My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.

My Lords, immediately following the announcement on 23rd November 1981 of Her Majesty's Government's decision to close Her Majesty's Dockyard Gibraltar, United Kingdom officials visited the Rock for discussions with the Gibraltar authorities. On 14th December 1981 the Chief Minister of Gibraltar, Sir Joshua Hassan, called on the Foreign and Commonwealth Secretary in London, and held detailed discussions with the Lord Privy Seal and the Minister of State for the Armed Forces.

My Lords, I thank the noble Earl for that reply. I should like to ask the noble Earl the exact date upon which it is anticipated that the dockyard will be closed; how many Moroccans and Gibraltarians are likely to lose their jobs; and have any applications been made by firms to set up further industries to provide employment for the future?

My Lords, we are expecting the closure to take place some time in 1983. It is a little early at the moment to give any concrete figure about how many people will be put out of work, but it is thought to be somewhere just under 1,000. As regards the final part of my noble friend's supplementary question, I point out that we very much hope that there will be approaches for a commercial use of the dockyard.

My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.

Not entirely, my Lords. But we do have a service which is of immense benefit to the nation, and we are continually seeking ways to improve it.

My Lords, I thank the noble Lord for that kind and generous reply. Would the Government be prepared to look very carefully at the working conditions and remuneration of Britain's nurses, who make such a massive contribution to the National Health Service, and may they be treated as generously and as properly as other sectors of industry that are now approaching the time for making claims to the various Whitley Councils?

My Lords, I cannot, of course, anticipate any exchanges which may take place in negotiations of this nature. The noble Lord may be interested to know that the total of all nursing and midwifery staff in England, including unqualified staff and agency nurses, increased from 358,447, in whole-time equivalents, in September 1979 to 370,000 in September 1980—an increase over the year of about 11,500.

My Lords, in backing up the noble Lord, Lord Molloy, I should like to ask that the nurses be treated more generously than other people in industry because of their very noble habit of not going on strike.

My Lords, the Government are well aware of the very valuable work done by the nurses and the way in which they do it, but I am not prepared to anticipate any future negotiations.

My Lords, although the noble Lord has quite rightly said that the Government are seeking to improve the National Health Service, can he tell the House how the health service is being improved by the expenditure of £100,000 a year on keeping St. George's Hospital empty and on proposing to sell this very valuable site for peanuts—for £23,700? Surely that does not help the National Health Service.

My Lords, I should like to explain the background to that question. Roughly half the site is vested freehold in the Secretary of State; the other half, of which a proportion is occupied by the medical school, is also held freehold, but the freehold is subject to special provisions in the conveyance and those provisions restrict the site to use as a hospital and a medical school. If that use ceases, an offer back, a preemption right, must first be made to the Grosvenor Estates, from whom the site was originally acquired in 1767, before it can otherwise be disposed of. As my right honourable friend is satisfied that there is no further health service requirement for the site, he has concluded that the best course of action is to dispose of it for the best commercial price which can be obtained within the restrictions imposed by the covenant. Our part of the site is a key to the whole development. We expect to realise several million pounds from it and the transaction to be very lucrative for the National Health Service.

My Lords, is the noble Lord aware that much of the increase in the number of nurses that he has mentioned goes back to three years ago? Last year those nurses finished their three years' training and became fully qualified nurses. Is there not a danger that that has now dropped off and that we shall not be in that happy situation because of the current lack of attraction to the service? Will the noble Lord please again bear in mind the point which has already been made, that because these young men and women do not threaten any militant action or anything of that character it would be extremely wrong if they were in any way victimised because of their faithfulness and loyalty to their great profession?

My Lords, I do not think that I can embark upon a discursus upon the whole of our policy towards nurses, particularly in view of the lack of precision of the noble Lord's Question when he tabled it. It was difficult to anticipate what he had in mind. I shall take on board what the noble Lord has said and whether I agree with him or disagree—and I expect it will be the latter—shall write to him.

My Lords, have the Government any views as to how the site of St. George's Hospital should be utilised?

My Lords, as I have said, my right honourable friend is convinced that there is no further National Health Service requirement for the site. No other National Health Service function in London is suitable for relocation here, which could only be done in any case at heavy capital cost. Therefore, we intend to dispose of it for the best commercial price we can obtain. It is of course subject to planning conditions and that will be the forum in which to discuss this focal point in London.

My Lords, may I ask the noble Lord the Minister whether he is prepared at this moment to state that as a result of the sale of St. George's the several millions that are to accrue to the National Health Service rightly belong to the South-West Thames Regional Health Authority?

My Lords, no; the noble Baroness may not ask me that.

My Lords, although I fully understand his inability to make full comment on negotiations which are proceeding, does the noble Lord not agree that it is time that lip-service about the value of the nursing service should be implemented by making nurses a special case? Furthermore, is he aware that all consultants depend absolutely and completely on adequate nursing care and skill in order to make sure that their treatment is in fact successful? So nurses are a special case. Will he and his Government bear that in mind?

My Lords, the staff side of the Nurses' and Midwives' Whitley Council has not yet submitted a pay claim to take effect from 1st April next, although it is imminent. It will then be for the two sides of the Whitley Council to negotiate on this. As regards the improved longer-term arrangements for handling nurses pay, a tripartite meeting between the Secretary of State for Social Services and both sides of the Whitley Council is planned for early next month. I very much hope that these discussions will result in useful progress being made towards improved arrangements. The Government are committed to the principle that a better system is needed.

My Lords, 1 beg leave to ask the second Question which stands in my name on the Order Paper.

My Lords, in answering the noble Lord's marginally narrower Question, I can say that the Government have already reconsidered their expenditure plans for the next financial year and have done so very recently. On 21st December 1981 my right honourable friend the Secretary of State for Education and Science announced in another place that planned total expenditure on education for 1982–83 is £11·7 billion, an increase in cash terms of 3½ per cent. on the estimated outturn this year.

But when the noble Lord quotes that figure, my Lords, does it take cognisance of the rate of inflation? Although the increase might sound grand in this place, in actual fact when it comes to financing Britain's education it is a decrease. Do not the Government take serious cognisance of the bitterness which is being felt throughout the nation, which we can read about in the media every day? Throughout the length and breadth of Britain's education service—from infants schools, junior schools, secondary moderns, comprehensives, right through to universities—there is a grave feeling that these cuts are eating the seedcorn and damaging the future of our nation.

My Lords, in settling the plans for 1982–83, the Government have taken into account the extent—some 2 per cent.—to which spending by local authorities on education in the current year is expected to exceed the plans, the additional resources (some £50 million for England), announced by the Prime Minister last July to enable more young people to stay on in full-time education in school or college and for additional costs in higher education. The new plans provide for an increase of 5 per cent. in the cash available for education compared with the previous plans. The new target is realistic, but it still requires constraint.

My Lords, is the noble Lord aware that the latest constraints to be announced in the public sector of higher education involve severe cuts in real terms, and that these will mean that the polytechnics will have to cut down on the number of students? Is not this ludicrous, coming at the very moment when the number of 18-year olds is reaching its peak and when this country needs all the highly educated manpower it can get to develop the new technologies? Is not this a ludicrous state of affairs?

My Lords, nevertheless we have to economise and we intend to do so in a pragmatic way related to the output of the institutions concerned. The distribution of the quantum of advanced further education expenditure within the predetermined pool, determined by the Secretary of State for Education and Science, following consultations with the local authority associations, at £539 million, assumes that the major part of securing the necessary economies should fall on those polytechnics and other institutions with the higher unit costs.

My Lords, how do the Government propose to supply enough training in the technical colleges for their new Youth Training Scheme, announced in December, which I know does not start until this year? If the technical colleges are to sustain the cuts—which they undoubtedly are—it would seem to me that they would be quite unable to take on the training which will be necessary. Will the Government reconsider the cuts in that area?

My Lords, I take the point made by the noble Baroness, but if she will study Hansard she will see that I have already referred to the provision made for this contingency.

My Lords, is it not ludicrous that we are now advocating cutting not only education generally but particularly higher education? Is this not the most absurd and shortsighted act to take just now when we need higher education? Every day in the press we read stories about this, and one Minister after another—particularly Sir Keith Joseph—does nothing but go round and say that we cannot afford higher education. If we cannot afford higher education, for sure we cannot afford Sir Keith Joseph.

My Lords, the remarks of the noble Baroness about my right honourable friend's daily programme are a travesty of the truth. He is a most energetic Minister and he is very cognisant of the problems to which the noble Baroness has alluded. I would add that over and above the universities' recurrent grant for the next academic year of £1,137 million, the Government are allocating £50 million in the financial year 1982–83 to be used by the University Grants Committee specifically for restructuring, including the cost of redundancies. My right honourable friend is announcing today that, subject to two modifications, guidelines formulated by the Committee of Vice-Chancellors and Principals for the compensation of university academic staff who are made redundant are acceptable. The modifications concern staff over 50 for whom the existing premature retirement arrangements will apply. Details of the scheme have been placed in your Lordships' Library.

My Lords, in addition to considering unit costs when reductions are made in the amount allotted to polytechnics, would nay noble friend suggest to the Secretary of State that important attention is paid to whether they are fulfilling their proper role of increasing our technological potential, or whether they are continuing to expand in the teaching of subjects in which they are inferior to universities and likely to remain so?

My Lords, my right honourable friend is a more pragmatic man than he has been given credit for in earlier questions, and I will certainly bring that to his attention.

My Lords, will the noble Lord pay attention to the letter which was sent out last week to the directors of polytechnics in which they were informed that there was to be a new formula by which a polytechnic was to be allowed to charge only half of what it was charging last year for its undergraduates? Will he in particular absolutely disown the nonsensical remarks just made about the polytechnics?

My Lords, I will certainly direct my attention to the circular. As to disowning, I shall leave the difference of opinion where it lies.

My Lords, is the noble Lord aware that his answer to my supplementary may have misled the House? Whether he intended to say it or not, he seemed to imply that cuts had only been made related to unit costs. Is he aware that all polytechnics are having cuts in real terms? Even the lowest cut of all, in the case of the Oxford Polytechnic, is being made. Will the noble Lord correct the impression, the wrong impression, he has just made? Cuts in real terms, savage cuts, are being made in all polytechnics and they will all have to reduce their student numbers in the coming year.

My Lords, I certainly did not intend to mislead the House, nor, I think, did I do so. What I attempted to say was that the necessary reduction in funds would he done in such a way as to temper the wind, if I may so put it, to the shorn lamb. That is perhaps not the best analogy, but to put the money where it is most needed and take it from where it is least needed.

My Lords, is the Minister aware—

My Lords, we have now had nearly seven minutes on this Question. It was a very wide Question and I think there is a danger that it is developing into a debate, which your Lordships will recall is one of the things which the Procedure Committee felt should not happen, and I would suggest that we ought to move on to the next Question.

My Lords, may I put a supplementary?

My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.

My Lords, I am pleased to report that the new express coach services continue to be introduced by both private and publicly owned companies. We estimate that since the 1980 Act came into operation about 90 new daily services and a further 70 on a less than daily basis have started. In addition, a large number of new seasonal services operated during the summer.

My Lords I thank my noble friend the Minister for that reply. Can he give any information as to the possibilities of connections to isolated areas of Britain?

My Lords, so far as my noble friend's question refers to the Transport Act 1980, which has encouraged competitive coach services, I believe it should have increased the chances for services such as he mentions rather than the opposite.

My Lords, do not the figures whch my noble friend gave to the House constitute a grave warning to those who earn their living on the railways and are engaged at the moment in disrupting their services?

My Lords, I am grateful to my noble friend for those remarks. I would not wish to be drawn into the present disputes, but of course this has stimulated some reductions on British Rail costs.

My Lords, could the noble Earl give the figures for the number of new services run by the National Bus Company out of the figures he has given? If they are a substantial number, would he not agree that the revenues from those express services in no way make up for the losses being sustained by many sections of the National Bus Company, and are putting in peril some of their difficult rural routes?

My Lords, my understanding is that the National Bus Company has itself reduced a lot of its own fares. I am not sure, out of the figures I gave, how many new services the NBC has brought out. I understand that they have just reduced some of their costs on some of their services at the moment. They have entered into the express service market which has been, I gather, very successful.

My Lords, I beg to introduce a Bill to amend the law in regard to protection of salmon in Scotland and in the River Tweed, and for purposes connected therewith. I beg to move that this Bill be now read a first time.

Moved, That the Bill be now read a first time.—(Lord Strathcona and Mount Royal.)

My Lords, it may be for the convenience of the House if I announce that dinner will be available today at the usual time. The Committee stage of the Mental Health (Amendment) Bill will be adjourned at approximately seven o'clock for a short period. During the adjournment the Second Reading of the Shipbuilding Bill will be taken.

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

Moved, That the House do now again resolve itself into Committee.—(Lord Elton.)

moved Amendment No. 47:

moved Amendment No. 48:

I wish warmly to thank my noble friend for taking this suggestion on board. I am certain that no magistrates' court would hear a case without such legal representation, but as we are trying to make this as good a Bill as possible, I am grateful to the Minister for making this amendment.

moved Amendment No. 49:

Page 15, line 29, leave out (" has ") and insert (" and a restriction direction have ").

moved Amendment No. 49A:

Page 15, line 31, at end insert (", any other medical practitioner or a Mental Health Review Tribunal ").

Perhaps my noble friend can remove, from my mind at any rate, a little uncertainty, and I hope I am asking this in the right place; I did not ask it on Amendment No. 47, where the same point arose, because I felt it better to wait until we had both amendments before us. I am rather puzzled as to the occasions when respectively the responsible medical officer,

"any other medical practioner or a mental health review tribunal",

will be expected to perform the duty which is imposed on them here. There must be a good answer to this, otherwise we should not be having these amendments before us. It would help to know, if there is any demarcation line, where it comes, and for what reason. Of course, the matter may be relevant when we come to certain later and more important amendments.

Under Section 76 of the principal Act the Secretary of State may remit to prison a person who has been transferred to hospital under Section 73; for example, a person who has been committed for trial. As Section 76 now stands, the Secretary of State may act only on a notification by the responsible medical officer that the patient no longer requires treatment for a mental disorder. Amendment No. 47 will allow the Secretary of State also to act on the notification of any other medical practitioner or a mental health review tribunal; and the amendment now before the Committee does the same for Clause 25.

Are we to take it, then, that the Government's view, as expressed in the statute, is that they do not mind which of these various people or bodies performs this task, or when?

I apologise to my noble friend because I had not taken the point about which he was asking. As I understand it, it puts what will now be the three sources of information on a similar basis regarding their power to make the recommendation. I am advised that it is simply that prisoners in the category referred to may he seen by doctors in any of these categories—the regional medical officer, another doctor or a mental health review tribunal—and that there is nothing to choose between them; it is what is most convenient and most appropriate to the case.

moved Amendment No. 50:

Page 15, line 41, after ("direction") insert ("and the restriction direction").

moved Amendment No. 51:

First of all, I think your Lordships' Committee would like to thank the noble Lord, Lord Belstead, for the detailed way in which he has put over the Government's case for this amendment. It is a very involved and detailed matter, particularly the new schedule; and while at this stage we welcome the Government's initiative, which follows the European Court's decision, of course it is a matter which will still need further consideration, and conceivably—I do not necessary say that it will be the case—we might have to bring forward some possible amendment at Report stage. In the meantime, taking the whole thing generally, I would first of all express our thanks to the noble Lord, Lord Belstead, and, secondly, at this stage we certainly welcome the Government amendment.

Could I just ask the noble Lord, Lord Belstead, whether he would explain how much help a legal panel can give an individual patient? Do the patients have to pay, or is the help voluntary? And can they always be represented legally if they wish to be?

I am not aware that there is any payment at all, and I am not aware that there is any problem at all about legal representation. But I should like to take advice on that and reply to the noble Baroness, if I may, a little later.

I would draw attention to the fact there is an amendment down in my name, No. 67—I think a Liberal amendment, too—which will probably deal with this particular point. The noble Baroness will doubtless support it.

I do not think there was any need for my noble friend Lord Belstead to apologise to your Lordships' Committee for the length of his statement because these amendments are important, lengthy, complicated and far-reaching. Speaking for myself, although I listened very carefully to what he said, I think I shall feel more confident that I understood the matter when I have read it all in tomorrow's Hansard. But on a reading of the amendments, and listening as one did to my noble friend, they seem to be a very great improvement on present procedures. I think we all appreciate the trouble that has been taken to try to get this difficult matter right. I have little doubt but that it is right, but, naturally, those outside your Lordships' Committee will also wish to study what my noble friend has said and perhaps advise some of us upon it.

I hope I do not speak too gleefully as a lawyer when I say that I think it is a good thing that there is to be a legally-qualified chairman of each mental health review tribunal. I am sure that that is right, especially in view of the increased responsibilities which these tribunals are going to be given as a result of this Bill.

There is one matter which is not clear on the amendments and which I could not glean from my noble friend's full description, and that is this. What is going to be the geographical distribution of these tribunals? There must be more than one for each regional health authority, I would have thought. Is there going to be one particularly attached to each large hospital dealing with such cases? That would not surprise one. It would be very helpful indeed if we could have some broad idea what the Government have in mind as to the geographical distribution of such tribunals.

I understand that this is primarily a paving amendment for the schedule, for which I will reserve my detailed remarks. Perhaps I may say why I did not intervene when the noble Lord moved Amendment No. 44 last Tuesday. I thank him for his courtesy in sending me his notes on that clause, on this amendment and the other related amendments and the schedule in the package designed to give effect to the judgment of the European Court of Human Rights. I had not read the material that the noble Lord sent me and so I thought it unwise to intervene. The fault was mine. I assumed that we were not going to reach the new clause on Tuesday of last week. I have been trying to remedy that dilatoriness, however, and I have one or two queries to put to the noble Lord.

Just as the new clause which we passed on Tuesday, the clause on the right of unrestricted patients to make application to the tribunal within six months, was removed, we are now being asked to sanction the removal of the right under Section 66(7) of the original Act whereby restricted patients could make an application; although the tribunal's role is purely an advisory one to the Home Secretary. We are asked to do this on the grounds that this is necessary to pave the way for the new power of the tribunals, contained in the schedule, to order a discharge. This is a point which I think was referred to last time by the noble Baroness, Lady Robson, and the noble Lord, Lord Renton. I do not understand the logic of this. Was it necessary to remove the existing rights of unrestricted patients? Can some way not be found to preserve their rights? The noble Lord in the ample notes circulated to some of us said that the Government had drawn one particular inference from the European Court judgment. I do not see why the requirement that there must be a periodic review by a judicial body of one particular sort of patient's right should carry with it the requirement that this period must be identical with the period applying to other categories of patient. Tidiness and consistency may be admirable qualities but there is no substantial reason why they should override the existing rights of unrestricted patients. Perhaps the noble Lord could enlighten me.

As I understand it, this Bill, if it becomes law, will not come into effect until September 30th, 1983. I should like to ask whether the Government contemplate any interim arrangements to apply the European Court rulings at an earlier date than that. If not, are we not in danger of being in breach of the European Court's ruling for the considerable time of approximately 18 months?

Perhaps I may reply to the noble Baroness, Lady Masham, who asked about legal aid and cost in these cases. A patient is not at present entitled to legal aid before a tribunal but can obtain "green form" assistance. But there is a later amendment down about this. Incidentally, I think that is common form so far as tribunals are concerned. My noble friend Lord Renton asked about the geographical distribution of tribunals. Each regional health authority has a tribunal and from each tribunal panels will be selected. Every member will be eligible for these proposals which are being put forward at the present time.

I am sorry but I think that the noble Lord, Lord Kilmarnock, left me slightly behind with his argument. Noble Lords have said many times today that they are going to look at what the Government are saying when explanations are long. I can understand that. On this occasion I should like to have a look at what the noble Lord, Lord Kilmarnock, has said. I am not aware that we are removing any powers from the mental health tribunals. Amendment No. 114 adds the power which is absolutely necessary as a result of the European Court decision—namely, that some forum should have the right of deciding on the discharge of patients and that it should not be left entirely to the Secretary of State. So far as this first amendment is concerned, Amendment No. 51, I gave an explanation of that in the remarks that I addressed to the Committee. I did not equate them with the question that the noble Lord, Lord Kilmarnock, asked.

It still seems to me after having read the noble Lord's remarks last time on Amendment No. 44, that the right of unrestricted patients to make application for a tribunal within the first six months was being sacrificed to the new right of restricted patients to make an application between the sixth month and the twelfth month. That is my understanding. I wondered why this was necessary.

On hearing it again, I think that the noble Lord may be right about this. This is something that I should like to take away with me to make a reply to the noble Lord and perhaps to write to him. I think the noble Lord has got his facts right and I was not right in my previous reply. I will look at it and write to the noble Lord.

I am grateful to the noble Lord.

moved Amendment No. 51A:

Page 16, line 29, leave out (" (other than an offence the sentence for which is fixed by law)").

The Government are genuinely grateful to the noble Lord for raising a difficult and important point. It recurs again in the noble Lord's other amendment to Clause 28, which is Amendment No. 57A and is worded in much the same way. Perhaps the noble Lord will allow me to refer to that in my reply.

The purpose of Clauses 27 and 28 is to ensure that the court has enough information to enable it to decide whether a hospital order should be made and it was not, therefore, thought appropriate to extend the provision to persons charged with an offence in respect of which a hospital order cannot be made. A further reason why the Government have so far thought it necessary to limit the Crown court's power to remand a person to hospital for a report on his medical condition under Clause 27 to offences other than murder is that it is a prerequisite for the exercise of the power that the court shall have reason to suspect that he is suffering from mental disorder. This may seem paradoxical: What better case, it may be asked, could there be for a remand in hospital than one in which a proper diagnosis may be directly relevant to the finding of the court?

We have, however, felt that such a suspicion on the part of the court would be seen as being irreconcilable with its duty to consider impartially the evidence that the accused person had committed the crime of murder (which carries a mandatory life sentence) rather than some lesser form of homicide. The case for retaining the limitation is certainly decisive in the case of remands to hospital for treatment under Clause 28 where the court must be satisfied that the accused person,

"is suffering from mental illness or severe mental impairment of a nature or degree which makes it appropriate for him to be detained in hospital for medical treatment".

For the judge so to decide would undoubtedly prejudice the jury's impartial consideration of the case of a person accused of murder who is running the defence of diminished responsibility.

I realise that it is a difficult matter and is a question of judgment but the Government felt that it was better that it should continue to be the invariable practice that every person accused of murder should be examined and reported on by a prison medical officer with a view to establishing from a completely neutral starting-point, whether there is any indication that a verdict of guilty of murder would not be the appropriate one. The point here is that if every person accused of murder is examined in this way, it cannot raise the possibility of prejudice on the part of the court. For the reasons I have explained, I think that it may not be possible simply to delete the words excluding persons accused of murder.

Having said that, and having tried to explain the reasons why we have worded Clauses 27 and 28 in the way that we have which has drawn the fire of the noble Lord's two amendments, I appreciate the force of the arguments advanced by the noble Lord in support of his first amendment. If the noble Lord thinks it a sensible way to proceed, I should like to consider, without commitment at this stage, the noble Lord's speech and suggestion in regard to Clause 27 and see whether it is possible to overcome the difficulties that I have mentioned and whether it is possible to return to the House at Report stage with a suitable amendment which will achieve the effect that the noble Lord has in mind while preserving the impartiality of the court. I cannot give an absolute undertaking to the noble Lord that we will succeed in doing this. If the noble Lord will allow us to proceed in this way, that is what we shall try to do.

On that basis I beg leave to withdraw the amendment.

moved Amendment No. 52:

Page 16, line 43, leave out ("a medical practitioner") and insert ("two medical practitioners").

I support the noble Lord in this amendment. Unless the Government are prepared to look at this aspect and give some assurances about it, we are running a risk of doing for a second time something which is lessening the rights of the people whom this Bill affects. Although the Bill has many good points, we should guard very carefully against reducing the rights that already exist. That is why I support the amendment.

I would respectfully suggest that there are two essential considerations to be borne in mind when considering the criteria which should be fulfilled before a person may be remanded to hospital for a medical report under the new power provided in Clause 27. The first is that this power is intended to be used only for diagnostic purposes, and I would suggest that it is therefore reasonable to require only a prima facie indication that such diagnosis may be of assistance to the court in enabling it to decide the appropriate course to adopt in a particular case. The second consideration is that it is intended that this option of remand to hospital for a medical report should constitute an alternative to the present procedure whereby when a court considers that it would be helpful to have medical reports on an accused person it has little alternative but to remand that person in custody for the preparation of such reports, without having fulfilled any formal criteria as those proposed in this clause. So, with respect to the noble Baroness, I do not think that it can logically be said that Clause 27, even with only one medical recommendation, can mark a reduction in the rights of people. On any ground Clause 27 marks a very considerable advance for people who otherwise would simply have to be remanded into custody.

I would add—and this may be in the minds of the noble Lords and the noble Baroness—that there need be no concern that a remand for a medical report would otherwise expose a person to the risk of receiving unnecessary treatment without his consent because, whatever view your Lordships may eventually take of the proposals as to consent to treatment at present contained in Clause 38 of the Bill, there is no intention that a person remanded under this clause should be regarded as "detained for treatment" for the purposes of Clause 38: this is expressly excluded by subsection (9)(b) of that clause. I venture to suggest, therefore, that the safeguard of two medical opinions, which is very properly required elsewhere in the legislation when the question of detention arises, is not necessary in this context.

I am sorry to cross swords with the noble Lord and the noble Baroness on this matter because I understand why the amendment has been moved. I hope that the extra points that I have put to the Committee may make the noble Lord and the noble Baroness feel it is worth withdrawing the amendment and thinking about it further.

I am grateful to the noble Lord for his lucid explanation of the Government's thinking on this issue. On the face of it, it seemed to me that there was no good reason for waiving the requirement for the second doctor under this type of committal; but the noble Lord, as usual, has been very persuasive. I should like to read his remarks with close attention and possibly come back to the matter again at a later stage. I beg leave to withdraw the amendment.

moved Amendments Nos. 53 and 54:

Page 17, line 2, leave out ("handicap") and insert ("impairment").

Page 17,line 3, leave out ("handicap") and insert ("impairment ").

moved Amendment No. 55:

Page 17, line 28, leave out ("or further remanded").

I do not think there is a great deal which divides the Government from the noble Lord in this amendment, in that we both see this matter as being one in which we are all anxious that there should be no unnecessarily lengthy periods for either appraisal or treatment. If there were, it would be a misuse of the powers the Government are seeking to put into the Bill. However, your Lordships will see from subsection (7) of Clause 27—and also from Clause 28, which is affected by Amendment No. 58 standing in the names of the noble Lord, Lord Kilmarnock, and the noble Lord, Lord Winstanley—that the Government attach great importance to terminating these remands at the earliest opportunity. The question raised by these amendments is whether our present proposals are reasonable, whether they go far enough, or whether we should render it impossible for a Clause 27 remand to last for more than 28 days—or indeed, if I may just refer to Clause 28, whether the treatment should last for more than 56 days, if I correctly understand the intention behind that amendment.

This is essentially a question of judgment, but I think the Committee would accept that it would be very awkward, and contrary to the best interests of the accused person, if circumstances materialised in which it had not been possible to complete the purpose for which an accused person had been remanded and yet the legislation made it impossible to extend the period of that remand for even a few days. Equally, we must accept that, because of the unpredictable nature of mental disorder and the demands it can make on staff and resources, it can sometimes happen that, with the best will in the world, the reports or the treatment may not be completed within the period originally envisaged.

I think it is essential when considering Clauses 27 and 28 to appreciate that a person remanded to hospital for report or treatment would otherwise have to be remanded in custody; that is to say, would have to go to prison. Therefore, to reduce the upper limit would result in more time, possibly, being spent in prison by persons who could benefit from being in hospital. This is really a genuine argument and not just a piece of reassurance that I am trying to give. The upper limit of 12 weeks was recommended by the committee chaired by the noble Lord, Lord Butler, upon whose proposals the clauses I have referred to are based. There must be some provision for the extension of both types of remand up to a maximum, and therefore I would ask that perhaps the noble Lord might think a little further about this amendment. I hope the noble Lord did not mind my referring to Amendment No. 58 as well as to the present amendment since there is a connection between them, although we have yet to debate Amendment No. 58.

I am most grateful to the noble Lord for his remarks. These amendments are related in that the 12 weeks' maximum is applied for assessment and also, in the next amendment, for treatment. It raises the question of what is meant under "assessment" and whether treatment is likely to creep in under "assessment". Of course, we all very much respect the recommendations made in the report of Lord Butler's committee. I still think that 12 weeks is rather excessive and I wonder whether the problem might not be solved by allowing a period of remand for a further 28 days for assessment or something of that nature. However, I shall think very carefully about what the noble Lord has said and possibly refer to the matter at a later stage. I beg leave to withdraw the amendment.

moved Amendment No. 56A:

Page 17, line 34, at end insert—

(" () An accused person remanded to a hospital by a Crown Court or magistrates' court for a report on his mental condition shall be entitled to obtain his own report in addition to that made for the court from a doctor chosen by him and to apply to the court on the basis of it for his remand to be ended.").

May I ask the noble Baroness, before my noble friend replies, how she would interpret this? I can foresee, speaking as a lay magistrate, that an accused's own doctor could give an unfavourable report, particularly in the case of a serious crime, which would place the magistrates in an extreme dilemma. Would she perhaps like to comment on that before the Minister replies?

Obviously there is a risk that the patient's own doctor will give an unfavourable report, but if that is so I should think it is likely in those conditions that the hospital authorities would also give an unfavourable report and therefore it would not necessarily create a problem for the magistrates.

The noble Baroness, Lady Robson, said in moving this amendment that this was a right which the accused person should have. May I, first, say that I agree with the noble Baroness and I believe that that is the situation. It is my understanding that the existing law is already sufficient for an additional report to be prepared by a doctor not connected with the hospital. So far as I know, there is nothing to prevent a person who is detained in hospital on remand from obtaining a report on his or her mental condition from any doctor who can be asked to prepare such a report. Equally, there is nothing to prevent him or her from using the information in or the evidence of such a report, on the grounds of a request for the remand not to be renewed. These are rights and they exist.

However, I do not think that that is the whole story. Indeed, if it were the whole story I think that the noble Baroness might well say that we should make this explicit and put a declaration into the legislation. There are two further main points. In the terms in which the amendment is drafted, it appears that it contemplates that a remanded person in possession of a private report may make application in the middle of a period of remand for the remand to be ended, on the basis of that report, even before the court has received the report which it has itself requested.

It may be that the intention of the noble Baroness is to deal with a situation in which the appointed doctor has been slow to supply the report as requested. However, I do not think that such a delay is likely to be a common occurrence. To be realistic, no doctor who is responsible for making a report to a court is likely to delay in doing so, and the doctor will not only wish to carry out his legal obligation, but also to get the bed in the hospital vacant for another case.

But here we come, secondly, to the problem on which my noble friend Lady Trumpington has put her finger. I think that the Government would find great difficulty in accepting a provision which required a court to consider ending a remand made under Clause 27, before it had considered the report which the court itself had requested. It seems to us perfectly right and proper that a court, when considering whether or not to make a hospital order in a particular case, should have regard not only to the report prepared under Clause 27—that is to say, the report which the court itself has asked for—but also to any report which is prepared independently for the accused person and which is envisaged in the amendment. However, we do not think that it would be right or proper that a court, which had decided on a period of remand in order to get a report prepared by a particular doctor, should be required to consider a completely different report before the appointed doctor had completed his assessment, or before the period allowed for him to do so had expired. As it appears that the proposed amendment would have this effect, I do not think that, as it stands, it would be acceptable to the Government.

May I ask for a little clarification on this? Am I right in thinking that, even without this amendment, there would be nothing to prevent a patient from saying that he wanted to get a letter from his own doctor, or from presenting a letter about his history, and that that would obviously be taken into consideration? Am I right in thinking that there is nothing to prevent a patient from making such an application?

I entirely agree with what the noble Baroness, Lady Jeger, has said. That is the Government's understanding.

I must thank the noble Lord very much for his reply and for explaining the law as it stands today. I knew, of course, that any patient was entitled to get his own doctor and his own medical report. What I was trying to prevent was exactly the same as the noble Lord, Lord Kilmarnock, was attempting in his amendment; that is, an extension of the 28 days up to 12 weeks. It was my intention, by this amendment, to allow a patient to apply to the court if the first 28 days had passed, and he was being remanded for a second period of 28 days, to go back to the court with his own doctor's report. Having listened very carefully to what the noble Lord has said, I realise that this would create difficulties, so I should like to read very carefully what the noble Lord has said and think about how to deal with it at a later stage. I beg leave to withdraw the amendment.

I should like to ask the Minister one question on subsection (2)(a). Can we assume that the words "or otherwise dealt with" do not include deferment of sentence? If so, perhaps he could make this a little clearer.

I must look at what my noble friend has asked me. If I feel that we can improve the wording, I will certainly do my best to respond to my noble friend.

moved Amendment No. 57:

Page 18, line 10, leave out ("handicap") and insert ("impairment").

moved Amendment No. 58:

Page 18, line 43, leave out from ("days") to ("; and") in line 44.

I have taken on board what the noble Lord said, finally, about legal representation and, if I may, I should like to look at that. If I may say so with respect, the difficulty about this amendment is that it knocks out not only the remand period of 28 days, but the total remand for 12 weeks in all. I must say that that surprised me and those who were advising me, because we thought that that ran counter to what the noble Lord was intending to do. So if, on his side, the noble Lord would care to look at the amendment, I, on my side, could look at the point which he made about legal representation, and I think that I ought to include some mention of this amendment in the letter which I have been asked to send to the noble Lord.

I am most grateful to the noble Lord for pointing out where, in his view, this amendment is technically defective. I am equally grateful for his offer to look at the proposal in the last part of my remarks. On those grounds, I beg leave to withdraw the amendment.

moved Amendments Nos. 59 and 60:

Page 19, line 18, leave out ("handicap") and insert ("impairment").

Page 19,line 19, leave out ("handicap") and insert ("impairment ").

moved Amendment No. 61:

After Clause 30 insert the following new clause:

Before the noble Lord does that, if all that the noble Lord wants—and I hope his noble friend will know whether or not this is all he wants—is an assurance that the Government do not intend that there should be such a transfer of ownership, I am quite prepared to give that assurance now so as to save time at a later stage.

I hope that the noble Lord, Lord Wallace of Coslany, the noble Lord, Lord Elystan-Morgan, and all other noble Lords will refrain from putting this idea before the House on any future occasion. I remember so well, and I expect many noble Lords do, that about 30 years ago it was considered by all parties to be an enlightened move to abolish the so-called criminal lunatic asylums and to have those unfortunate people, whether or not they had been before the courts, who were difficult in one way or another, taken out of the hands of the Home Office, a department in which I served with interest for a great many years and which I admire greatly. But health matters are not their scene. It would be a terribly retrograde step if we were to try to put back the clock and go through all that again.

I would only add that, in addition to those unfortunate people with disordered minds who have been before the courts, in the special hospitals to which the new clause refers there are a great many other patients who have not been before the courts. I do not know of a particular case myself but I have heard of cases where the parents of mentally disordered people are very happy about their children being in special hospitals. It so happens that they have settled down there. As I understand the position, if these hospitals were to be given back to the Home Office they would have to be confined to the treatment of people who have been before the courts. Many other people would therefore be taken away from them. I hope we do not hear any more about this amendment.

I support my noble friend Lord Renton. I remember only too well how warmly it was received by all parties in both Houses when we took out of the criminal scene those who were mentally sick, whom it was felt would be far better dealt with by a medical process under the aegis of the Ministry of Health. I know of extremely violent patients who have not appeared before a criminal court but who unhappily are not capable of being dealt with, for their own and other patients' safety, in general mental hospitals. Quite a number of them have had to be referred to Rampton or to Broadmoor. It would be putting back the clock if we were to take these people out of mental hospitals under the aegis of the Ministry of Health and put them back into the criminal scene of the prison service. I, like my noble friend, hope that we do not hear any more about this amendment.

I am staggered. This is my noble friend's amendment. I am an innocent. I do not even pretend to be a barrack room lawyer. The Government have stated their position. I hesitate to indicate my noble friend's position because he is not here. He is involved in criminal proceedings and—

As counsel.

Yes. I could call on various noble Lords sitting on this Bench but I am not going to waste the time of the Committee.

If my noble friend will forgive me, I merely corrected the impression he might have given that my noble friend Lord Elystan-Morgan is in the dock of a criminal court rather than acting as counsel.

I think I put that right. In spite of what the noble Lord has said about the Government's attitude and, with all due deference to what the noble Lord, Lord Renton, and my old respected opponent Lady Hornsby-Smith have said, I shall at this stage withdraw the amendment. Possibly my noble friend—and upon his head be it—will bring it back again at Report.

moved Amendments Nos. 62, 63 and 64:

Page 23, line 33, leave out ("handicap") and insert ("impairment").

Page 23,line 34, leave out ("handicap") and insert ("impairment").

Page 24, line 7, leave out ("handicap") and insert ("impairment").

moved Amendment No. 65:

Page 24, leave out lines 11 and 12, and insert—

("(1B) (a) A direction that a patient be discharged may direct his discharge on a future date specified in the direction. (b) The direction that a patient be discharged may include a requirement that the patient be subject to supervision by an officer of a local authority social services department, or by some other suitable person for the duration of the order, after which renewal of the order shall be considered in the usual way.").

I support my noble friend Lady Faithfull. As chairman of the 1,268 leagues of hospital friends, some of whom are connected with psychiatric hospitals, I know that when some patients are discharged they are completely lost. We in our organisation try to prevent that, by putting them in half-way houses which we rent at a peppercorn rent from the local authorities who are sending their patients to the particular hospitals. A great deal of work is done by the voluntary services, but I would support entirely what my noble friend has said, because a statutory authority is perhaps more able, in some cases anyway, to help some patients, who have been in hospital for a long time and who have completely lost touch with the outside world. It is the health and security of knowing that there is somebody in the statutory services who will help them that I believe is very important. I should like to support the amendment.

I take it that the word "supervision", which in this context usually means a probation service, explicitly does not apply to the probation service here. It is important that we should not land this kind of thing on the probation service without saying so and without demanding further resources for them, because otherwise they would not be able to do it. I want confirmation, but I believe I am right in thinking that that is excluded in the terms of the amendment.

I should like to support the amendment which has been moved by the noble Baroness, Lady Faithfull. As chairman of a social work committee for many years, I had some experience of finding myself with people who turned up either homeless or not knowing what to do, or who had no employment and no one to back them up in any way. The social workers had to look after them or did look after them if they applied in any way, but it would have been very much easier if this had been an obligation which the social service department in a county or city would be able to cope with. I believe that this is an excellent amendment and hope that the Government will accept it.

I should like, if I may, just to answer the noble Lord, Lord Donaldson of Kingsbridge; I must confess that I had not intended the word "supervision" in this context to apply to probation.

I have listened most carefully to the amendment which has been proposed by my noble friend Lady Faithfull, but there are difficulties here. Proposals about supervision in the community, referred to by the noble Lord, Lord Donaldson of Kingsbridge, were discussed in the 1978 White Paper. It was argued then, and I will argue now, that there would be considerable difficulties in the operation of a direction of this kind in the amendment. Here the fundamental point is that, although it is a matter of principle, what we are discussing would be the creation of a new power. This is quite fundamental to the argument. It is a new compulsory power and in the Bill we are trying to move in almost the opposite direction by adding new safeguards on the way in which existing powers are being operated.

It would be a significant step to introduce an entirely new power, as this amendment suggests. The net effect would probably be that more people in total would be subject to some kind of compulsory power, and this is not our objective. I must respectfully point out to my noble friend that there would be a considerable practical difficulty in operating a power to direct discharged patients to be subject to supervision by a social services department. If one examines my noble friend's amendment, one reads that it is a permissive power and this is quite understood. She commented upon the fact that it could be an officer of a local authority social services department or, as she says in her amendment, "by some other suitable person".

My noble friend Lady Faithfull referred to the after-care services, and also to the Simon Community, the Salvation Army and the Church Army. She had the support of my noble friends Lady McLeod of Borve and Lady Elliot of Harwood in this regard. But the problem is more difficult than that, because, for example, what sanctions would be applied if a patient failed to comply with the situation? Suppose the patient's mental disorder made it difficult for him to understand the purpose of the supervision. There is the problem that the introduction of such powers, would impose a substantial extra burden upon local authority social services departments. The use of the powers would depend upon sufficient social services staff being available and suitably trained to take on these extra responsibilities. I am aware that there is an optional part of the amendment, suggesting that "some other suitable person "should be responsible, but there is a fundamental difficulty, and in view of the difficulties which I have outlined and the undesirability in principle of seeking to introduce a new power which would bring more people under compulsory powers, I am afraid that I am not able to accept this amendment. I must stress, though, that I wholly commend the work of the social services departments and all the voluntary services and agencies to which speakers have referred. But it would be very difficult for the social services departments to help detained patients to make the transition from attention in hospital to life in the community, which they do not have recourse to without compulsory powers. I hope that the noble Baroness will withdraw her amendment.

I did speak on this matter at Second Reading and I believe that it is very important. I hope that, if the noble Baroness, Lady Faithfull, withdraws her amendment now, she will bring it back again at Report stage. At the moment, psychiatrists sometimes have two choices only: whether a patient shall stay in hospital or shall go out. They would very much like to recommend that the patient goes out, with support, into the community. They know perfectly well that a patient cannot go out into the community and survive without support. During the course of this Bill, we have heard that there are to be social workers trained in mental health work. Therefore, I believe that this is an excellent amendment and I hope that the noble Baroness will pursue it. This is the whole point of the Bill; people with mental problems are supposed to be going out into the community, and I hope that the Government will look at this again.

I believe that the noble Baroness, Lady Masham of Ilton, is perfectly right. This seems to me to be a very important point indeed. I believe that there has been some confusion in the Government's mind between doing something as a desirable accompaniment to an Act, and insisting on it. It seems to me that what the noble Lord is saying is that, where the mental health tribunal considers that the patient needs a bit of looking after, it cannot order a discharge without making some kind of recommendation that the patient should be looked after. I do not believe that the noble Baroness who proposed the amendment would insist on this being compulsory. I do not believe that that was her intention, and it need not be.

The Government ought to look at this again, because it seems to me absolutely essential that the mental health tribunal should be able to say, "This chap is really not too bad and is really no danger to the public, and, so long as somebody can look after him in some way or another, we will let him go back into the community, where he will do much better than he will in hospital." I believe that that is the noble Baroness's intention. I do not believe she has got it quite right because "supervision" is probably the wrong word; it has a sort of technical meaning. I should like the Government to take this away and look at it, because, as the noble Baroness, Lady Masham of Ilion, has just said, this is very important.

I should like to support this idea strongly. When a patient has been in hospital for a very long time, he needs education before he is let out. Patients need to be educated in regard to money, cooking and looking after themselves physically. A lot of patients cannot cope unless they take their drugs continually. I know of a hospital in the Plymouth area where, when patients come out, they can go to centres and can be seen to take their drugs regularly. This probably keeps them adequately fit to be with the general public in the future. However it is done, it would I think be very unwise to let a lot of people out of hospital without any support at all. They should have very good training. Those in the hospital in which I am interested get very good training before they leave. Some go out and work and come back to the hospital at night, and there they are getting adequate supervision and help. Some of them have been a great many years in hospital and the strain of going out into the ordinary world, going on the bus and so on, is too much for them unless they get guidance and help. So I hope that in some way this arrangement can be introduced, so that patients are not simply thrown out into a new world without any support and asked to stand on their own feet.

I would like to support the amendment from these Benches. As I indicated at Second Reading, we look forward to a number of patients being discharged under this new Act. This will give rise to quite a number of social problems, not only concerning people to look after the patients but also of accommodation. I cited a case in Norwich where there were houses, which had been altered with some help from the local authority and voluntary organisations, to provide accommodation, with a former nurse to look after them. This is the ideal situation. I am sure there will be problems unless the spirit of this amendment is accepted, and I would support the amendment.

It would be churlish of me if, on behalf of the Government, I did not listen to my four noble friends behind me who have pleaded for particular reconsideration of this field. I listened most carefully to what the noble Lord, Lord Donaldson, said. We shall, of course, be coming to mental health review tribunals in later amendments. What the noble Lord said is of considerable importance. In this particular set of circumstances, while I think all those who have spoken in support of this amendment recognise the difficulties, I think there are grounds for consideration of the existing position. I am afraid I cannot offer anything more than a proposal that we meet between now and Report. I hope that may be sufficient inducement to my noble friend Lady Faithfull to feel that she may withdraw the amendment at this stage.

I understand my noble friend's problem with regard to the legal position, and I do realise that this makes for difficulties. He spoke about not wanting the Bill to enforce further restrictions. This amendment deals much more with providing the quality of freedom for patients who are discharged from hospital. Many of us who have worked with patients in the community have done so on a voluntary basis, and many social service departments and many voluntary organisations are doing this at the moment.

I take the point made by the noble Lord, Lord Donaldson, that perhaps the word "supervision" was an unfortunate word. I will certainly think about that. In the light of what the Minister has said, I will consider the matter and read Hansard, and with his very kind offer of discussions with him before Report I beg leave to withdraw the amendment at this stage.

moved Amendment No. 66:

Page 24, line 12, at end insert—

("() In section 123(2)(b) of the principal Act (discharge of patient subject to guardianship) for the words "the interests of the patient" there shall be substituted the words "the interests of the welfare of the patient".").

moved Amendment No. 66A:

I sympathise with the intentions of the noble Lord, Lord Kilmarnock, in moving this amendment but I fear that in its present form I cannot accept it. We listened with interest to the fact that he had taken very careful legal advice upon the background to the amendment, but I fear that the final part of the amendment is defective, in assuming, wrongly, that detention under the Mental Health Act 1959 is for a fixed period. Detention is, of course, renewable at intervals which are being shortened under the provisions of the Bill we are now debating.

Experience since 1959 has demonstrated that it would be helpful for mental health review tribunals to have a wider range of options open to them in considering a case and not to be confined to directing discharge or making no direction at all. Our Bill already provides in Clause 34(3) for the tribunal to direct delayed discharge and the Government intend to provide for other possibilities also, but these cannot be provided in the way envisaged in this amendment.

This question was discussed in the previous Government's 1978 White Paper (paragraph 6.5), and in the discussion document published at the same time by the Lord Chancellor's Committee on Mental Health Review Tribunal Procedures (paragraphs 3.5 and 3.6) the discussion recognised that where the tribunal took the view that transfer from one hospital to another, for example, was the best outcome for the patient, this would have to be a matter for recommendation rather than direction. The appropriate hospital might be quite unable to accommodate the patient at once so that the tribunal's direction could not immediately be implemented.

A direction for leave of absence subject to certain conditions would have similar difficulties. A patient who is on leave of absence remains the responsibility of the hospital where he is liable to be detained. The hospital therefore has to be satisfied that arrangements for his leave of absence, and any conditions attached to it, are satisfactory. It is not practicable, therefore, to make these matters the subject of directions. But it is certainly our intention to provide in revising the rules made by my noble and learned friend the Lord Chancellor for the procedure of mental health review tribunals—under Section 124 amended by Clause 34(4)—that tribunals may recommend leave of absence and transfer to another hospital.

The Committee may say that recommendations are all very well, but recommendations are not always implemented, so that the tribunal's wishes may not be put into effect. But we intend to provide for this eventuality also by setting down in the rules that if the tribunal's recommendations are not implemented within a certain period—say three months—then the tribunal should reconvene to consider why this is so and whether another course of action now seems preferable.

I have left to the end paragraph (b) of the first part of the noble Lord's amendment where it says:

"that he be discharged upon such condition or conditions as the tribunal shall specify;"

because this raises separate issues. There is presently no power to direct or recommend conditional discharge except for restricted patients. Nor do I think that any such power is necessary. We have the leave of absence provision in Section 39 of the Act. We also have provision for supervision in the community in the powers of guardianship contained in Sections 33 and 34 of the Act, as amended by Clause 8 of the Bill. It is only in those special cases where a patient is subject to restrictions on his discharge that conditional discharge may be necessary.

As regards conditional discharge for restricted patients, I am pleased to say that the intentions of the noble Lord, Lord Kilmarnock, have already been met in the amendment moved by my noble friend Lord Belstead earlier today. Paragraph 5 of the new schedule introduced in that amendment provides for the mental health review tribunal to discharge a restricted patient subject to conditions. Paragraph 7 of that new schedule requires any conditionally discharged patient who is recalled to hospital to be referred within one month of his return to a mental health review tribunal.

I apologise for the length of this reply but I hope, in view of the particular care that the noble Lord, Lord Kilmarnock, has taken in drafting the amendment, that he will find that a full reply is satisfactory. I am glad to have had the opportunity to make the Government's intentions clear on this matter, and in view of the assurances given I hope that the noble Lord may feel able to withdraw the amendment.

There was no need for the noble Lord, Lord Sandys, to apologise for the length of his reply; I am extremely grateful for it. I am also glad that the Government recognise the desirability of a wider range of options becoming open to the tribunals. I listened with care to the noble Lord's remarks about the powers of granting leave of absence or recommending leave of absence, and also to his remarks about the projected revisions of the rules of procedure which may, indeed, also help in introducing greater flexibility into tribunal proceedings.

Towards the end of his speech the noble Lord, Lord Sandys, referred to the right of conditional discharge for restricted patients which is contained in the new schedule. However, it applies to restricted patients only. The difference being introduced as regards the present law is that conditional discharge will not require the approval of the Home Secretary: the tribunal will be able to grant it on its own, under its own powers. That is where the real difference lies, as I understand it, in the new schedule.

Having made those remarks I shall read with the greatest care what the noble Lord, Lord Sandys, has said, and at this stage I beg leave to withdraw the amendment.

moved Amendment No. 67:

Page 24, line 18, at end insert—

(" () An applicant shall be entitled to be represented before a Mental Health Review Tribunal by counsel or a solicitor and the costs of such representation (and, in the case of representation by counsel, the cost of instructing a solicitor also) shall be borne by legal aid funds in accordance with the provisions of the Legal Aid Act 1974.").

As there is another amendment on legal aid, to which I have put my name because I was going to table an amendment on legal aid, and I really do not mind which one I support—whichever the Government think is best—I shall be very happy to speak to this amendment.

The noble Lord, Lord Belstead, has told your Lordships today that mental health review tribunals will do much of the work that Crown courts have been doing. Also the noble Lord was not clear about what help legal panels can give to individual patients. It seems necessary that, where people are pleading for their freedom, they should be legally represented. Patients do not have access to their medical records; I believe that legal representatives have this facility. Against professionals, do your Lordships think that a patient stands a chance trying to represent himself? He may be under the influence of drugs or may be unable to express himself clearly. If a patient is rich, he will be able to afford to have legal representation; if he cannot afford this, it seems that he may or may not be able to have legal help—he has to rely on charity. Legal aid seems to be a safeguard, and I support this amendment.

Like the noble Baroness, Lady Masham, I too support this amendment and, also like her, I accept, of course, that Amendment No. 67 in fact covers very much the same point as that covered by the later amendment, Amendment No. 70, standing in the names of the noble Baroness and the noble Lord, Lord Kilmarnock, and my noble friend Lord Hooson.

The noble Baroness said that she did not greatly care which of these amendments she supported. I do not think that I would be quite so amenable. Frankly, I think that, if anything, Amendment No. 70 is marginally the better of the two, but I certainly think that the principle has to be accepted. I do not know whether it is appropriate that we should debate them both at the same time, but, when the Minister replies, perhaps he will direct his reply to the rather different drafting points and the different way of dealing with the same matter in the other amendment. I do not know whether my noble friend will say anything about this; I think that the noble Lord, Lord Kilmarnock, will say something about Amendment No. 70, in which case there will be a reply to that. However, I think that your Lordships' Committee ought to be able to hear the differential argument, as it were, between the two points when we come to a conclusion. I should not have thought that there was any difference at all among noble Lords on this side of the Committee, wherever they sit, about the need for legal aid for these purposes.

To provide rights for people to go to appeal before tribunals and so on is very much an empty exercise unless, at the same time, one provides them with the kind of assistance which they undoubtedly need if they are to extract the full value from that process. I shall say no more at the moment, but I think I have indicated that, although we are entirely in support of the amendment of the noble Lord, Lord Wallace, perhaps we are also in support of Amendment No. 70, which, of the two, we might marginally prefer.

I have considerable sympathy with this amendment and with the arguments put forward by noble Lords opposite and by the noble Baroness. I think that the one point which distinguishes this from all other tribunals—I understand the reluctance of the Government and of the noble and learned Lord the Lord Chancellor to extend legal assistance to many tribunals—is that this is the only tribunal which decides on the liberty of the subject. I believe that that is a distinction which justifies exceptional treatment in this case, and I support the amendment.

Amendment No. 71 also deals with the same subject. From a slightly different angle I also support the amendment moved by the noble Lord, Lord Wallace, and that spoken to by the noble Lord, Lord Winstanley. From working in mental hospitals, my experience is that it is quite right and proper that these cases should come before mental health tribunals and that there should be legal representation. But the patient needs to have help to get the legal representation. Therefore, in my amendment there is a recommendation that:

"the relevant social services authority should be under a duty to furnish him with independent advice and appropriate assistance before the hearing of the Mental Health Review Tribunal".

Accordingly, this brings in another point, which is that help is needed, not on the part of the social worker, but on the part of the social worker helping the patient to know how to get legal help.

I should like to clarify one point. I think that I may have missed a point in the earlier debate, but I am still not clear about the payment of legal aid. I should like to be quite clear about this because, in some cases, with a different law altogether, I have raised money for patients to have legal aid, but under this Bill I should like to know from where payment for the legal aid is to come.

We seem to be speaking not to two amendments only but possibly to three. At this stage, I should simply like to say, as the amendment which stands in my name and those of the noble Lord, Lord Hooson, and the noble Baroness, Lady Masham, has been mentioned, that my inclination is to support the amendment of the noble Lord, Lord Wallace, if the Government are disposed to accept it or if, indeed, the noble Lord wishes to press it to a Division.

At the same time I should like to say that I consider that our amendment—and I think that the noble Lord, Lord Winstanley, thought this as well—is marginally better, in that the second part of it ensures that patients will be able to be represented before mental health review tribunals; that is to say, subsection (2) of our amendment would prevent legal aid authorities from declining to grant legal aid on the grounds that a patient appears to be unlikely to succeed. That is the additional safeguard which exists in Amendment No. 70 and which does not exist in the amendment which has just been moved. My inclination is, if the present amendment is moved and either accepted or carried, that I would probably then at Report stage come back with a further amendment to introduce the idea contained in our subsection (2)

I will not go on much longer because the noble Lord, Lord Wallace of Coslany, covered the whole ground thoroughly. Although he mentioned the Lord Chancellor's Advisory Committee on Legal Aid, who considered this to be a top priority, other bodies are involved. The Council on Tribunals in its 1979 report set out the criteria on which legal aid should be given and included the mental health review tribunals in a priority group. The Royal Commission on Legal Services reported in 1979 and followed the recommendation of the Council on Tribunals, and the Royal Commission on Legal Services in Scotland did the same thing.

Just to take up Lady Faithfull's point, she was worried about the money. So far as I understand it, at the present time patients, or rather their lawyers, have had to do the best they could by seeking extensions to the legal advice and assistance scheme. This scheme allowed or allows a basic £40 of legal assistance, but extensions cannot, under the relevant statutory provisions, be granted to cover representation at the hearing itself. In so far as patients have been represented it has depended on solicitors undertaking to appear at the hearing on a charitable or semi-charitable basis. Increasingly they are finding that they cannot accept this task because of the pressures on their firms and partnerships. As a result, there is a great danger that patients will go unrepresented. I think that is sufficient for the moment, and I support Lord Wallace's amendment.

May I suggest to my noble friends on the Front Bench that in principle mental patients have a much stronger case for legal aid than do many others who already get it, whether in criminal or civil cases. I say that for two simple reasons. The first is because in nearly all of the cases which would come before mental health review tribunals the patient's liberty is at stake, and the other reason is that their mental condition makes it difficult for many of them, although not all of them, to understand their rights, to understand the issues which arise, to sift the evidence being given for and against them, and still more difficult for them to argue their cases convincingly before the tribunal.

Therefore, it seems to me that a strong case for an exception has, as my noble friend Lord Boardman pointed out, been made out. As to the amendment of my noble friend Lady Faithfull, of course it would be a welcome compromise but I feel it would be just a compromise. I hope I am not asking too much of my own profession when I say that I think that they are in the best position to give the independent advice, and indeed to argue the cases convincingly in court.

Perhaps I did not make myself clear. I did not for one moment suggest that a social worker should argue the case at a tribunal. I suggested that a social worker should help the patient to obtain the legal advice required.

I am so grateful to my noble friend for making that clear. It comes to this: there is no reason why the Government should not accept both her amendment and an amendment granting legal aid. So there is no difference whatever between us. It seems to me that this is an exceptional case.

May I say one word about procedure here? May I suggest that the noble Lord the Minister gives an indication of whether he can accept either, and if so which, of these amendments, in which case we will all agree to that. If he is going to accept neither, then we wish to know which we will go for. If it is in order, I should like to suggest that the noble Lord, Lord Wallace, should speak again. We have said from this Bench and the Liberal Bench that we will support him if necessary. Would he support us if necessary?

It is not my duty to do the horse trading between the various Benches on the other side of the Committee. I am in the position of somebody who has been sitting on the side of a hill down which a snowball has been rolling, and I just wondered if I sat there long enough whether the whole of the rest of the Bill could be rolled up into one debate. However, there are strong connecting themes in the three amendments to which I now propose to speak. My noble friend Lady Faithfull—as it is a snowball it is proper, is it not, to approach first the outside which was rolled on last?—said that it was not her purpose to give the social services authority an advisory function except in the way in which a patient might get legal advice.

And aid.

And aid. I must say that that was not immediately apparent from her amendment, and I take note of that. I think I should also speak to the amendment as it appeared to me, and I think to other noble Lords. What worries me is that this would give a difficult conflict of interest to the social services. If they were involved in the legal as opposed to the aid advice, they would be involved by mental welfare officers who undertake duties under the Act in making the application for the patient to be detained in the first place, and might also be involved after the patient had been discharged in providing accommodation and other kinds of help for the patient. Therefore I think they are not the proper people to advise at this stage. I sense that noble Lords tend to agree with me.

May I now turn to the other two amendments. The purpose seems to be the same, and indeed has been acknowledged to be the same; that is, to make legal aid available to patients coming before mental health review tribunals. The first point to be made on both amendments—and it has been alluded to already by the noble Lord, Lord Kilmarnock—is that there is already power in section 7(2) of the Legal Aid Act 1974 to extend legal aid by regulation to any proceedings including mental health review tribunal proceedings. Accordingly, primary legislation, such as that represented by these amendments, to achieve that end is superfluous.

Bearing that in mind, I invite your Lordships to consider that the Government do indeed recognise the desirability in principle of extending legal aid to mental health review tribunals and, as soon as money and priorities allow, the Government will do this. The cost of such an extension and the availability of funds are kept under constant review. However, any useful estimate of the cost of the present amendment would rely on complex and speculative assumptions both about the number of patients who are likely to exercise the new rights of access to the tribunal conferred by the Bill and the number who would apply and be granted legal aid. We are at present seeking to estimate that cost.

Making legal aid available to patients may involve them in sometimes lengthy and complex procedures to assess resources. It would be both less burdensome to them and administratively cheaper to the legal aid authorities if legal representation for patients were made available under the "assistance by way of representation" scheme provided for in Section 2A of the Legal Aid Act 1974. Under that scheme, the patients' solicitor, rather than the Department of Health and Social Security, would carry out a simplified means test and the Legal Aid Committee or indeed, the tribunal itself, would approve extending the patient's green form advice and assistance to cover legal representation before the tribunals. Like legal aid, assistance by way of representation may be extended to any proceedings by regulations made by the Lord Chancellor. This is another aspect of legal representation before mental health review tribunals which the Government have now under active consideration. Though it is too early to say what conclusion will be reached, the amendment would pre-empt a proper consideration of the matter.

Turning to the second part of Lord Kilmarnock's amendment, I should say at this stage that it is undesirable and indeed unnecessary to abrogate the test of reasonableness in Section 7(5) of the Legal Aid Act 1974 in the case of mental health review tribunals only. The purpose and effect of Section 7(5) is to put a legally aided litigant in the same position as a person who can afford to pay his own legal costs by ensuring that legal aid is available to finance a case only in circumstances where a reasonable person who had to meet his own legal cost would pursue the proceedings. Looked at in that light, the requirements of Section 7(5) cannot be objectionable in principle even in relation to mental health review tribunal proceedings.

Further, in practice it is inconceivable that where a patient had an arguable case affecting his liberty to put before a tribunal, legal aid, or assistance by way of representation, would ever be refused on the ground that there were no reasonable grounds for the patient to be a party to the proceedings. Only in the most hopeless case where there was no argument at all would legal aid be refused and such cases would rarely if ever occur.

Exempting patients from the requirements of Section 7(5) would not only put them at an advantage over all other applicants for civil legal aid—many of whom are also concerned to enforce rights of vital personal importance—but would also, in the few exceptional cases where it had any effect, represent a waste of resourses. Accordingly, the test would unnecessarily increase the cost of extending legal aid or assistance by way of representation to mental health review tribunals and, in the present financial circumstances, make such an extension less likely to be achieved.

I hope noble Lords who have spoken in this debate will be persuaded that my noble and learned friend the Lord Chancellor has this matter in hand and will withdraw the amendment and that the noble Lord, Lord Kilmarnock, will be content not to move Amendment No. 70. As your Lordships will be aware, I have carefully stuck to my brief, but the sum of the matter is that we are seized, as are your Lordships, of the needs of the patients to whom we refer; that we recognise the wish your Lordships have to see them embraced by the scheme; that we are pursuing the exercise, rather more complex than one might expect, of discovering what exactly the costs of implementing such a scheme would be; that we would propose to implement it through the channels I have already described; that these do not require legislation; and that they are more appropriate than those in the amendment. I hope the Committee will accept that in good faith and not press the amendment.

I regard the Minister's reply as extremely astounding and confusing and I hope that when he reads it tomorrow in Hansard he at least will be able to understand what he said. Early in his reply he implied that provisions already existed to grant legal aid, but he went on to say that it was not possible to do that because the money was not there. We have heard that in regard to the Children Act since 1975; year after year we have been told that money is not available to implement the legal aid section for parents. The noble Lord is now saying that much the same will apply to this Bill because the money is not available.

Either there is or there is not on the statute book at present provision to enable a person to be represented at a mental health review tribunal. If there is not, we must make it clear that it should be done before all else. I have had some experience as a member of a mental health review tribunal. Although a number of your Lordships may have had such experience, nobody has mentioned that so far. There is no situation of which I know that makes it essential in many instances for the person to be represented. The mental health review tribunal cannot take up the case, as it were, for the applicant. In the ordinary magistrates' court, if the person does not have the good fortune to be legally represented, for whatever reason, either the stipendiary magistrate or the bench of magistrates will watch the interests of that person. That is not possible with a mental health review tribunal.

I say with great respect that, while the chairman of the tribunal may be a lawyer, the mental health review tribunal is governed very much by the report of the medical side. And we are expecting a person who perhaps has had quite a long period in a mental hospital to have sufficient competence, experience and knowledge to conduct his own affairs. That is quite unreasonable. It cannot be expected and, as a number of noble Lords have pointed out, including the noble Baroness, Lady Faithfull, and the noble Lord, Lord Renton, here is a person fighting—I use the word in a general sense—for his liberty; there is nothing more important than helping a person who wants his liberty to put forward the best possible case. There is nothing comparable with that.

The Minister cannot expect the Committee simply to accept the reply he gave. I hope even now that he will agree, notwithstanding his reply, to take the matter back and look at it afresh. I have not consulted my noble friends on this matter, but I should like to know whether there is authority anywhere on the statute book to enable a person appearing before a mental health review tribunal to have legal aid. If not, the Government should give way on this, as it is a matter of supreme importance to the person wanting his freedom; he should have an opportunity of being properly represented so that the full facts may be put to the tribunal.

So far as I recollect, there is at present no right to obtain legal aid for representation before a mental health tribunal. The discussion has become a little confused, partly because of the galloping rate at which the noble Lord, Lord Elton, delivered his advice to us, if he does not mind my saying so. What exists at present is what the lawyers know as the green form scheme whereby a solicitor can, for a small fee, advise an applicant as to his rights and the possibilities and can do a great deal short of the all important question of actual legal representation before the tribunal. No doubt that advice is very useful so far as it goes and what has often happened, as has been pointed out, is that generous, public-spirited solicitors with a conscience have carried through what they regard as their obligations to the stage actually of appearing without fee for the applicant before the tribunal. That of course is possible.

It means that the well-off person who is now detained can appear through representation before the tribunal. We are therefore in a very unhappy situation in that on the important question of the liberty of the subject, the financial means of the person concerned is a critical matter. No system of justice accepts that without at least protest and, one would hope, without remedying the situation.

I confess that I am in some slight embarrassment personally in this matter in that I was Lord Chancellor at the time when the power to make the necessary regulation was available, and we did not then feel that the situation, in the face of other demands and priorities, provided or justified it. There have been a number of changes since then and I think the awareness of the importance of the patient in sintitutions has become more acute and that there is a greater sense that they have tended to be a somewhat abandoned section of the community. There is now a greater awareness than there has ever been of the need for positive assistance.

It is quite true that there is power by regulation, which should avoid legislation, to do what the two amendments, Amendments Nos. 67 and 70, ask for. First, may I say this? It seems to me that, if Amendment No. 67 or Amendment No. 70 were carried, that would at the very least certainly strengthen the hand of the Lord Chancellor in putting forward the need for legal aid to be extended. It would give him power with the Treasury. The Treasury is the final deciding factor in this matter, and in the struggle for priorities it has the last word.

As I understand it, at the moment legal aid is available in regard to only two tribunals. One of them is the Lands Tribunal, and I have forgotten what the other one is, though I do not think that it is a particularly significant tribunal; but otherwise legal aid does not existing in relation to tribunals.

I submit that it has been shown from all sides that the mood of the Committee is that the time has come for advance in this field for the patient held in a hospital seeking his liberty in the appropriate case. Therefore, I greatly hope that the Minister will at any rate go much further than he has already gone. He has said that the matter is being studied and is under review; it has been studied and been under review for years, and nothing has happened. Perhaps I and the previous Administration have as much responsibility as anyone else, but the situation ought to be remedied.

As I understand it, the Minister is not in a position to give an assurance, an undertaking, to the Committee that this will be done. Least of all is he in a position to give an assurance as to when it would be done, if it is to be done, and, in the circumstances, I think that on this occasion it would be proper for the Committee to assert its strong feeling about the proposal being put into effect in the public interest, in the interests of the liberty of the subject, by supporting one or other of the amendments.

I do not know that there is much to choose in terms of drafting as between Amendments Nos. 67 and 70. Amendment No. 67 has the benefit of clarity, as opposed to legislation by reference, and it is not for any party reason that I cleave to it. As the noble Lord, Lord Kilmarnock, has said, it would seem that the second part of his amendment concerns a slightly different point that no doubt he could deal with at a later stage in the proceedings.

I very much support the plea made by the noble and learned Lord, Lord Elywn-Jones, that the Committee should declare itself on what is a vital matter of principle. The noble and learned Lord, Lord Elwyn-Jones, referred to the fact that today there is a heightened appreciation of the position of a mental patient, and it seems to me that that is because we are debating in depth the welfare of mental patients generally. It will probably be another 20 or 30 years before your Lordships again deal with such a matter.

We should bear in mind in particular the experience of debates on the Children Act. It was claimed that the matter in question was of top priority but that the money was not available. It is an old tale, we have heard it before. But your Lordships' Committee should declare itself in principle on the matter.

I believe that the other tribunal that the noble and learned Lord, Lord Elwyn-Jones, was thinking of was the Employment Tribunal, where legal aid is available. But surely it is more important to have legal aid for a mental patient, who, of all people, is the least able to put forward his own viewpoint, who is least articulate, who is at a singular disadvantage in dealing with the doctor who is supervising him from day to day and who is giving evidence before the tribunal. The mental patient of all people needs help to put over his case, and in many ways he is the least able to take the fullest advantage of advice given to him by solicitors, since he is not perhaps best able to assimilate the advice and to use it to best effect. He is at a psychological disadvantage.

I believe that one of the most important occurences in today's debate was when the noble Lord, Lord Belstead, inadvertently thought that a mental patient was entitled to legal aid before a tribunal. That was, if I may say so, the reaction of a civilised man, and as a civilised community we are lacking in not providing legal aid. We should certainly divide on the amendments.

I think that it would help us to judge the Government's intentions and our own responsibilities if my noble friend Lord Elton could give us some idea of when the review of the likely cost will be completed. If it is to be completed while the Bill is still before your Lordships' House, we could quite safely leave the matter today, and I very much hope that it will be completed within that time. Certainly it would be most unfortunate if it is not completed before the Bill receives Royal Assent, which will be several months hence. If we could be told about that, it would at any rate help us to judge the matter more efficiently.

Since the amendment in my name has also been mentoned during the course of the debate, I should like to repeat that I am and my friends are disposed to accept the advice of the noble and learned Lord, Lord Elwyn-Jones, and to offer our support to the noble Lord, Lord Wallace of Coslany. The matter contained in the second part of my proposed amendment is indeed an additional safeguard for the mental patient before a tribunal, and it is a point that I could consider and possibly bring in at a later stage of the Bill.

On the matter of cost, which has come up—though no figures have yet been mentioned—it is extremely difficult to guess at the cost because of the problem of assessing the likely take-up, but I am reliably informed by all the people who have considered the matter that it is not expected to he very great. No doubt the noble and learned Lord will correct me if I am wrong, but apparently the legal aid budget runs at about £150 million a year at the moment. We are concerned with the marginal extra cost of representation at tribunal hearings, and the White Paper estimated the number of hearings at about 4,500 a year. One calculation given to me of the likely cost is in the region of £250,000 a year. That is less than one quarter of 1 per cent. of the present total legal aid budget, and, even if we were to suppose that that was an under-estimate and that the figure was £500,000 that would represent 0·33 per cent. of the total legal aid budget. So, I would strongly suggest to the Committee that this should not he an impediment, and, if the noble Lord, Lord Wallace, wishes to press his amendment, we shall be happy to support it.

Noble Lords have spoken with obvious feeling, much of which I share, and with a great deal of knowledge beyond what I have, on a very important issue. The noble and learned Lord, Lord Elwyn-Jones, in two successive breaths advised me to go slower and to go further. I shall try to go slower. I am not in a position to go much further. Perhaps I ought to underline how far I have gone, since no one seems to have noticed.

I have indicated that the present Government have taken an important step forward in this area, because we now accept in principle the desirability of extending legal aid to mental health review tribunals, and this has never been accepted by any previous Administration. As I explained further—the noble Lord, Lord Wells-Pestell, was in some doubt about the point, but I imagine that he has already been reassured by what his noble and learned friend has said—the power exists on the statute book to take action by regulation. The power to make the regulation exists. My noble and learned friend the Lord Chancellor is in a position to make the regulation. Of course, he cannot make the regulation until he is fully cognisant of what the detailed implications of it will be.

My noble friend Lord Renton has suggested that I might be able to tell your Lordships when this consideration would be complete. I cannot do that tonight. If your Lordships wish to ask me later in the proceedings, I shall no doubt be able to give a better answer. But I want to make it perfectly clear, first, where the Goverment's heart and intentions lie, and, secondly, that the power to do this already exists in statute. I do not think it is good law to put a duplicate power into statute; and I do not think that my noble and learned friend the Lord Chancellor is the sort of person who needs arming against the Treasury. He is a very senior and respected person. My view is that credit should be given to the Government for what they have already done to advance this cause, and that your Lordships would perhaps be well advised to allow us to proceed on the path which I have suggested.

I am very grateful indeed to all the Members of your Lordships' Committee who have taken part in this debate. If it is a collection of voices, then obviously the amendment has the support of the Committee; there is no doubt about that. The Minister has done his best to put a case. He rests on the Government's ability to make regulations. That is a possbility, but the point is that we want to establish firmly in this particular Bill an amendment which clearly indicates the rights of mental patients to receive legal aid. That is a vital principle.

I do not think I need to speak any longer on the issue; so much has been said so strongly by many other Members of your Lordships' Committee. I did not want to face a situation on this particular Bill where a Division was called for, but I have no option. I think the Committee must express its view on a vital principle.

moved Amendment No. 68:

Page 24, line 37, leave out ("48(3)") and insert ("38(2), 48(3), 52(6)").

moved Amendment No. 69:

Page 25, line 17, leave out ("those subsections") and insert ("that subsection").

moved Amendment No. 71:

After Clause 36, insert the following new clause:

Briefly I should like to say that I support the noble Baroness strongly on this. I agree with her that had the previous amendment been carried this amendment would not have been necessary. But it seems to me that, as we have not carried that amendment and as the Government's further thoughts that we heard about from the noble Lord, Lord Elton, have not yet been carried into action, this amendment becomes even more necessary. I am not sure that the noble Baroness is wise not to press it; although it would surprise me if she needed to do so because it seems to be such a reasonable, simple, logical and sensible request that I should have expected the noble Lord, in relief at not having been defeated on the earlier matter, to embrace this amendment with enthusiasm. At least, I hope so.

The noble Lord, Lord Elton, told the Committee that patients who went to a Crown court will now go before a review tribunal. Can he say how many patients this will involve and if they can choose whether they go to a Crown court or to a review tribunal; or will they be put into mental hospitals without a fair hearing in court? If so, this country will look very bad in regard to the human rights of the European Court.

It is charming to hear the noble Lord, Lord Winstanley, woo my noble friend Lady Faithfull towards what I would term an indiscretion. But I think I can persuade her that it is not necessary for her to err in this fashion. As I said before, the amendment she has tabled does not appear to me or to my advisers to achieve what it is she says it sets out to achieve. It says in the new clause that,

"where the care of a patient has been referred to a Mental Health Review Tribunal in accordance with section 35 or section 36 above, the relevant local social services authority shall be under a duty to furnish him with independent advice and appropriate assistance before the hearing of the Mental Health Review Tribunal".

The noble Baroness tells us that what she has in mind is that there should be advice as to how to get legal aid; but of course it could be legal advice as well. I would suggest that the clause that she has proposed would need to be redrafted so that it would mean with certainty what she intends it to mean.

Having said that, I should like to repeat what I said in the debate on the earlier amendment. The Government have it in mind to discover the extent of the difficulty and the way of implementing, by regulation the powers which already exist on the statute book for providing legal aid by one particular route to these people. My understanding is, first, that that is a fairly straightforward procedure so far as the beneficiary of the aid will be concerned; and, secondly, it will already be perfectly appropriate for a social worker to elucidate any difficulty which the patient may find.

We are dealing with patients who have intellectual difficulties and I accept that even what to your Lordships might seem a simple procedure may seem pretty frightening and baffling to the people concerned. That is why I listened with such sympathy to the last debate and regretted that it was brought to a Division. I accept that this is a probing amendment. I am not certain that I have answered the points which my noble friend put to me. I hope that I have done so.

In my experience—which perhaps is not universal—there are excellent welfare officers attached to the hospitals who could give advice. Would they not be the people to ask in that context?

Yes, there are social workers attached to hospitals who would, I am sure, if asked give advice. The difficulty is that not all patients ask their advice and are confused as to how to get the advice. I am in some difficulty here because if it is not absolutely certain that financial help can be given, how is a patient going to get legal representation at a mental health review tribunal? I agree with my noble friend the Minister that perhaps this amendment has not been worded as well as it might have been. But I have often had to get money from voluntary sources in order to enable somebody to appear before a tribunal or a court.

This amendment was dealing with the situation where it was thought that there should be legal support and the case put by a member of the legal profession. But I was worried about who was going to pay for that legal aid. I imagined that the social services would therefore be appealed to by the patient and they would help to obtain the necessary finance to enable the patient to appear before the tribunal with legal support. Some patients need advice before the tribunal sits as to what the tribunal means and how to get legal representation.

This has been very instructive for me. I take note of what my noble friend says: that there is difficulty in obtaining advice. On the face of it, it seems to me that a request for this information to a social worker or anybody attached to a hospital in which one of these patients might be would already be acceded to. I hear what my noble friend says, that this does not always happen. She has said that this is a probing amendment. If I can find out more about this difficulty, I will do so and be in touch with my noble friend.

As to the noble Baroness, Lady Masham, I think that she slightly misheard what I said because there is no option such as she described. The case comes before a tribunal and a Crown court is not an option. I am not quite sure how I managed to give her the impression that it was.

The noble Lord, Lord Elton, said earlier this afternoon that much of the work done by Crown courts would be carried out by review tribunals. He did speak rather fast and until I read Hansard tomorrow it is difficult to know exactly what he said. I heard something about that which worried me.

Plainly we cannot again go over the debate that we have just concluded. I will make great efforts to reduce the speed of my delivery. If Members of the Committee find that I forget this undertaking, they are very free to remind me of it. In the meantime, I think that if the noble Baroness looks at Hansard—which is accustomed to though not altogether contented with my speed of delivery—she will perhaps discover that her worry is groundless.

May I say how grateful I am to the noble Lord, Lord Winstanley, for his support. I hope he and I may present to the world the partnership between the medical profession and the social worker profession as it should exist. With the assurance of my noble friend the Minister, I beg leave to withdraw this amendment.

moved Amendment No. 72:

Before Clause 37, insert the following new clause:

I suggest we resist this amendment. In the first place, it is a little illogical without amending Clause 49(3)(e) which specifically says that Section 141 shall be retained. Sections 141, 142 and 143 of the Mental Health Act 1959—all of which are to be retained under Clause 49 of this Bill—are essentially of a parcel. Section 141 gives a certain measure of protection from civil and criminal proceedings to persons acting in good faith and with reasonable care within the terms of the 1959 Act. That is a very necessary type of safeguard for many things that public servants in carrying out the terms of this Act may have to do in relation to this particular problem area.

It covers other circumstances over and above the ones specifically mentioned by the noble Lord, Lord Wallace of Coslany. Section 141, coupled with the powers given to the Minister in Sections 142 and 143, is more than satisfactory to take care of the general position, at the same time providing reasonable safeguards for those public servants who have to do a whole range of difficult tasks, or tasks which can be difficult. I suggest to the Committee that this amendment should be resisted. In any case, without an amendment to Clause 49 it does not mean very much.

Be that as it may—and I accept what my noble friend says about the drafting technicalities so far as this Bill is concerned—I have a great deal of sympathy with the desire of the noble Lord, Lord Wallace, to have Section 141 of the 1959 Act repealed. It is a monstrosity, an anachronism; and I do not know of any other case in which in order to start civil or criminal proceedings it is necessary first to obtain the leave of the High Court. This is a strange proposition because if a judge or master of the High Court gives leave for the start of proceedings, it by-passes some of the procedures of the High Court which enable the court itself to stop proceedings which are, for example, frivolous or vexatious; it stultifies applications for security for costs which in proceedings such as this might very well sometimes be asked for, and it is not the kind of provision which should remain on the statute book. Whether it should simply be repealed and nothing put in its place is another matter. This particular amendment says simply that it shall be repealed.

Amendment No. 96, to which I assume we may refer because it is very much in point, does more than merely repeal Section 141. It says that:

"No criminal proceedings shall be brought against any person in any court in respect of any act done or purporting to be done in pursuance of the principal Act or this Act without the consent of the Director of Public Prosecutions".

That is a much more sensible and much more useful type of provision, for which there are precedents approved by Parliament. I know that what exercises the mind of my noble friend Lord Mottistone, because an exchange we had last week made it clear, is that fewer nurses and doctors should be submitted to unreasonable attempts to sue them in the courts. I think that Parliament should be very careful before we inhibit the right to sue.

I happen to be one of those who are opposed to immunities. For example, I do not think it is right—I hope it is not irrelevant for me to say so—that we should have the wide range of immunities which trade unions still enjoy. But for us to perpetuate this particular immunity could, I think, lead to injustice. Moreover, it is not necessary, and the reason I say that is that the rules of the High Court, as I mentioned earlier, have their own inherent safeguards for preventing vexatious or frivolous actions or requiring security for costs. I do not think that doctors and nurses need more protection than that. Certainly the patients in mental hospitals should not, in my opinion, any longer have their reasonable causes of action stultified by the anachronism of Section 141. Therefore, I am very sympathetic towards this amendment although I would wish it to go further, as Amendment No. 96 does.

I should like also to support this amendment. As the noble Lord, Lord Renton, has already pointed out, the section is based on the assumption that patients are vexatious litigants, and the courts in their legislative powers under the Supreme Court of Judicature (Consolidation) Act 1925 already have adequate powers to deal with vexatious litigants. There is also the point, though I am not sure that it was made by the noble Lord, Lord Wallace, that it is very unclear at the moment as to whether Section 141 applies to informal patients. It seems to me that those are two drawbacks of the existing legislation. One would have thought the Government would have taken the opportunity of this essentially reforming Bill to bring forward something to correct the position, but they have not seen fit to do so. There is also the suggestion embodied in a later amendment put down by some of my Liberal friends which might provide a way out of the difficulty. Before deciding what I should do, I should like to hear from the noble Lord, Lord Elton, whether he is at all disposed to accept the suggestion that prior application to the Director of Public Prosecutions will be a satisfactory alternative.

I have not actually been asked that in terms of an amendment and I wonder whether in fact the noble Lord, Lord Hooson, is going to speak to his amendment at this stage, in which case it would be convenient for me perhaps to hear what he has to say.

I did not intend to speak to the amendment at this stage, hoping to hear from the noble Lord what the reaction of the Government was to the proposal. If I knew what his reaction was in principle, perhaps I would then be in a better position to deal with the amendment.

I can only speak to the amendment we are discussing. The intention of Section 141 is to protect staff who were going carefully and conscientiously about their duties under the Act, often in very difficult circumstances, from the continual threat of litigation. We have to realise that for staff caring for the mentally disordered this threat can be a very real one. Patients may suffer from severe and persistent delusions which make them quite unreasonably antagonistic towards a member of the hospital staff. The problem is particularly severe in the case of detained patients. These patients arc in hospital against their will and it is likely that they will harbour resentment towards the staff whose duty it is to prevent their leaving hospital, particularly until they have had the opportunity to understand what their presence in the hospital is all about.

It is not reasonable to expect staff to work in constant fear of malicious litigation. If we ask people to do this difficult work we must provide them with some protection from the risks associated with it. I think my noble friend Lord Renton would accept that there is a need—and here we are addressing ourselves to the first part of the question—for some kind of protection. If we do not have it, it will in the end be the patients themselves who will suffer both regarding the reduction in the quality of staff who are willing to do this work and from an understandable preoccupation on the part of staff as regards protecting their legal position. You really may arrive at the position where members of staff, going about their perfectly ordinary duties in relation to patients, would find it necessary to do so continually accompanied by a witness. Therefore, I would not think that the undiluted repeal of Section 141, whatever its linkage with the other two sections to which my noble friend referred, is something to which the Committee should give its support.

I am being cunningly tempted to deploy my troops by the noble Lord, Lord Hooson, as regards the second leg of the argument which he has not actually deployed himself. I am not sure that is altogether fair. However, I would ask him to consider this. If it is agreed that protection under Section 141 is necessary, or something like it—and I think that really should be agreed—the question arises whether the form that protection takes is the most suitable. If one is to decide that question one is doing it in fact while Section 141 is in a sense sub judice because we have to await, before producing our own solution to this problem, the view which the European Commission and the Court of Human Rights, if the case is referred to that court, will express on a case that has recently come before them as to whether, and if so in what way, Section 141 is itself in breach of the European Convention on Human Rights.

For the present, our view is that Section 141 is an essential safeguard, but that it would perhaps be worth considering whether the reference to the High Court is appropriate. I can see that there may be some advantage in providing that the leave of the Director of Public Prosecutions, rather than the High Court, should be sought, before criminal proceedings may be brought. But, as I have said, I do not think the time is right for this and our view is that Section 141 is an essential safeguard. If amendments seem neces- sary, your Lordships may be sure that we shall find a vehicle to introduce them, but it would be premature to do so at this stage.

I am grateful to the noble Lord, Lord Elton, for dealing with the matter as he did. But I find that the answer he gave is very unsatisfactory, because I do not think there is justification for Section 141 of the principal Act, as it now stands. From my information, there are four or five applications made to a High Court judge in a year—that, I think, is the maximum in any one year for civil actions—and the provision in Section 141 is to ensure that no frivolous actions are brought. But if only four or five applications are made in a year by everybody detained in mental institutions in this country, that does not seem to suggest that that kind of safeguard is appropriate or necessary.

With regard to the safeguard against criminal proceedings, I am sure that the whole Committee is sensitive to the point made by the noble Lord, Lord Elton, that some kind of protection is required by those who care for and have to nurse people with degrees of mental aberration. But surely the right course here would be to ensure that no prosecution can be brought, either privately or otherwise, without the consent of the Director of Public Prosecutions. This is the essential safeguard in this country to make sure that frivolous criminal proceedings are not launched in important matters, and, bearing in mind the peculiar situation of mental patients, surely that safeguard is enough. With great respect to him, I do not think that the noble Lord, Lord Elton, while establishing that some kind of safeguard is required, has really made out a case for the maintenance of Section 141 as it now is.

If I may take the first leg of the noble Lord's argument at the start, that there are so very few cases brought to the High Court for permission to proceed, I took it that his contention was that the hurdle was too high, the sieve was too small or the intimidation was too great, that he wanted something easier and I imagined that a larger number of cases would ensue. However, be that as it may, I have said that we are prepared to look at whether this is the appropriate sieve, hurdle or disincentive, but that, in all honesty, while there is a case before the Commission, we do not think that it is sensible to commit ourselves in legislation when it will be perfectly feasible to get a legislative vehicle for this amendment, if it proves to be advisable, when we know what the finding of the Commission and, possibly, subsequently of the court will be—and those decisions are notoriously difficult to predict.

Although we had a disagreement on the last amendment, I hope your Lordships will recognise that we are in a generally conciliatory position on this Bill, that we recognise the disinclination that some of your Lordships have for this particular bar, that we really do not think we can remove all protection, but that we ought not to commit ourselves to the substitute until we have a ruling.

I hope that my noble friend, when considering further stages, does not overlook the fact, which I think rather tended to be pushed on one side by the noble Lord, Lord Hooson, and to a certain extent by my noble and learned friend Lord Renton, that there can be circumstances in which safeguards against civil action need to be retained, and that all one's thoughts should not be directed towards criminal action. For the very good reasons which my noble friend advanced, that could be as much of a threat to people in their daily business as could the criminal one.

May I say a word about the two applications which have been made to the European Commission of Human Rights? In those cases, it is alleged that Section 141 of the 1959 Act is in violation of the European Convention on Human Rights. In one of those cases, the Commission has already decided that this is a claim which is admissible for hearing and the hearing has been fixed for 5th February. It looks as though both of those cases will be as successful as other recent cases brought in the European Court of Human Rights about other aspects of our law relating to mental health.

It happens that these cases are very expensive for the Government, very expensive for the citizens concerned and the costs run into thousands of pounds. May I make a suggestion to my noble friend, which could save a lot of public money and a great deal of concern on the part of those who are worried about Section 141; namely, that he accepts this amendment—that will perhaps convince the European Commission that there is no need for these cases to be proceeded with—and in due course comes up with a suitable Government amendment which he may discover would be acceptable to all concerned, including the European Court. A good deal of time in Parliament would be saved and, as I said, a good deal of public money and concern on the part of those who think about these things.

In a recent case on another matter, the Government could have submitted to judgment after the Commission gave its view, but they did not. They plodded on and spent thousands of pounds of public money and eventually lost. We do not want this kind of proceeding to go on indefinitely—we come out of it badly every time—and it is so obvious on this occasion that we could save ourselves trouble and, indeed, some degree of ignominy.

May I respectfully suggest to the noble Lord, Lord Elton, that the suggestion just made to him by the noble and learned Lord, Lord Renton, should be very carefully considered? It seems to me, apart from anything else, if the noble Lord is saying that the Government are awaiting the decision of the European Court, that we do not know when that decision will be given. If they accept the repeal of Section 141 now, and are then in a position to bring in their own amendments which can then be considered by this House, they will not be in any way prejudicing their own position at Strasbourg—

They are strengthening it.

I respectfully agree that they would he strengthening it. It would then be open to this House to consider the Government's amendments and whether they could be supported. It seems to me that there is general disquiet about Section 141, which was greatly criticised in the 1978 White Paper, and that the Government should take such a negative attitude when they are faced with two likely adverse decisions in Strasbourg does not seem to accord with common sense.

May I suggest to my noble friend, even before he lets the siren voices to which he has just been listening sink in, that if he were to follow the advice of my noble and learned friend Lord Renton, as endorsed by the noble Lord, Lord Hooson, he would be casting great distress upon those very people whom, in his opening remarks, he sought to protect from unreasonable threat from various directions. Perhaps it is rather better to look to the general wellbeing and morale of public servants than to bother with what is happening across the Channel in Europe.

I am surrounded by sirens! I would certainly not accept that we should repeal Section 141 and put nothing in its place. That would be unwise from two points of view: that which I have adduced and that which my noble friend Lord Mottistone has adduced. I have met many of the people who do this work since I took on my present responsibilities and I have a totally unbounded admiration for the dedication of people who in exhausting circumstances, day after day, week after week, year after year, give of themselves to the disordered, and sometimes pathetic and sometimes aggressive people whom they serve and whom, willy-nilly, sometimes they must detain. I believe that they deserve and must have protection from the sort of litigation which can endlessly get them into court and against which they can protect themselves only by being always accompanied, like St. Paul, by a great cloud of witnesses. I stand absolutely firm on that.

However, I am aware that there is a desire to consider whether the route by which a prosecution may be proceeded with is entirely appropriate. I would want to read what my noble friends and others have said on that matter in this debate. I would also say to noble Lords opposite that they would be unwise to press an amendment which I should he bound to resist when in fact we have not, with one notable exception, considered the way it meshes with the rest of the principal Act. They could find that they were legislating defectively. That is something which one should not do, even between stages of a Bill. So if the noble Lords want to go away and think about that, I will think about what I have talked about, and it may be that we can reach a conclusion at Report. But the initiative is of course with the noble Lords opposite.

While the noble Lord, Lord Wallace of Coslany, is thinking about his reply perhaps I may ask the noble Lord, Lord Elton, to explain one point arising from his answer which relates very much to the point which was made by the noble Lord, Lord Mottistone. The noble Lord, Lord Elton, said that the Government could not possibly agree to the repeal of Section 141 here and now and putting nothing in its place. For the Government merely to accept this amendment does not mean, and surely the noble Lord is not suggesting that it means, that Section 141 of the principal Act disappears as from today. Nothing happens at all. Section 141 remains in force and the people about whom the noble Lord, Lord Elton, and the noble Lord, Lord Mottistone, are concerned will still have all the protection of Section 141. Merely to accept the principle does not mean that Section 141 will come out of the principal Act until this Bill goes on to the statute book. The noble Lord, Lord Elton, has made it perfectly clear that by then he may have had to alter Section 141 and replace it with something new, arising from what is going on in Europe. What is the matter with that situation?

The matter is that the noble Lord is asking me, through the Printed Paper Office, Hansard and everything else, to accept the principle that Section 141 should go. What I am accepting is that it is possible that Section 141 ought to be altered. They are very different principles.