Background

In the King’s Speech in July 2024, the new Government announced its intention to “legislate to modernise the Mental Health Act so it is fit for the twenty first century”. The Mental Health Bill was subsequently introduced in the House of Lords on 6 November 2024 and Committee Stage in that House is scheduled to commence on 14 January 2025.

The Mental Health Bill is the product of years of preparatory work. In 2017, then-Prime Minister Theresa May commissioned an independent review of the Mental Health Act 1983. The review, chaired by Professor Sir Simon Wessely, published its report in December 2018. The Government subsequently brought forward a White Paper in 2021. Following a public consultation on that White Paper, the Government published a draft Mental Health Bill in June 2022. Parliament’s Joint Committee on the Draft Mental Health Bill carried out pre-legislative scrutiny of the Bill and published its findings in January 2023. These findings have informed the Mental Health Bill which is now before Parliament.

The Government’s proposals

The Bill aims to amend and reform a number of aspects of the Mental Health Act 1983. The Mental Health Act 1983 is the principal legislation governing the detention and compulsory treatment in England and Wales of people suffering from mental disorders.

The Government’s proposals in the Bill are wide-ranging, covering policies on multiple areas including:

• Autism and learning disabilities
• Grounds for detention
• Nominated persons
• Advanced choice documents
• Community treatment orders
• Changes to the statutory Codes of Practice

Role of the Joint Committee on Human Rights

The Joint Committee on Human Rights carries out scrutiny of legislation to ensure its compatibility with international and domestic human rights standards.

The Mental Health Bill deals with the detention and compulsory treatment of patients against their will. As such, it raises important issues concerning liberty and autonomy, as well as issues of public and personal safety.

The European Convention on Human Rights (ECHR) – which has been incorporated into domestic law through the Human Rights Act 1998 – includes a number of rights that may be engaged by the measures in the Mental Health Bill. For example:

• Article 5 ECHR guarantees the right to liberty and security. Article 5 states that “[n]o one shall be deprived of his liberty” except where it is in accordance with a “procedure prescribed by law” and one of the exemptions in the exhaustive list set out in Article 5. Article 5(1)(e) states that a person can be deprived on their liberty in accordance with a procedure prescribed by law where it is for the lawful detention of “persons of unsound mind”. Article 5 requires certain safeguards and procedures to be in place before a person can lawfully be deprived of their liberty.
• Article 8 ECHR guarantees the right to respect for private and family life. Article 8 is relevant to many aspects of mental health and medical treatment. For example, mental health is regarded as an indispensable precondition to effective enjoyment of the right to respect for private life. An individual’s right to refuse medical treatment falls within the scope of Article 8, including in the case of a mentally ill patient.
• Article 14 ECHR prohibits discrimination. Article 14 is not a stand-alone or general right against discrimination; the prohibition on discrimination only applies to discrimination in the enjoyment of the other rights set out in the Convention. It can therefore be relevant to arguments made under the other substantive rights, such as Articles 5 and 8.
• Articles 2 and 3 ECHR may also be relevant. Article 2 guarantees the right to life. The UK has responsibilities under Article 2 to protect the lives of vulnerable people in its care. Article 3 prohibits torture and inhuman or degrading treatment or punishment. Where forced medical intervention is medically necessary and procedural safeguards are in place, it is usually not considered to amount to inhuman or degrading treatment. However, where medical necessity is lacking, medical treatment can be found to be incompatible with Article 3.

Other international human rights instruments may also be engaged by the provisions of the Bill, particularly the UN Convention on the Rights of Persons with Disabilities.

On 4 December 2024, the Northern Ireland Office laid a proposal for a draft Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (Remedial) Order 2024 (the ‘Proposed Remedial Order’).

The Joint Committee on Human Rights would like to hear your views.

What is a remedial order?

A remedial order is a form of secondary legislation. They can be used to amend primary or secondary legislation in circumstances specified in section 10 and Schedule 2 of the Human Rights Act 1998. In particular, remedial orders can be used in response to declarations of incompatibility issued by the courts under section 4 of the Human Rights Act 1998.

Background and Declarations of Incompatibility

The Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (‘the Legacy Act’) received Royal Assent on 18 September 2023. The Act was intended to “address the legacy of the Northern Ireland Troubles and promote reconciliation”.

Judicial review proceedings were brought against the Government in the High Court in Belfast in the case of Re Dillon and Others [2024] NIKB 11. The Applicants challenged the compatibility of various provisions of the Act with the European Convention on Human Rights (‘ECHR’), in particular:

• Article 2 (right to life) and Article 3 (prohibition of torture) ECHR. Article 2 ECHR provides that everyone’s life shall be protected by law. Article 3 ECHR provides that no one shall be subjected to torture or inhuman or degrading treatment or punishment. Both Articles 2 and 3 of the ECHR impose an obligation on the state to ensure that there is an effective official investigation where conduct in breach of the relevant Article is suspected. The UK is obliged to have in place an effective system of criminal law which is capable of deterring the commission of offences by the prevention, investigation and sanctioning of breaches.
• Article 6 (right to a fair trial) ECHR. This right guarantees the right to fair and public hearings before an independent tribunal for determination of civil rights and obligations (or criminal charges). Article 6 can be limited in certain circumstances. However, any restriction must pursue a legitimate aim and be proportionate.

The High Court handed down its judgment on 28 February 2024. The High Court found the following provisions to be incompatible with the ECHR and issued declarations of incompatibility under section 4 of the Human Rights Act 1998 in respect of them:

• The provisions providing for conditional immunity and prohibiting criminal enforcement action: sections 7(3), 12, 19, 20, 21, 22, 39 and 42(1) of the Legacy Act. These provisions were found to be incompatible with Articles 2 and 3 ECHR;
• The retrospective bar to the continuation of all Troubles-related civil actions brought between the First Reading of the Bill in Parliament in May 2022 and the date it came into force in November 2023: section 43(1) of the Legacy Act. This provision was found to be incompatible with Article 6 ECHR;
• The exclusion of material provided to or produced by the Independent Commission for Reconciliation and Information Recovery being used as evidence in other cases, such as civil and coronial proceedings: section 8 of the Legacy Act. This provision was found to be incompatible with Articles 2 and 6 ECHR; and
• The provisions related to the retrospective validation of defective interim custody orders and the bar on civil actions based on those defective interim custody orders: sections 46(2), (3) and (4) and 47(1) and (4) of the Legacy Act. These provisions were found to be incompatible with Article 6 ECHR and Article 1 of Protocol 1 to the ECHR.

The Government and the Applicants both appealed aspects of the High Court’s judgment to the Court of Appeal. The Court of Appeal handed down its judgment on 20 September 2024 (Re Dillon and Others [2024] NICA 59). The Court of Appeal found the following additional aspects of the Legacy Act to be incompatible with the ECHR and issued declarations of incompatibility under section 4 of the Human Rights Act 1998 in respect of them:

• The provisions barring all future Troubles-related civil actions: section 43(2). This provision was found to be incompatible with Article 6 ECHR;
• The provisions related to disclosure of sensitive material. The Court of Appeal found aspects of the Legacy Act’s disclosure regime to be incompatible with Articles 2 and 3 ECHR; and
• The lack of provision in the Legacy Act for effective next of kin participation, especially in the form of Legal Aid for investigations being carried out by the Independent Commission for Reconciliation and Information Recovery. The Court of Appeal found this to be incompatible with Articles 2 and 3 ECHR.

It was a manifesto commitment of the new Labour Government to “repeal and replace” the Legacy Act. In an oral statement on 4 December 2024 announcing the laying of the Proposed Remedial Order, the Secretary of State for Northern Ireland set out that the Proposed Remedial Order would remedy all of the human rights deficiencies in the Legacy Act which had been identified by the High Court, as well as one of the issues identified by the Court of Appeal. The Secretary of State also indicated that the Government would introduce further primary legislation when parliamentary time allows to address the issue of inquests and other aspects of the Court of Appeal’s judgment. In parallel, the Government is seeking permission to appeal some aspects of the Court of Appeal’s judgment to the Supreme Court.

The Proposed Remedial Order

The Proposed Remedial Order seeks to remedy all of the incompatibilities found by the High Court in Northern Ireland and one of the incompatibilities found by the Court of Appeal in Northern Ireland by:

• Removing the provisions in the Legacy Act which set up the conditional immunity scheme and the prohibition on criminal enforcement action (see Article 2 of the Proposed Remedial Order);
• Removing the ban on using evidence provided to or produced by the Independent Commission for Reconciliation and Information Recovery in civil proceedings and inquests (see Article 3 of the Proposed Remedial Order);
• Removing the bar on new and existing civil actions relating to the Troubles (see Article 4 of the Proposed Remedial Order);
• Removing the provisions which sought to retrospectively validate defective interim custody orders and prevent civil claims for compensation in relation to them (see Article 5 of the Proposed Remedial Order);
• Making various amendments to other enactments which are consequential on the above changes (see Article 6 of the Proposed Remedial Order).

The Proposed Remedial Order does not seek to resolve the other incompatibilities found by the Court of Appeal in Northern Ireland, namely those relating to:

• Effective next of kin participation, including legal aid; and
• Disclosure of sensitive information.