Prisoners (Disclosure of Information About Victims) Bill

Baroness Bull Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Tuesday 28th April 2020 Lords Chamber

[Baroness Bull (CB)]

My Lords, it is a privilege to speak in support of a Bill that is perhaps largely technical but one that has been shaped by and responds to the most profound and challenging of human experiences. I commend the Government for their manifesto commitment to the Bill and for progressing it to this stage, despite the circumstances in which we find ourselves. Like the noble Baroness, Lady Kennedy, I pay tribute to honourable Members in the other place who have championed its cause over several years, in particular the Member for St Helens North, Conor McGinn, and the Member for Plymouth, Sutton and Devonport, Luke Pollard. Despite elections, changes of leadership, Brexit, Dissolutions and Prorogations, they have not allowed this issue to be sidelined.

I join in the tributes, which I know will continue, to Marie McCourt, whose tireless campaigning not only attracted nationwide support, but, as importantly, helped other families in similar situations to her own to realise that they were not alone. Her loss was unfathomable; her courage, tenacity and resolve over many decades is remarkable.

The Bill will be vital in helping bereaved families come to terms with their grief and to deal with what for most people will, mercifully, remain unimaginable. It will also be important in restating the Government’s commitment to the safety of our communities and their willingness to take steps, as and when they are necessary, to evolve institutions whose core function is to protect society.

The Bill enshrines in law what is already the practice in parole boards, which is to fully consider the failure by the prisoner to disclose information about the victim’s remains, or the identity of child victims of indecent imagery. Given this, on the surface it might appear to change little. However, it will make decisions more consistent and fair across the system. Importantly, it responds to the pleas of victims’ families, demonstrating that they have been heard. It means that the Parole Board no longer has discretion to disregard non-disclosure in making its decisions—a distinct change, and one that Parliament alone will have the power to reverse.

The Bill can also be seen as part of a wider and necessary process to increase the efficiency, transparency and accountability of the parole system. The review of Parole Board Rules, presented to Parliament in February 2019, made welcome improvements, including enhanced engagement and communication with victims, the new reconsideration mechanism, and standard practice documents to ensure a more robust, transparent and consistent approach to decision-making.

The review also recognised the importance of ensuring a fair hearing for prisoners with mental health needs and learning disabilities, and noted the need for explicit provision in relation to

“the procedure that should be followed in cases where the prisoner is found to lack mental capacity to participate in the parole process.”

I would welcome reassurance from the Minister that he is content that the need for this explicit provision for prisoners lacking mental capacity is adequately addressed in new Section 28A(2), which states:

“When making the public protection decision about the life prisoner, the Parole Board must take into account … the prisoner’s non-disclosure; and … the reasons, in the Parole Board’s view, for the prisoner’s nondisclosure.”


At Second Reading in the other place, the Lord Chancellor and Secretary of State for Justice said:

“This subjective approach will allow the board to differentiate between circumstances in which, for example, the non-disclosure is due to a prisoner’s mental illness.”—[Official Report, Commons, 11/2/20; col. 747.]


Is the Minister fully confident that this provides adequate protection for prisoners with mental health issues and effectively balances the imperative for justice with respect for human rights? I would also be grateful if, in winding up, he could give some indication of the timetable for the tailored review of the Parole Board, and for the root-and-branch review promised in the manifesto and reiterated at Second Reading in the other place by the Parliamentary Under-Secretary of State for Justice.

Amidst a crisis such as the one we currently face, it would be easy to put to one side numerous other pressing problems that afflict society. This makes it doubly commendable that the Government have moved forward with the Bill, fulfilling a manifesto promise and, more importantly, demonstrating a strong commitment to victims of crime and their families. It is a reminder that, while Covid-19 and the suffering it is causing is front of mind in many of our deliberations, other sorrows and tragedies continue to play out in communities, families and the lives of individuals. The Bill will never take away their loss but, in putting the support of victims and their needs at the centre of the justice system, it may help grieving families to achieve some kind of closure and finally to lay loved ones to rest.

Prisoners (Disclosure of Information About Victims) Bill

Baroness Bull Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 20th May 2020 Lords Chamber

Moved by

[Baroness Bull]

2: Clause 1, page 1, line 14, after “prisoner” insert “is able to but”
Member’s explanatory statement
This amendment seeks to ensure that account is taken of the prisoner’s state of mind in determining whether they can make a disclosure.

--- Later in debate ---

[Baroness Bull (CB)]

My Lords, it has long been recognised that the withholding of information about the location of victims’ remains can have a devastating impact on the lives and mental health of their families. This Bill enshrines in law what is already the practice in parole boards, which is fully to consider the failure by a prisoner to disclose this information or, indeed, to disclose the identity of child victims of indecent imagery. By removing any discretion to disregard non-disclosure, the Bill will play an important role in helping families come to terms with what for most of us is unimaginable grief. It is for these reasons that I supported the Bill at Second Reading. In doing so again today, I repeat my tributes to Marie McCourt and to those people who have campaigned tirelessly over several decades to see legislation of this sort brought before the House.

Amendments 2 and 4 in Clause 1 and Amendments 7, 8, 10, 11, 13, 14, 16 and 17 in Clause 2 make two connected points. The first is that parole boards must take account of the prisoner’s state of mind when determining whether they can in fact make a disclosure, and the second is that the prisoner’s mental capacity within the meaning of the Mental Capacity Act 2005 to make the disclosure, is taken into account. Out of necessity, the amendments are repeated at relevant places in the Bill, so I am essentially speaking to two amendments, and these two amendments stand together.

My amendments address the concern I raised at Second Reading that, as drafted, the Bill fails to provide adequate protection for prisoners with mental health issues, and therefore seeks to balance the imperative for justice with the appropriate regard for human rights. Since that occasion, I have discussed these concerns with colleagues working in mental health and with others working in mental health charities, including the charity Rethink. I am grateful to them and to the noble and learned Lord, Lord Hope of Craighead, for their expert advice, and it is with their support that I have tabled these brief amendments.

In response to my questions at Second Reading, the noble and learned Lord, Lord Keen of Elie, said:

“We are confident that the provisions of the Bill are sufficient and effective to apply in the contexts of non-disclosure, psychiatric conditions and mental illness.”—[Official Report, 28/4/20; col 214.]


Speaking in the other place, the Lord Chancellor and Secretary of State for Justice, Robert Buckland, further clarified the Government’s acceptance by saying:

“This subjective approach is fundamental to the proper functioning of the Bill.”—[Official Report, Commons, 11/2/20; col. 748.]


In other words, the Government accept that the approach has to take into account the circumstances of the particular prisoner. This acceptance is important because the consequences of deliberate non-disclosure will, in most cases, give rise to a longer period of imprisonment. The Government rightly accept that these consequences should not flow on a strict liability basis, but only where in effect the non-disclosure is culpable and where there is, as conventional principles dictate, the combination of a relevant act carried out with the requisite degree of either intentionality or recklessness.

This approach has to be correct; any other approach would come dangerously close to suggesting that the mere fact that there is missing information means that the prisoner should be held responsible for withholding it. While the Government’s acceptance of this key point is welcome, the Bill does not at present specifically direct the Parole Board’s attention to the consideration of whether, first, the prisoner has the mental capacity to decide whether or not to disclose the information, and/or, secondly, whether for some reason—for instance, because of the presence of mental disorder—they cannot form the requisite intention to withhold the information.

It is difficult to know how extensive a problem this might present, as it has always been challenging accurately to estimate the number of prisoners with mental health problems in England and Wales. The 2017 report from the Public Accounts Select Committee showed that people in prison are more likely to suffer mental health problems than those in the community, and successive reports from the noble Lord, Lord Bradley, the National Audit Office and others have all highlighted that it is unknown precisely how many prisoners have mental illnesses. Figures from NHS England in March 2017 showed that nearly 8,000 prisoners, 10% of the prison population, were receiving treatment for mental illness in prison. It is estimated that 37% of NHS expenditure on adult healthcare in prisons is on mental health, which is more than twice the proportion within the NHS budget as a whole. The Public Accounts Committee also found that imprisonment can exacerbate mental illness, due to what it describes as,

“a deteriorating prison estate, long-standing lack of prison staff and the increased prevalence of drugs in prison.”

This is highly relevant to the Bill, given that parole hearings are likely to take place some considerable time after sentencing.

The World Health Organization points to several factors that have negative effects on the mental health of prisoners, including exposure to violence, enforced solitude or, conversely, lack of privacy, absence of meaningful activity, insecurity about the future and inadequate mental health services. Prisoners with mental health issues are often subject to bullying and extortion; they may even have their medication stolen. The Royal College of Psychiatrists has expressed concerns that its members are unable to deliver adequate mental health services in prisons.

These points bear repeating here because they demonstrate both the scale of mental health problems in the prison population and the potential for mental health to deteriorate during imprisonment. By extension, mental capacity may also change during imprisonment, given that, as defined within the Mental Capacity Act 2005, lack of capacity may be related to mental health, learning disabilities and neurodegenerative conditions such as dementia. The charity Rethink and other experts believe that these particular conditions are likely to be overrepresented in the prison system. Capacity is also specific to a given decision, rather than universal, meaning that a person who lacks capacity for some kinds of decisions may well be able to make others. The Mental Capacity Act code of practice is clear that a person can have capacity to make decisions in certain areas—for example, deciding what activities to undertake—while lacking it in others, such as a decision to disclose information. The potential for capacity to change over time, particularly with mental health conditions such as dementia, is especially relevant here, as the Government are rightly focused in the Bill on the present position. This makes it all the more important that parole boards are directed to take into account the current capacity of an offender to disclose information about a victim, the presence of mental illness at the time of the hearing, the place of the offender in their mental health recovery and their compliance with any treatment for mental health conditions.

As the Bill is presented, it would indeed be possible for the Parole Board to take these matters into account in the very broad discretion provided by each of the relevant clauses. This could also be amplified in any guidance provided to the Parole Board, but I contend that the Parole Board is not directed with sufficient precision to consideration of whether refusal to provide the relevant information is deliberate, and hence culpable. As the consequences of deliberate nondisclosure are, and are intended to be, serious, the test to be applied by the Parole Board should explicitly reflect this.

To conclude, my amendments would ensure, first, that specific focus is placed in that broad discretion on whether the refusal to disclose information is deliberate and therefore culpable, hence also relevant to consideration of the likely risk that the prisoner will pose; and secondly, that when considering questions of the prisoner’s capacity to make the decision to refuse to disclose the information, the Parole Board is doing so by express reference to the provisions of the Mental Capacity Act 2005. This is of no little importance, given the time-specific nature of the test for capacity in the Act. The focus of the Parole Board’s attention should be on whether the prisoner currently has the capacity to make the decision, rather than the position historically. This will be of particular relevance where the prisoner has a progressive condition such as dementia.

The Parole Board’s broader discussion to take account of all other relevant factors remains unfettered by the amendments. I urge the noble and learned Lord to consider these amendments and the attempt behind them seriously. I believe that they in no way undermine this important Bill; rather, they strengthen it by directing the Parole Board explicitly to determine whether prisoners’ withholding of information is deliberate, conscious and therefore culpable, and not unimportantly a potentially legitimate signifier of continued risk. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I will speak to Amendments 2 and 4, to which I have added my name. I am most grateful to the noble Baroness, Lady Bull, for her introduction to the group. I too completely understand the policy reasons that have given rise to the Bill. I have the deepest sympathy for those who feel that they can have no closure until they are given the information that the Bill refers to.

A tragic headline in the Scotsman only three weeks ago read:

“We cannot say goodbye until Suzanne is found.”


This was a reference to the case of Suzanne Pilley, of whose murder her former lover, David Gilroy, was convicted in 2012. It is now 10 years since she went missing, and her body has still not been found. Her family believe that he is the only person who knows where it is. The problem is that Gilroy has maintained throughout, despite his conviction, that he is innocent. He says that he cannot reveal where the body is and that it had nothing whatever to do with him. There seems to be no way out of this impasse, but the family’s distress is very real and very deep. As the noble and learned Lord, Lord Mackay of Clashfern, said, sadly, it is not always possible to find a just solution to their pain.

However, we need to be very careful about exactly what it is that the Bill is trying to achieve—or, to be more precise, about the test that the Parole Board is being asked to apply when it takes non-disclosure into account. The noble and learned Lord, Lord Garnier, was quite right in his understanding that our amendments seek to leave it with the Parole Board to make the judgment. As the noble Baroness, Lady Kennedy of Cradley, said at Second Reading in the Chamber in April, this is not a “no body, no release” Bill, although that is what some campaigners would have preferred. We need to be clear: is the Bill about simply delaying release as a punishment, or securing the release of information? Surely, it is only by securing the release of the information that the board will be able to give closure to those most affected. I hope the Minister will be able to confirm that it is the latter and that the point of the Bill is to strengthen the power of the Parole Board to encourage disclosure. “Encourage” is perhaps too mild a word because of course, we have to face the fact that disclosure must have been asked for repeatedly, time and again, ever since the prisoner was first interviewed by the police. Nevertheless, one can only hope that, however this is done, the board will be able to achieve that objective.

--- Later in debate ---

[Lord Keen of Elie]

It does appear that the amendment has that effect even it was unintended. I will give the matter further consideration, as invited to by the noble and learned Lord.

[Baroness Bull]

My Lords, I am grateful to the noble and learned Lord, Lord Keen of Elie, for his comments and I have listened carefully to his response. I also express my gratitude to all noble and noble and learned Lords who have spoken in support of my amendments. Aside from generously sharing his considerable expertise with me in advance of today’s debate, the noble and learned Lord, Lord Hope of Craighead, helpfully extended my arguments to include the possibility that the convicted prisoner is not in fact able to disclose the information because, despite the findings of the court at trial, they are innocent. One hopes that this is rarely the case, but of course history shows that it can indeed be so.

I am also grateful to the noble Baroness, Lady Barker, who sounded a useful warning about the general understanding of the Mental Capacity Act and concerns about the extent to which it is drawn on and applied within the prison environment. She raised an important question about training for practitioners in the criminal justice system, including members of the Parole Board, in applying the provisions of the Act. The Minister responded to a point about competence, but I am not sure that he responded to the point about training more broadly to enhance understanding of the Act within the criminal justice system. Perhaps he would write to us on that point.

The noble Baroness, Lady Watkins, spoke from her position of vast experience, including in Broadmoor, and reminded us that medical personnel are usually well able to distinguish between genuine mental disorders and what was referred to earlier as “guff”. Her views of course bear considerable weight here.

I am grateful to the Minister for addressing the two limbs of my amendments in so much detail. Like the noble and learned Lord, Lord Hope, I was confused by his point about previous refusals not being taken into account. I am grateful to him for agreeing to reflect further on that, in response to the noble and learned Lord’s further comments. He argued that state of mind and/or mental capacity are just one of several reasons why disclosure might not be possible. However, given what we have heard today from the noble Baroness, Lady Barker, about understanding the Mental Capacity Act as it is applied within the criminal justice system, and the potential for the infringement of human rights, I contend that there is justification for expressly including this reason in the Bill.

The noble Lord, Lord Kennedy of Southwark, set out very clearly the difficult balance between the rights of a grieving family, who have been by extension the victims of a heinous act, and the rights of a prisoner, convicted of that crime but who suffers a mental health disorder or who, for whatever reason, lacks the mental capacity at the time of the Parole Board hearing to disclose the information requested of him. I know that every noble Lord who has spoken today is acutely aware of this tension and of the importance of this Bill, not just in putting the needs of victims at the centre of the justice system and helping grieving families to achieve closure but as part of a wider and necessary process to increase the efficiency, transparency and accountability of the parole system.

My amendments do not seek to alter the intention of the Bill in any way. As the noble Lord, Lord German, pointed out, neither of the amendments takes away the subjective capacity of parole boards. They simply seek to add clarity through the insertion of the words “is able to, but”, and an explicit reference to consideration of mental capacity. I continue to believe that these simple amendments would support the Parole Board in the fulfilment of the new statutory duty that the Bill places on it by enshrining in law what government has already accepted: that parole boards need to take state of mind and mental capacity into account. This would empower them to do so with confidence and consistency.

I am very grateful to the noble and learned Lord for considering the amendments. I am disappointed that he has not been persuaded by my arguments and those of other noble, and noble and learned, Lords. However, for the time being, I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Prisoners (Disclosure of Information About Victims) Bill

Baroness Bull Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 1st July 2020 Lords Chamber

Moved by

[Baroness Bull]

1: Clause 1, page 1, line 14, after “prisoner” insert “is or was able to but”
Member’s explanatory statement
This amendment seeks to ensure that account is taken of the prisoner’s state of mind in determining whether they can make a disclosure.

[Baroness Bull (CB)]

My Lords, Amendments 1, 2, 5, 6, 8, 9, 11, 12, 14 and 15, in my name, are in substance the amendments I introduced in Committee. Now as then, I am grateful to the noble and learned Lord, Lord Hope of Craighead, and the noble Baroness, Lady Barker, for supporting them. I am also grateful to the noble Lord, Lord Bradley, who cannot be here today but has great experience in these matters and has written to express his support.

I will speak to the first two amendments, which are repeated, out of necessity, at relevant places in the Bill. The two stand together and make connected points. First, the Parole Board must consider the prisoner’s state of mind and whether for some reason, such as the presence of mental disorder, they cannot form the requisite intention to withhold the information. Secondly, the board must be satisfied that the prisoner has the mental capacity, within the meaning in the Mental Capacity Act 2005, to decide whether to disclose. In moving these amendments, I put on record yet again my support for the principle of this Bill and my admiration for Marie McCourt. I acknowledge the Bill’s importance to grieving families in achieving closure in the most terrible circumstances.

In Committee, the Minister expressed two objections to my amendments. I am very grateful to him for taking time to discuss them in advance of today. His first objection was that my amendments would prevent the Parole Board taking into account any previous occasions on which the offender had had the opportunity to co-operate with the authorities and reveal a victim’s whereabouts, but had refused to do so. He argued that if this offender later became unable to make a disclosure for reasons of deteriorating mental health, for example, my amendment would leave the board unable to consider any prior refusal to co-operate in assessing the risk the prisoner posed to the public in the event of release on licence. The amendments tabled today meet this objection by including the potential for historical consideration.

His second concern is more fundamental and goes to the heart of what I see as the underlying problem with the Bill. Throughout its progress, he has repeated the Government’s view that the board’s discretion to consider all possible reasons for non-disclosure must be unfettered. He contends that my amendments give undue prominence to one factor among the many the board will take into account when making a public protection decision.

But this in effect exactly what the Bill does. It turns consideration of non-disclosure—already a standard practice in parole panels—into a statutory duty. But it fails to create a parallel statutory duty of what must be a fundamental responsibility of the board in coming to its view: to consider whether the prisoner is able, for reasons of mental capacity or disorder, to disclose that information. The Bill therefore comes dangerously close to collapsing together the question of whether there is missing information with that of whether the prisoner should be held responsible for it.

Even if the Bill is not, in law, creating a new criminal offence of non-disclosure, the effect of deliberate non-disclosure is inexorably going to lead to the conclusion that the prisoner poses a risk and, as a result, requires to be kept in prison. Therefore, the Bill is in effect creating a statutory hurdle to release in those cases where deliberate non-disclosure is established. Given this, it should be explicit that that statutory hurdle can exist only where the prisoner can be held responsible for their own actions—that is to say that they are not suffering from a mental disorder or otherwise from impairment of mind or brain that should be seen as alleviating that responsibility.

The noble and learned Lord the Minister has been consistent in arguing that the Parole Board must be allowed to take into account a wide range of factors in making its decisions. But in relation to the Bill, which is so tightly focused on non-disclosure, there are really only three possible scenarios a board would face. The first concerns those cases where disclosure is not possible because the prisoner, for whatever reason, was not party to the disposal of remains and so genuinely does not know where the body is. Of course, there will also be cases where prisoners continue to protest their innocence. This is a problem for the board, but it is not what the Bill is about.

The second scenario concerns the non-disclosure cases where the verdict is not disputed and the facts of the case leave no room for it to be argued that the prisoner does not know where the victim’s body is located. In both those scenarios it is simple. There is either an inability to disclose or there is deliberate non-disclosure, which is culpable. The prisoner who persists in this wilful refusal, amplifying again the distress already visited on the family of the victim, must take the consequences, and in its efforts to address this particular issue, the Bill has my full support.

But it is the third scenario that my amendments address—a scenario on which the Bill is silent. It is the scenario in which the prisoner, for reasons of mental disorder, cannot form the requisite intention to withhold information, or lacks the mental capacity to take the decision to do so. By failing to mention any possibility of the contrary, the Bill assumes that the prisoner has the ability to disclose, thus making any non-disclosure culpable. Prolonged detention for non-disclosure in such cases would be unfair, unjust and a potential infringement of human rights.

By elevating non-disclosure to statutory status, the Bill already departs from the Government’s stated policy of leaving to the Parole Board decisions as to what weight, if any, it gives to the many factors it must consider. The Government have accepted, at the Dispatch Box here and in the other place, that the board should take state of mind and mental capacity into account. But the Bill provides the board with no guidance as to how its statutory duty is to be performed with regard to this. By extension, it fails to guide victims’ families as to what they should expect of the Parole Board in cases of this kind. My amendments would address this discrepancy by elevating in parallel the related imperative to take the ability to disclose into account.

If the Minister is not willing and able to accept these amendments, as I fear he is not, and this guidance is to be dealt with outside the statute, can he at least provide clarity as to what this guidance to the Parole Board is to be, where it is to be found and how its use will be monitored? I would be grateful if he could confirm definitively what training members of the Parole Board receive to support them specifically in making determinations under the Mental Capacity Act 2005. If the board’s responsibility to take mental disorder and mental capacity into account is not to be a statutory duty, it will be vital that its members are fully conversant with the Act and its use within the criminal justice system. I beg to move.

[Lord Hope of Craighead (CB) [V]]

My Lords, I am grateful to the noble Baroness, Lady Bull, for her introduction to this group of amendments, to which I have added my name. I entirely support her careful analysis of the problem they seek to address.

There is no doubt that the Bill has been drafted with the best of intentions, and, as I said when we discussed them in Committee, I completely understand the policy reasons that lie behind it. I have the deepest sympathy for those it seeks to help. We have tended to focus on cases where the failure to disclose has been in murder or manslaughter cases, where the question is where the victim’s remains were disposed of. But cases about the identity of children who are the subject of indecent images are just as distressing to the victims and their families. Our amendments, which are not intended in any way to undermine the Bill’s intentions, extend to both of them. That is because the Bill, as drafted, gives rise to the same problem in both cases. I recall the noble and learned Lord the Minister agreeing with us, in the virtual meeting to which he very kindly invited us, that what matters for the purposes of our discussion is the substance of the issue our amendments raise, not their precise wording. The same cannot be said of the Bill; its precise wording does indeed matter.

It is the wording of the new Sections 28A(1)(c) and 29(1)(c) that create the difficulty. I entirely understand the noble and leaned Lord’s point, which he made in Committee and repeated to us in our meeting, that subsections (2) and (3) of those sections do not limit the matters which the Parole Board must or may take into account, and that he does not want to limit the scope that this leaves to the board. The problem lies in the meaning that is to be given to the words “has information” and “has not disclosed” in subsection (1), which sets the context for the whole exercise. There is a gap here, which the Bill leaves open. Cases of deliberate refusal where the prisoner has the information, is able to disclose it and fails to do so are covered by these words. These are the obvious cases that are so distressing. They can be seen as cases where the prisoner is deliberately prolonging the agony being suffered by the victim’s families and, in the children’s case, by the victims too. Their predicament is horrifying, and it is right that everything should be done to address it. The word “non-disclosure” is absolutely right for use in these cases. It carries with it the notion of intention, as the noble Baroness made very clear. For very good reasons, it was these cases that were in mind when the Bill was being drafted to give statutory force to “Helen’s Law”.

But what about those whom the board believes have or had the information because of the way the crime was committed but, for the reasons given by the noble Baroness, are simply not able to disclose it to the Parole Board because they lack the intention? That is the gap that the Bill leaves open and our amendments seek to fill. It may be said that, as matters stand today, cases of that kind can be dealt with by the Parole Board perfectly well, with all the understanding that they deserve. The Bill assumes that what the board does now must be transformed into a requirement—a statutory duty—and all that this entails. It is designed to change something, not leave things as they are. One can see, by looking at Amendment 17, in the name of the noble Baroness, Lady Kennedy of Cradley, what this may lead to. The context for any judicial review will be set by the terms of the statute. The board needs clarity on this matter.

--- Later in debate ---

[Baroness Bull]

My Lords, I am grateful to the many noble and noble and learned Lords who have spoken in support of my amendments, and I am particularly grateful to the noble and learned Lord, Lord Hope of Craighead, and the noble Baroness, Lady Barker, for adding their names to them. All noble Lords who spoke supported the aims of this Bill, but several shared concerns that the wording creates difficulties. As the noble and learned Lord, Lord Hope of Craighead, noted, the words “has information” and “has not disclosed” leave a gap in which the third scenario I outlined, where the prisoner is not able to disclose for reasons of mental disorder or mental capacity, is not covered. It does not provide the clarity that the board requires. I echo what I fear is the futile hope of the noble and learned Lord, Lord Hope of Craighead, that the Minister might be persuaded to reflect further following today’s debate and consider a government amendment at Third Reading.

The noble Baroness, Lady Barker, spoke with great experience and authority about the widespread lack of understanding of the Mental Capacity Act and its application within the criminal justice system. For reasons of time today, I did not repeat the observations I made in Committee about the extent to which issues of mental health might be a problem. The paucity of knowledge about the scale of the mental health challenge in our prison population, along with the potential for and the reasons behind mental health decline during incarceration, are there in Hansard. Like the noble Baroness, Lady Barker, I consider that they remain real concerns in the light of this report of poverty of understanding of the Mental Capacity Act.

I am grateful to the Minister for his response and, as I said earlier, for taking the time to discuss between Committee and today’s debate, and I am only sorry that he has felt unable to take on the concerns that we have collectively expressed. However, I appreciate his confirmation that any decision that does not take mental capacity into account could be subject to judicial review. I wonder whether he could clarify his response to my earlier question, along with that put by the noble and learned Lord, Lord Hope, as to where guidance on this could be found, how it would be applied and how it be monitored if it is not to be a statutory duty. Where is the guidance on application or consideration of mental capacity and mental impairment?

Finally, could the noble and learned Lord specifically address the question posed by the noble Baroness, Lady Barker, in Committee and again today, and in writing on 19 May by the noble Lord, Lord Bradley, as to what training in the Mental Capacity Act and its application is mandated for members of the Parole Board. I understand that they possess expertise in mental health matters, but that is not exactly the question that was asked.

[The Deputy Speaker (Lord Russell of Liverpool) (CB)]

Does the Minister wish to reply? No?

[Baroness Bull]

In which case, with regret, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.