, as has been said by other noble Lords, it is a feature of much healthcare, physical as well as mental, that clinicians often cannot say that a particular treatment is likely to work for a particular patient, even when following the best clinical practice. A clinician may not always truly be able to predict that a particular treatment is likely to work for a particular patient.

A perverse effect of the requirement to predict what is likely to happen will be that some patients—often those who pose the greatest danger to other people—will be encouraged to think that they can engineer their discharge by refusing to engage with treatment, especially psychological treatments. I understand the arguments for a therapeutic benefit test, but this is the genuine problem that we see with it. It does not have the culture problem of the treatability test, but, in whatever way such a test is phrased, it has an element of prediction. In contrast, the appropriate treatment test lets clinicians decide whether they have appropriate treatment to offer patients subject to the Mental Health Act, in the same way as they would for any other patients.

There has been a lot of discussion about appropriateness. It is as well to bear in mind that clinicians are already used to applying a test of appropriateness under the Act. Before they get to the new test, they will already have had to decide, as now, that a patient’s mental disorder is of a nature or degree that makes medical treatment in a hospital appropriate. The word “appropriate” is used now, as it is in the new test, because that is precisely what needs to be tested. Whether what is proposed is appropriate given all the relevant factors is the kind of question which professionals need to ask all the time. It is not a subjective question; it does not invite a mere opinion; it calls for a professional judgment by people with the expertise to make it.

It is superior to what is currently in force, because it explicitly demands that the appropriateness of treatment be considered in the round—not just what might be termed narrow clinical factors. All the patient’s circumstances must be looked at, including their age and gender, where they live, where their family and social contacts are, and their cultural background. Importantly, if appropriate treatment cannot be offered, detention cannot be used. Unlike the treatability test, that applies regardless of the label attached to their mental disorder.

Will the Minister address two questions which arise from what he has just stated? He spoke about patients seeking to evade treatment by claiming that their conditions were not treatable. The noble Lord, Lord Warner, too, mentioned that in his speech. Can noble Lords opposite give evidence of the nature and extent of that problem within mental health services? I would like to know how big a problem that is in reality, because, if we are going to accept the Government’s arguments, it is right to have some evidence.

In addition, given how wide the Minister has begun to draw the definition of “appropriateness”, how confident are the Government, and on what basis, that their wide definition of “appropriateness” will not be open to just as extensive an amount of challenge? Although I am a lay person, I can well picture lawyers and representatives pitching up to mental health review tribunals to argue till the cows come home about what exactly “appropriateness” is and whether it can be determined by their age, race and where they live.

The noble Lord, Lord Soley, referred on Monday and again today to mental health review tribunals as a great safeguard within the mental health system. My understanding—I ask noble Lords to correct me if I am wrong—is that it is the job of mental health review tribunals to interpret the implementation of the law, whatever the law happens to be. They are not in themselves a safeguard; they are a safeguard for the law. Therefore, in future, were these provisions to be accepted, tribunals would extensively have to interpret what the word “appropriate” meant.

On the first point, I will write to the noble Baroness with the information that I have available on the kind of example that I have quoted. I guess that, of course, the detention of patients is subject to legislation. Therefore, there are always potential challenges for how the Act operates. I certainly would not want to run away from that. The test of appropriateness is already contained in the 1983 Act, and the noble Baroness will have seen the draft code on which we welcome evidence as to how appropriateness will be judged. Obviously, clinicians will need to use their own professional judgment within that.

None the less, we believe that the test of appropriateness, which is contained in the Bill, will be a more satisfactory test. It will provide a better foundation, and it will avoid the situation where patients—members of the public—are not getting the treatment that they ought to receive because of the perverse way that the treatability test has operated.

Time moves on and I should probably stop there. I just want to finish by saying that I do want to come back to my original comments. This clearly goes to the heart of this Bill—no question about that. I hope that the noble Lords will not be in any doubt that it is my and the Government’s intention to use this Bill as a foundation for ensuring public/patient safety, and a better foundation for improving services in future. I really do think that the fears raised tonight about the appropriate treatment test are unfounded. It is not about social control and it is not about pushing far more people into detention—it is about actually ensuring that we do provide more appropriate services.

I hope that it is in order if I reply very briefly before we move on. This has been an extremely useful debate—we have heard powerfully expressed views on both sides of the argument. However, I have to say to the Minister that I remain unpersuaded that the Government’s case is proven.

Perhaps I may comment briefly on one or two of the contributions. I listened with close attention to the noble Lord, Lord Soley, and he cited a number of examples to support his views. There is one remedy currently available to anti-social conduct, such as throwing bricks over a wall, and that is the anti-social behaviour order. It may be that the police in those circumstances do not want to use their powers, but that is rather a different matter. In fact, the decision not to use legal powers to detain patients is not so dissimilar to any decision not to use the powers to use an ASBO.

I am not sure that some of the other examples that the noble Lord gave were wholly relevant. This is because there was no treatability criterion in the 1960s and 1970s, nor for the cases he was quoting—that is, before the Mental Health Act 1983. Under the 1959 Act, if my memory serves me right, psychopathic disorders were relevant only up to the age of 19 years. They were good stories, but I believe that they were based on the wrong law.

We heard from a number of noble Lords in support of the Government—particularly from the noble Lord, Lord Warner—that doctors are apparently holding back from applying compulsory detention because of the treatability test, which is a barrier. The belief that people are denied treatment because they are alleged or are considered to be untreatable ignores the fact that in this Bill the Government are doing a lot of things that could well address that issue—not the least of which is the fact that psychologists are being brought within the scope of the Act. That will be accompanied by considerable changes of practice in the professions. We should not belittle that point. I therefore wonder why the Government believe that a change in the law will make psychiatrists engage better in the decision-making process. Is it not more a matter of training? In many ways the objections raised to the amendment reflect yesterday’s rather than today’s problems.

The noble Lord, Lord Carlile, was absolutely right; there have unfortunately been a large number of homicide inquiries in recent years, but not one has suggested that the treatability test was an issue or that it should be amended. The noble Baroness, Lady Murphy, spoke passionately in favour of retaining the concept of therapeutic benefit, with which I fully agree. The mental hospitals used to be, and sometimes still are, referred to as bins because people were locked up without benefit. To this day, one of the reasons for having to use the Mental Health Act is that patients do not want to go to those places; they have a reputation. That is why we keep coming back to the fear, which many of us share, that because patients want to avoid treatment, they will continue to want to avoid it, and that will enhance risk.

One has to ask whether, if there is no therapeutic benefit, where the driver is to develop therapeutic programmes and services. On what basis do you give a treatment that is unlikely to benefit a patient? The noble Baroness, Lady Meacher, took us to the heart of medical ethics on that issue. This is not to do with denying people services; we want to shed that illusion. It is to do with locking people up under the care of a doctor when they do not want to go there and furthermore the doctor cannot do anything to help them other than perhaps experiment on them by administering drugs. No physician is permitted to lock up a person with a physical illness against that person’s wish.

The noble Lord, Lord Hunt, said that the treatability test involved an element of prediction. That point was also made by the noble Lord, Lord Warner. I think that they were wrong, in law at least, to say that. In my view, the treatability test does not require any level of certainty about outcomes; it simply requires containment under supervision by a trained professional in a therapeutic environment. I refer the Minister particularly to a relatively recent case, from 1999, Reid v Secretary of State for Scotland, which concerned a restricted psychopathic patient whose anger management was improved by the supervision he received in the structured setting of a state hospital, but where the judges were clear that that did not go further to permit indefinite preventive detention of a person for whom no benefit could be shown. There is no high level of certainty of outcome, simply a likelihood that there is a clinical basis for prescribing the treatment.

We come back all the time to patient autonomy, which we debated earlier. With a physical illness, the physician discusses with the patient the likelihood of benefit from the treatment; it is then the patient’s decision whether to take the treatment. Nothing is forced on the patient in those circumstances. I have a worry about human rights here. I say to the noble Lord, Lord Warner, that the Joint Committee on Human Rights criticised the 2002 Bill in this area. It said:

“Whatever the Government’s intention, the wide definition of medical treatment in the draft Bill would allow people to be detained where the only treatment that could be offered was care under the supervision of an approved clinician”.

The Government would do well to reflect on the Joint Committee’s report.

I come back to my fundamental worry here, which is the vagueness of the wording of the Bill, the likelihood of this leading to many groups of people becoming subject to compulsion who should not be, and the consequent profound ethical problems for clinicians, to which the noble Baroness, Lady Meacher, referred. These remain serious concerns.

As noble Lords have said, this is one of the key issues in the Bill. It is clear that views are polarised and, regrettably, I do not think we are likely to achieve a meeting of minds on it in the short term. I hope that some positive purpose will be served by a period of reflection between now and the next stage of the Bill.

Clause 4 agreed to.

I beg to move that the House do now resume.

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

House resumed.

House adjourned at 10.11 pm.