Mental Health Bill [HL]

Debate between Lord Pannick and Baroness Buscombe

Consideration of Commons amendments and / or reasons
Monday 24th November 2025 Lords Chamber

[Baroness Buscombe (Con)]

My Lords, I entirely support my noble friend Lady Berridge. Following on from the noble Lord, Lord Meston, this is a really important issue in relation to my noble friend’s amendment. It is unfortunate that this issue was not put out to consultation because there is a lack of clarity. It would be otiose to repeat anything that either noble Lord has already said, but I urge the Minister—and I know she is a very good listener—to consider this issue a little further, given that this moment for the child or young person is so critical. Unless there is clarity, unless it is in the Bill and unless this issue of discretion versus mandating to support the role of the AMHPs is sorted out in the primary legislation, it will be very difficult to reflect that in any statutory code of practice.

[Lord Pannick (CB)]

My Lords, I join with the noble Baroness, Lady Watkins, in welcoming government Amendment 12, which says:

“A registered care provider is to be regarded for the purposes of section 6(3)(b) of the Human Rights Act 1998 as exercising a function of a public nature in providing any of the services mentioned”.


I am particularly pleased to see that the Government and the other place accepted this point, because it reverses the effect of a decision of the Appellate Committee of this House in 2008, YL v Birmingham City Council, in which I was the unsuccessful counsel for the unfortunate applicant. At the time, I took comfort from the fact that, of the five members of the Appellate Committee, the two who dissented in favour of my client were the noble and learned Lord, Lord Bingham of Cornhill, and the noble and learned Baroness, Lady Hale, and I am very pleased that their approach has now been accepted by Parliament. The point was summarised by the noble and learned Baroness, Lady Hale. She said that it is a function of a public nature for the purposes of the Human Rights Act when the function is performed pursuant to statutory arrangements, when it is performed at public expense and when it is performed in the public interest. It has taken 17 years, but the law has got there in the end.