Mental Capacity (Amendment) Bill [HL]

Debate between Lord Hope of Craighead and Lord O'Shaughnessy

Tuesday 26th February 2019 Lords Chamber

[Lord Hope of Craighead]

I am not surprised; we are all grappling with a difficult area. Based on my own experience, and my reading of the Strasbourg decisions, the Government’s approach is the safer one to adopt. Before the noble Baroness stopped me, I was trying to say that there are situations where the use of a double negative is a perfectly intelligible way of proceeding, so that criticism does not seem particularly strong. I suggest that we follow the Government’s approach for the reasons I have given, especially because of the way it anchors the proposed section to Article 5 itself. We are always going to come back to the Strasbourg court and the way it interprets the article. We do not have the final word on this, I am afraid, because of the way the convention is framed, the way we have subscribed to it and the way we apply the decisions of the Strasbourg court.

[Lord O'Shaughnessy (Con)]

My Lords, this is a challenging and complex Bill and this topic is possibly the most complex of all. Before considering the merits of the two approaches, it is worth reflecting on the fact that a huge amount of work has gone into the development of the government amendment and that in the name of the noble Baroness, Lady Tyler. I signal our gratitude to that work, and to the contribution of many people who grappled with a difficult and challenging area, as the noble and learned Lord pointed out. I am certain that all those people had the right intentions.

Speaking from the Back Benches, having shepherded the Bill on an interesting rollercoaster ride through this House while I was a Minister, there are two questions which I have to satisfy myself on. The first, and less important in a sense, is whether this fulfils the promise which I made the House that the Government would bring forward a definition. The second—much more important—one is whether the Government have provided an operable definition that will be useful in reality, which is, after all, what we want. My noble friend the Minister gave a robust exposition of the merits of the Government’s amendment. It is certainly the product of a huge amount of work, some of it when I was in the department, and offers clarity and precision. It also offers a way through on the point made by the noble Baroness, Lady Finlay. There has been a great deal of disagreement on what the right, positive definition ought to look like, so going for a negative one—I think it was described as an exclusionist definition—offers a way through.

The noble Baroness, Lady Tyler, made an important point about the complexity of language and whether this is intelligible. We need to draw a distinction between who will be using the Act and who will be using the statutory guidance that will flow from it. The Act will mainly be the subject of scrutiny by lawyers and others who are able to cope with double negatives and such things, in a way that I cannot. More importantly, these will be—and are being—distilled into case studies of how this would operate in practice. That is what will be practically useful for cared-for people, their carers and those who are supporting them. Perhaps when my noble friend responds to this debate she will say a little more about how the statutory guidance which will bring this to life will be scrutinised.

The key question is whether the definition that the Government have provided will be usable in the courts and compatible with the ECHR. I believe that it is but, more importantly for this House, the opinion of the noble and learned Lord, Lord Hope of Craighead, is that it performs that function. On that basis, I am happy to support the approach taken by the Government, not only because it satisfies the commitment I made to this House but, more importantly, because it provides an operable definition that will be useful to those who have to grapple with it every day.