Mental Capacity (Amendment) Bill [HL]

Baroness Thornton Excerpts

Committee: 3rd sitting - (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

[Baroness Barker]

I have to disagree with the noble Baroness, Lady Finlay. Mark Neary had to resort to the law, not to a code of practice, to get his son out of a place where he should never have been detained. We need to have further discussions about what needs to be in the Bill and the role of regulation and the code of practice. I think she has a fundamentally wrong take on this. This is about legal protection for very vulnerable people. That sometimes has to be in a brief outline in law. It has to be stated in the Bill that a person has to be spoken to face to face. We can then go on to put a load of stuff in the code of practice about how we do that.

To pick up the point made by the noble Baroness, Lady Murphy, I think this is a terrible Bill containing huge holes and some real problems. If the Government take the tack they took last time, we may be able to improve it substantially, but we are in danger of putting one bureaucracy in place of another bureaucracy, and the only difference between the two is that there are far fewer protections for the most vulnerable people. We would be somewhat negligent to go ahead on that basis. I cannot approach the Bill in that way.

[Baroness Thornton (Lab)]

I thank the noble Baronesses, Lady Barker and Lady Tyler, for tabling this amendment. I agree with the remarks of the noble Baroness, Lady Barker, about the state of the Bill. I am rather—“disappointed” may not be quite the right word—surprised that the noble Baroness, Lady Murphy, who has brought discipline to the House to focus on good legislation and how it should work, is suggesting that we have to have something, so this is it. I really hope that that is not the case and that this Committee will have revealed to the Minister, and particularly to the Bill team, that many elements in the Bill need clarification, need to be changed and can be improved. That is our job, and the noble Baroness, Lady Barker, is highlighting but one of those elements. In fact, the amendment that I am due to talk about next refers to the difficulties that the Bill has brought and the differences between the Mental Health Act and the Mental Capacity Act.

The last month or so has been very revealing. The Bill was sold to us as something really quite simple that was going to streamline things, get rid of the backlog, save some money and so on, and it really needed only one day in Committee. That is certainly how it was sold to me on these Benches and, I am sure, to other people in the House. In fact, what has happened over the last couple of months is that all the stakeholders and people who are writing to us are saying, “No, this will not do. This Bill does not work. It is dangerous and difficult”. It needs clarification, and these amendments highlight the areas that need it. We are going to move on to other areas that need clarification and which will certainly need amendment. This is an important and legitimate question to ask about the Bill.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy) (Con)]

My Lords, I thank all noble Lords—I keep saying “noble Lords” but it has really been noble Baronesses, so I will switch my language—who have both tabled amendments in this group and spoken to them.

Before I come to the substance of the amendments, I shall say two things. First, I agree with the noble Baroness, Lady Murphy, that there is an urgency. To use the words of the Local Government Association, “the current system is unable to ensure there is adequate protection for human rights”. That is the reality of the situation that we find ourselves in at the moment.

Secondly, views about the perfection or otherwise of the Bill will vary across the House, but I hope that in the two days of Committee prior to this one I was able to demonstrate that the department and Ministers are absolutely committed to improving the Bill in any way that we can during its passage through Parliament, especially in this House where there are so many experts. I really think we have made some progress. I realise that that will not be enough to satisfy everyone and there is clearly much more to come—care home managers are clearly a big area of work that we need to focus on—but we have made some progress. I encourage noble Lords to continue in that mindset because I think we can reach a good outcome that deals with the fact that, as Age UK says, the system leaves,

“many highly vulnerable older people languishing without any legal protection at all”,

something none of us can accept. We stand ready to undertake that work, as noble Lords know, and I know they do so too.

I turn to the amendments in this group. Amendment 55, tabled by the noble Baronesses, Lady Barker and Lady Tyler, outlines the circumstances in which an authorisation ceases to have effect, particularly noting that authorisations should end if they conflict with a valid decision of a court-appointed deputy or a donee of a lasting power of attorney. The amendment also states that an authorisation would not cease to have an effect if a person’s capacity fluctuated, and would create regulation-making powers to define what constitutes fluctuating capacity.

Section 6(6) of the Mental Capacity Act already provides that action cannot be taken that conflicts with a lasting power of attorney or a deputy’s valid decision, and I can confirm that the Bill does not change that. This means that an authorisation can only be given if it is in accordance with a valid decision, so I hope I have provided reassurance on that front.

I can also confirm that if it emerges that an authorisation conflicts with a decision of a donee of a lasting power of attorney or by a court-appointed deputy, a review should be arranged under paragraph 31 of the Schedule. In particular, it will need to be considered if the attorney or deputy has valid and applicable powers to make this decision, and if the deprivation of liberty authorisation continues to be necessary. That means that in the event of such a conflict, the authorisation ceases to have effect. I hope that provides reassurance to the noble Baronesses on that point.

The noble Baroness, Lady Tyler, focused particularly on fluctuating capacity. I agree that an authorisation should not necessarily cease to have effect if a person’s capacity fluctuates and there are short periods of lucidity. That is currently the case under the DoLS system and I can confirm that it will continue under the liberty protections safeguards. However, as the noble Baroness, Lady Finlay, brought to life, it is very difficult to define either “fluctuating” or “short”, particularly in legislation. For that reason, we do not think regulation-making powers are appropriate; we believe this would be better dealt with through a code of practice, which would allow for more detail and more regular updating but would also allow the use of case studies to bring examples to life. We plan to give much more detailed guidance in the new code of practice, and I reassure noble Lords that we will be working with the sector in order to produce it.

Amendments 56 and 58 from the noble Baronesses, Lady Barker and Lady Tyler, relate to the thorny issue of the interaction between mental health and mental capacity legislation. They would mean that an authorisation had effect in relation to arrangements that were not in accordance with mental health requirements. As noble Lords know, mental health requirements are conditions placed on Mental Health Act patients living in the community. Currently, DoLS authorisations no longer have effect if a person is subject to arrangements or conditions under the Mental Health Act and that authorisation would be in conflict. This means that the terms of a DoLS authorisation cannot conflict with those of, for example, Section 17 leave of absences. The Bill has been drafted to reflect the interaction that currently exists between the Mental Health Act and the Mental Capacity Act.

The review of the Mental Health Act has been mentioned in this debate. The review, chaired by Sir Simon Wessely, has been considering, among other things, the interaction between these two pieces of legislation. I know the noble Baroness, Lady Barker, has sincere concerns about the nature of that interaction and about why we are bringing forward this legislation now. My short answer is that urgent reform is needed for the reasons that we have set out, including the quotes that I have given. The contribution from the noble Baroness, Lady Meacher, was helpful, and I have put in my notes that I need to speak to Sir Simon Wessely myself to understand his perspective. However, if I have understood correctly, regardless of the timing of his report, the process of implementing his proposals will take some time to do properly. In our view, it is not right to wait until that has been perfected before we try to deal with many of the issues under consideration in the Bill in the light of the current inefficiencies of the DoLS system. It is for that reason that we want to push ahead. As I have said, I will take it upon myself to speak to Sir Simon Wessely and get a real understanding of his expectations on timing, and to try to understand from his point of view the scale of the interaction between these two pieces of legislation so that we really know what is at stake.

I think the noble Baroness herself said that the amendments are essentially probing. She will know that the effect of them would be that two authorisations could be live at the same time. I am confident that that is not what she is proposing, not least because it would have the perverse effect of requiring people to be in two places at once, so I know she was using this as an opportunity to discuss this question. As I said, it is important that we move ahead for the reasons that we have discussed, notwithstanding that the Government will of course consider incredibly carefully the findings in Sir Simon Wessely’s report and what action is required to implement his recommendations.

On a couple of occasions the noble Baroness, Lady Barker, referred to the consideration of harm to others. I am told that harm to others can be considered under the current DoLS system, so what is proposed is not a change from the current system. However, I will pick that point up with her offline so that we can really get to the bottom of it and ensure complete clarity to a degree that satisfies her. I hope that on that basis, the noble Baroness feels able to withdraw the amendment, and I look forward to discussing more of these issues throughout the evening.

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Moved by

[Baroness Thornton]

58A: Schedule 1, page 15, line 12, leave out from “of” to end of line 14 and insert “12 months or less.”

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[Baroness Thornton]

The amendment would reduce the maximum time for which an individual can be held in detention without renewal from three years back to 12 months. The Bill would allow responsible bodies to renew an authorisation of deprivation of liberty in some cases for up to three years, while simultaneously reducing the safeguards that a renewal process would require. The amendment would shorten that three-year period to a maximum of 12 months.

Why is that important? Tripling the potential length of an authorisation period to three years creates a stark difference between the Mental Capacity Act and the Mental Health Act, apart from anything else, and moves away from best practice in other countries. Paired with the new LPS renewal process, which weakens safeguards designed to prevent lengthy detentions, a three-year authorisation will be likely to face legal challenge.

At its core, the new LPS system is intended to safeguard vulnerable people who have been deprived of their liberty on mental capacity grounds. The possibility of a three-year period of detention with limited safeguards gets the balance wrong between safeguarding vulnerable individuals and the desire to reduce the bureaucracy of the system.

Strasbourg case law confirms that a lawful deprivation of liberty for the purposes of Article 5(1)(e) of the ECHR must include both “limits in terms of time” and “continuing clinical assessment of the persistence of a disorder warranting detention”. Therefore, in order to comply with Article 5, any system must contain, first, a provision for the termination of the authorisation after the maximum time has expired and, secondly, an ability to terminate an authorisation before the time limit has expired if the deprivation of liberty is no longer necessary.

A three-year renewal limit is likely to pose problems for responsible bodies, especially in cases concerning conditions such as learning disabilities, acquired brain injuries and other non-degenerative mental impairments. The courts are likely to intervene to interpret those paragraphs concerning renewals—paragraphs 27(a)(ii), 28(b)(ii) and 29(1)(b)—as narrowly as possible. Capacity assessments are time specific, and a three year-old capacity assessment cannot be relied on as accurate evidence for detention. Therefore, we propose to reduce the three years to 12 months.

It is notable that a 2017 paper comparing mental health legislation in five different jurisdictions—Canada, Australia, Scotland, the Republic of Ireland and England and Wales—states that renewal orders vary in different jurisdictions,

“with the time periods for subsequent orders being longer in duration up to a maximum of 12 months, except in Ontario (3 months) and Victoria (6 months)”.

The Law Commission states that a three-year period should be considered only in the context of robust safeguards and constant review. Given the weakening of the safeguards throughout the rest of the Bill, it would be inappropriate to triple the length of time for which an authorisation can last.

In his opening remarks on the Bill, the Minister stated:

“It is essential that the system afford the necessary protections for the most vulnerable people”.—[Official Report, 16/7/18; col. 1061.]

The Bill as currently drafted would in this respect not deliver that protection. I beg to move.

[Baroness Finlay of Llandaff]

My Lords, I have three amendments in the group designed to remove any ambiguity about authorisations, in that an authorisation would fall if it partly fell—in other words, if the person’s condition had either improved or changed to such an extent that the plan in place was no longer applicable, even in part, that would warrant a complete review. I accept that it would have to be a light-touch revision, because some things might not have changed, but I am not comfortable with simply allowing it to be reviewed and people to say that these parts of the condition no longer apply.

Amendment 58C is to stress the need for evidence to be supplied to support statements. I hope that the Minister will be able to provide me with some assurance. That evidence might come from photographs, video recordings of behaviour or whatever. That may be quite different to the written word. I worry that one person’s observed written word may not adequately portray a picture, particularly where the cared-for person has become withdrawn. Someone might interpret that as their being compliant, when actually they may be deeply unhappy. A broader direct recording of the person could be helpful.

I tabled Amendment 62A because I was concerned that the care home manager might be in the process of arranging for adaptations to be made to meet the cared-for person’s needs in line with that person’s wishes and feelings, and that the Bill’s wording does not provide enough flexibility to consider the arrangements to meet the individual’s needs.

[Lord O'Shaughnessy]

I thank the noble Baronesses for tabling their amendments about renewals. I deal first with Amendment 58A, moved by the noble Baroness, Lady Thornton, which, as she said, would have the effect of meaning that authorisations cannot be renewed for longer than 12 months. As she pointed out, this would go against the Law Commission’s recommendation, which was that there could be circumstances under which renewals took place for up to three years, particularly following an initial review after up to 12 months and if it was unlikely that there would be a change in the person’s condition.

These three-year renewals are in place so that those who are in a stable condition and unlikely to recover are not subjected to annual assessments. The Bill does provide the safeguard—referred to by the noble Baroness—which ensures that an authorisation would need to be reviewed if there is a change. We would also want to make sure that there are appropriate reviews of arrangements when annual reviews under the Care Act take place. It would be up to the responsible body to set review periods. In care home settings, the care home manager must report to the responsible body on any reviews that have been carried out. As the Bill stands, there are significant safeguards to prevent abuse or lack of care of the vulnerable person.

All that being said, I know how strongly noble Lords and stakeholders feel about this issue. The noble Baroness, Lady Thornton, made a valid point about aligning the review process with the terms set out under the Care Act. I would like to give further thought to this, particularly in the context of the discussions which will be taking place about the proper role of the care home manager. There is clear concern about a proper system of oversight and regular review where responsibility has been devolved to the care home manager. If the noble Baroness will allow me, I will follow that up after this debate.

Amendment 58B, tabled by the noble Baroness, Lady Finlay, considers an authorisation ceasing to be renewed if it has lapsed wholly or in part. We will want to give further consideration to that. As discussed earlier in Committee, there are circumstances under which one might be happy for an authorisation to continue after a very minor change. That might be the proper process to align this to, and I want to give further thought to this.

Amendment 58C asks that, when deciding whether to renew authorisations in care home cases, responsible bodies should consider other relevant information, as well as that provided by the care home manager. I can confirm that the Bill does allow responsible bodies to consider information other than that provided by the care home manager. That would, inevitably, be in other formats too. We will set out more detail on that in the code of practice.

Amendment 62A would add the word “arranging” to the scenarios in which the care home manager was required to notify the responsible body that an IMCA should be appointed. The amendment intends to make sure that that happens at the earliest stage, including when the assessments are being arranged. That is what the word “proposing” in the Bill achieves. We are satisfied that the language currently in the Bill means that care home managers would be looking at this issue when they are beginning to propose an authorisation, which is the earliest point at which planning for, arranging or bringing together the assessments would take place. I would be happy to demonstrate what underpins our belief that this is the case. I do understand what the noble Baroness is driving at; it is something which we are trying to achieve.

On that basis, I hope that the noble Baronesses are willing to withdraw or not move their amendments.

[Baroness Thornton]

I thank the Minister for his answer. I am encouraged that we are going to continue the discussion on this issue. Apart from anything else, I will need quite a lot of convincing that the Bill provides the right kind of protections to allow a period of three years, as currently stated.

On the amendments tabled by the noble Baroness, Lady Finlay, I was reminded when reading the letters the Minister has written to noble Lords, and the record of the previous two days in Committee, that we need to clarify the meaning of “care home manager”. Or is it “care manager”, an expression which he has also used? I do not want an answer to that now, but I put it on the table as one issue which we need to clarify in our discussions and in the Bill. I beg leave to withdraw the amendment.

Amendment 58A withdrawn.

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[Lord Hunt of Kings Heath (Lab)]

My Lords, I want to follow up the remarks of the noble Baroness, Lady Finlay, by referring to the recent CQC annual report, which had a section on the implementation and practice in relation to DoLS. The report laid out a number of key concerns about care home and hospital providers that are actually using DoLS at the moment in relation to the Act itself. There is a huge variation in practice and this variation is commonly linked with a basic lack of understanding of the law, which is complex and difficult to understand. The report says that the result is that there are unnecessarily restrictive practices that can result in the loss of freedom and, in some cases, the loss of people’s human rights. The problems are reinforced by limited staffing levels, a lack of time to complete applications and inadequate staff training.

I am aware, of course, that the intention of this Bill is to streamline some of those procedures, although I think that, because the safeguards have been drastically reduced, we might be landing ourselves in future problems once the courts begin to hear some of the cases that will arise. The point is that it is quite clear that, at the moment, effective training is not taking place among many of the organisations involved in the operation of DoLS. The risk is that the same will happen in relation to the new legislation. We need some guarantees that there are going to be resources and a concerted training programme to ensure that we mitigate that impact.

[Baroness Thornton]

I will add to the questions that have already been asked of the Minister: who is going to pay for this? Training is very expensive and I was waiting for the noble Baroness, Lady Jolly, to ask that question but she did not, so I am asking it. As I recall from the impact assessment, I am not sure that there is a large sum of money in there for the amount of training that might be necessary to ensure that this Bill is properly enacted.

[Lord O'Shaughnessy]

I thank the noble Baroness, Lady Finlay, for tabling these amendments and precipitating this discussion. I will move straight on to the substance of the amendments. Amendment 61 provides that local authorities must make arrangements for a named person to be in charge of training and revalidation of approved mental capacity professionals and that local authorities must make arrangements for contracts with neighbouring local authorities and health bodies as required.

On the issue of approvals and training, the Bill is clear that local authorities must approve individuals to become AMCPs, and regulations under paragraph 33 will make provision around training, qualifications and other eligibility criteria. The question of what kind of training there should be and who pays is something that we discussed at some length on the last Committee day. That was more in relation to care home managers, which was primarily the focus of the questions of the noble Lord, Lord Hunt. The same read-across applies to AMCPs as well. On that occasion, I committed to bringing forward more details of what the training would look like. I also confirmed that, in England, Health Education England and ADASS would be responsible for working with Skills for Care, and Social Work England. Those are the bodies that would be responsible for overseeing and designing the training. The noble Baroness, Lady Jolly, asked about the rights of individuals. Of course, that would be the centrepiece of any training programme to make sure that those rights are properly respected.

On the specific question about local authorities naming an individual, I say that the Bill does not prevent them doing so. It is something that they are able to do and, in our view, it does not need to be set out in primary legislation. There is no such requirement for best-interests assessors or approved mental health professionals, I understand, and that has not caused any difficulties in practice. To that extent, we can mimic the arrangements in place there.

Making arrangements with other local authorities is again not precluded by the Bill. Clearly, that is something that local authorities will want to do, depending on the arrangements they have commissioned in care across different authorities. I can confirm that we will provide guidance on this in the code of practice.

Amendment 61A adds to the criteria that must be met for a person to become an AMCP. They must be,

“a registered professional, with a minimum of three years clinical experience”.

A list sets out whom that could include; that list has been added to by one tonight, which in some senses exemplifies the nature of the problem. I completely agree with the noble Baroness: we need to set out not only the kind of professionals but the kind of qualifications and experience. There has to be a balance and a mix between all of those. That will be set out in regulations. The noble Baroness, Lady Barker, asked about the proper place to set out the rigidity or robustness, and we believe that the appropriate place would be in regulations, which provide a degree of flexibility that would not apply if we enshrined this in primary legislation. That is why we are proposing the approach of defining the groups that should be acting as AMCPs.

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[Baroness Barker]

My Lords, this is again a rather fundamental indicator of some of the things that are badly wrong with the Bill. The words “best interests” appear in it three times, and twice they are used in relation to a care home manager being able to restrict access to advocacy. As the Bill stands, referral to advocacy is controlled by a relevant person, either the responsible body or the care home manager, and an advocate must be appointed if a person has capacity and requests an advocate—that is quite rare, and I have to say that under the Bill it would be something of a miracle, because they do not have the right to information about not only their current circumstances but about other less restrictive options. The Minister’s statements on information last week, when he referred to GDPR, were so strange that it has taken me a considerable time to work out that he had completely misunderstood that under the current system people have a right to information. They have the right not to request information but to be provided with information, which this amending Bill severely restricts.

However, the second condition is by far the most worrying. Somebody can request an advocate if the person lacks capacity and the relevant person is,

“satisfied that being represented and supported by an IMCA would be in the … person’s best interests”.

I invite noble Lords to think what would have happened if those words had been in law during Winterbourne View. That is why I am quite happy to use the word “shocking” about the Bill, as this is unacceptable. My amendments would try to get rid of the abuse of the term “best interests” to limit vulnerable people’s access to support. The Minister knows that under the DoLS system, by and large, if somebody requests an advocate, it is up to the relevant body to try to do their best to find one, or that they find an appropriate person. I refer to the point made by the noble Baroness, Lady Finlay, that under case law at the moment, local authorities have the right to override if an appropriate person is not doing their job properly on behalf of the person. That too will be undermined by the Bill.

The Minister will also know that if somebody has no relatives and nobody else in the world—they are “undefended”, to use that rather archaic but useful and clear term—they have an automatic right to advocacy. I know that much will be made of advocacy being expensive, advocates being a resource that is not readily available, and that people who do not need advocacy will be unnecessarily interviewed. I am quite happy to talk at length to the Government about ways in which advocates or advocacy resources could be better used and better targeted—but absolutely not by drawing it like this, putting this sort of hurdle not even in a code of practice but in a Bill.

[Baroness Thornton]

My Lords, we on these Benches very much agree with the purport of these amendments, which again bring to light some of the ambiguities in the Bill and some of the rights that are not properly respected by it. Over the next period the Minister will not only need to give us a theoretical answer but have to answer things such as the question about Winterbourne View, and look at the hard examples of real experience which some of us have been receiving in our postbags over the last month. We will need to return to this over the next few weeks, and possibly even at the next stage.

[Lord O'Shaughnessy]

I am grateful to all the noble Baronesses for their amendments and for speaking in the debate on this group. Let me begin with a statement of principle. I accept the challenge from the noble Baroness, Lady Thornton, that we need to move from principles to practicalities, or in our case to the appropriate legislation. There is genuinely no attempt in the Bill to restrict people’s access to independent advocacy. As has been clearly voiced, not only in this Chamber but elsewhere, there is a concern that that will be the effect of what is proposed, and that is something that we need to deal with. But let me say at the beginning that that is not the intention. It must be the case that anybody who needs support to navigate these difficult and complex situations must be able to find the right support for them. I will explain why the Bill is as it is in a moment, but let me at least give that statement of principle at the beginning.

I will deal now with the specific amendments in this group. Amendments 63 and 64 aim to ensure that the Bill is robust on the appointment of the IMCA. I completely agree that it is vital that the care home manager notifies the responsible body that an IMCA should be appointed. That is required by the Bill. However, I know that there is great concern about the impartiality of this person and a requirement for strengthening in this regard. It is also our position that a responsible body will be able to appoint an IMCA if there is a request by, for example, a family member or the person themselves, or if there is a disagreement with the notification given by a care home manager. I am considering how we can make the Bill clearer in that regard. As we home in on the issue of the incentives for the care home manager to follow best practice, as we would want, I am aware that we need to do more work on this to get it right.

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Debate on whether Clause 2 should stand part of the Bill.

[Baroness Thornton]

My goodness, we are back in the Bill, out of the appendix. I am formally moving that Clause 2 do not stand part. However, I will address my remarks to the two amendments in my name in this group. They concern advance consent. This amendment comes from Clause 6 of the Law Commission’s draft Bill, and inserts two new sections into the Mental Capacity Act: advance consent to certain arrangements, and the effects of advance consent. These sections provide for a person to consent in advance to specific arrangements to enable care and treatment that would otherwise amount to a deprivation of liberty.

To give advance consent, the person must have the capacity to consent to specified arrangements being put in place at a later time that otherwise would be considered deprivation of liberty. They must also clearly articulate the arrangement to which they are consenting. Provisions in this amendment relating to advance consent are similar to those relating to advance decisions to refuse treatment which appear in Sections 24 to 26 of the Mental Capacity Act.

I am very grateful to the noble Baroness, Lady Murphy, and my noble friends Lord Touhig and Lord Hunt for supporting this amendment, and I think it is important that we probe this particular issue. On previous Committee days and in discussions with stakeholders, one of the recurring sentiments was that the well-being of the cared-for person should be at the front of this legislation, and it seems that advance consent is definitely a crucial issue in putting the cared-for person at the heart.

Amendment 85 concerns unlawful deprivation of liberty. Again, this amendment comes from Clause 7 of the Law Commission’s draft Bill and would insert two new sections into the Mental Capacity Act on unlawful deprivation of liberty and on proceedings and remedies. These sections would provide a route for an individual deprived of their liberty in a private care home or hospital to seek redress where proper authorisation under this Bill and the Mental Health Act, or an order of court, has not been obtained. This amendment seeks to define the private care provider. Again, we have been concerned about how the Bill will be applied to those in a private care setting or hospital. It seeks to probe how they should be affected by the Bill.

[Baroness Murphy]

My Lords, Amendment 84, in the name of the noble Baroness, Lady Thornton, is possibly one of the most important amendments we have tabled to the Bill. It has become so much more important over the last 20 or 30 years to try to encourage people to make decisions in advance about what should happen to them and to encourage them to think about what will happen in the event of things going wrong—to think about things such as lasting powers of attorney and advance decisions on mental health services. I understand that Sir Simon Wessely will recommend some changes that are very similar to this to go into the new mental health legislation. It would be good, bearing in mind our previous discussions, if we could feel confident that the same sort of approach was being taken in this Bill.

Advance decision-making in legislation has proved quite difficult to implement, because you have to have a widespread campaign of understanding how people can make these decisions. It also has to have the individual making the decision accept that things will happen to them that they are not expecting, which is sometimes very difficult. That is why it so difficult to get people to sign up to insurance against long-term care; they simply do not believe that it will ever happen to them. It is very difficult to get these bits of legislation implemented and widespread, but we have to start somewhere. This is such an important piece to try to get into a Bill, to start people thinking about their future and what is acceptable. This would be a very important thing for the Bill.

I would also like to see Amendment 85 implemented. It is something that the Law Commission had in originally. I am not quite sure why it came out. It sort of just disappeared in the transcription somewhere. It is an important safeguard. We tend to forget all those Victorian cases a couple of hundred years ago when people were quite regularly held in circumstances against their wishes and unlawfully deprived of their liberty. It is as well to be reminded that it can, and probably does, still happen quite frequently. To have something on the statute book would be helpful, so I support the two amendments.

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[Lord O’Shaughnessy]

I am grateful to the noble Baroness, Lady Thornton, for introducing this clause stand part debate. We had a chat earlier, so I shall not formally respond to her but instead deal with the amendments as laid, if that is all right with everybody. Clearly, these are very important issues that need to be dealt with properly.

Amendment 84 would allow individuals to provide advance consent to arrangements enabling care or treatment that would otherwise amount to a deprivation of liberty. As noble Baronesses have commented, the Law Commission recommended that provision should be made in the Bill to allow this. This would mean saying that cared-for people entering certain settings, such as hospitals and end-of-life care, where the arrangements are predictable and time limited, would not be required to undergo additional assessments if they needed to be deprived of their liberty. In the Government’s response to the Law Commission, we agreed that people should have choice and control over future decisions being made on their behalf, but we said that we needed to look at the detail of this specific proposal. I understand that there is enthusiasm among some noble Lords for such a recommendation, particularly, as has been said, as a way of alleviating unnecessary assessments for those in palliative and end-of-life care.

On palliative care, before I get on to more general concerns, I think it is important to note that the Government have issued some guidance about consent in the context of palliative care in the last few weeks of life. I realise that this talks only about one part of the time period that we might be talking about. The guidance says that if an individual has capacity to consent to arrangements for their care at the time of their admission, or at a time before losing capacity, and does consent, this consent would cover the period until their death, hence there is no deprivation of liberty. However, the guidance is also clear that this consent would no longer be valid if significant extra restrictions were put in place, after this point, to which the person had not consented. So there is a situation that pertains to people right at the end of life and provides some opportunity for challenge if restrictions change.

If we extend that time period out, not just to weeks but to months and years, it has been brought to light in this debate that, while there is a desire to make sure that a person’s advance consent is taken seriously and given legal force, concerns have also been raised, not least by the noble Baroness, Lady Finlay, about extending the application in such a way that it could actually deprive people of their protections and human rights. These are clearly concerns that we need to take seriously.

Concerns have also been expressed to the department, in engagement with stakeholders, that the inclusion in statute law of advance consent to being deprived of liberty might imply that there is an expectation that people should have an advance statement of wishes in place, and that people may be pressured into making an advance statement. I take the point made by the noble Baroness, Lady Murphy, that in some ways planning for the future may be a good thing but, equally, we do not want to force people to plan for the future when their desire is not to. We protect the right of people to make bad decisions; that is an important part of a person having a sense of agency and autonomy. Concerns have been expressed that that would be put in danger and people would feel pressured to do something that they might not wish to do.

Clearly, the Law Commission made this recommendation with highly laudable aims. However, we have concerns and are not yet convinced of the merits of the amendment. We have tried to deal with some of the issues around integrating planning through the creation of a system based on the production of a care plan. We have talked about the inclusion of a statement of wishes. I would like to know more about the proposal of the noble Baroness, Lady Barker, about advance statements of wishes. I would like to follow that up and understand it a bit better. The process we are envisaging would allow the inclusion of advance decisions to refuse treatment as part of future care planning. That is not affected by what we are discussing here but that would be allowed. We are not convinced of the merits of the amendment—indeed, we have some concerns about the implications of it—but I would be keen to understand a bit more about previous discussions of this topic and whether there are other ways to provide that sense of agency for the person who will be cared for without producing undue pressure on them or legal force in a way that would go against their interests and, in legal terms, their human rights.

Amendment 85 would create a new civil court remedy against some private care providers, including non-NHS hospitals and private care homes, if they have deprived someone of their liberty unlawfully. Again, this provision was proposed by the Law Commission. However, we do not believe that a new legal remedy is required. There is already an ability to seek damages under the Human Rights Act on the basis of a breach of Article 5 and usually Article 8. This is available in private cases, where a private care provider is depriving a self-funder of their liberty unlawfully. A remedy could be sought against the public authority responsible for the deprivation. Obviously, we need to hold private care providers to the same standards that we hold public care providers to. There are already a number of mechanisms that allow for this, and the law provides for them. There is the criminal offence of false imprisonment, as well as the existing law of false imprisonment for civil claims. So people can already bring legal action against private care providers.

On top of this, the Care Quality Commission in England and the Care Inspectorate Wales would also ensure compliance with the liberty protection safeguards. Clearly, they have a range of enforcement actions available to them that apply to the public and private sector alike. Furthermore, as commissioners, local authorities will—and do—have a role in ensuring that private care providers fulfil their legal duties. The Government believe that sufficient levers are already in place and that the creation of an additional civil route could increase care providers’ insurance costs at a time when, as we all know, we are working hard to make sure that there is funding in the system to provide adequate and good-quality social care to everybody who needs it.

I understand and agree with the desire to hold private providers to the same standards that we hold public providers to, but we believe there are existing remedies within the system and there is no need to require or implement new ones. On that basis, I hope the noble Baroness will not move her amendments.

[Baroness Thornton]

I thank the Minister for that detailed response and the noble Baronesses, Lady Murphy and Lady Barker, for their support. I did not intend to alarm the noble Baroness, Lady Finlay. I thought we might be veering into discussions the House has had on many occasions about advance consent for various things. I do not think we want to go there, but I was beginning to get the feeling of “Doctor knows best” when we were having that discussion.

I am not certain that the care plan works. The Law Commission had very good reasons for putting what are now Amendments 84 and 85 into the draft Bill that it brought forward, which were to do with the fact not that its people are lawyers but that it had consulted very widely with stakeholders and people involved in the care system. These are the conclusions that it came to, so I will read carefully what the Minister has said about this. Maybe we can include these amendments in our discussions and decide whether we need to pursue them further at the next stage of the Bill.

Clause 2 agreed.

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Moved by

[Baroness Thornton]

83: After Clause 2, insert the following new Clause—
“Restriction on power of attorneys and deputies
After section 29 of the Mental Capacity Act 2005 insert—“29A Deprivation of libertyNothing in this Act authorises a donee of a lasting power of attorney or a deputy to consent on behalf of a person to arrangements which give rise to a deprivation of that person’s liberty.””

[Baroness Thornton]

Amendment 83 concerns the power of attorney and restrictions on it. This amendment comes from Clause 3 of the Law Commission’s draft Bill. I said right from the outset that in Committee we would test the Bill against those issues that the Law Commission had decided to put into the draft Bill and ask why they had been dropped. Many of them are absolutely at the heart of the safeguards that are necessary for vulnerable and cared-for people. The amendment would insert a new section into the Mental Capacity Act, which expressly prevents,

“a donee of a lasting power of attorney or a deputy”,

appointed by the Court of Protection from consenting on a person’s behalf,

“to arrangements which give rise to a deprivation of … liberty”.

This is the position in the current law but this statement makes it explicit. I beg to move.

[Baroness Finlay of Llandaff]

My Lords, I have three amendments in this group, which are there simply because the topic is lasting power of attorney. I do not have an argument with Amendment 83 at all. It is absolutely right that the person’s best interests must be considered and that someone cannot just give consent on their behalf.

The amendments that I have tabled are designed to solve three current problems that we have with lasting powers of attorney. The first, Amendment 83ZA, relates to the identity documentation that somebody must produce to show that they are the donee of a lasting power of attorney. These are bulky papers which have to be registered and stamped by the Office of the Public Guardian, and then produced. For many people who are donees, those papers may be at their home; that may be a long way away from wherever the cared-for person—the donor—is. When that donor has lost capacity, the donee can either carry the sheaf of papers around with them all the time or just hope to be going via their home filing cabinet to pick them up before they go to see the person.

I hope that we might move toward something a bit more modern in electronic identification—something like the driving licence, which is a small card on which you can have a registration number. You could also have a picture of the donor as well as one of the donee, which would allow a second layer of recognition. That would also, I hope, focus the mind on the fact that the donor must be at the centre of all the decision-making. Its validity could easily be checked against a number, so that if it had been updated—and for some reason the previous form had not been returned—a simple check with the Office of the Public Guardian might verify its status.

Amendment 87G is designed to solve another problem that has been arising: that a person may appoint several people to hold their lasting power of attorney in the event that they lose capacity. However, as time goes on it has happened that they lose confidence in one of those people, for whatever reason. Maybe there is a dispute in the family or they feel that the person is no longer able to take a decision in their best interest, for whatever reason, and they want to revoke having that person as a donee. The problem is that it is quite a complicated process and they have to go back to square one. This amendment is designed to make it much easier for them to state that they no longer want one person listed but they want the others to remain. I have discussed this with the Public Guardian, who sees it as a problem at the moment that the revocation of a donee is difficult.

Amendment 87E arises out of a problem which is also beginning to occur. I should declare an interest here because it is a problem that is close to my heart: a member of my family has severely impaired capacity and her spouse, who is the only person who can act on her behalf, is becoming older. There is concern about what happens if he cannot act on her behalf and take decisions. At the moment, it is only when the donee loses capacity that others can go to the Court of Protection for a court-appointed deputy. The aim of this amendment is to allow the donee to make some provision so that, in the event of their losing capacity—either temporarily if they have a fall with a fracture, a head injury or have pneumonia, or permanently so they become frail and possibly demented—they can make provision ahead of time in the cold light of day. The alternative is the family, with one family member who lacks capacity and the person who was taking care of their affairs now acutely ill and in crisis, having to go to the Court of Protection to get a court-appointed deputy, which can take some time.

I have discussed this with the Court of Protection, which wants to be helpful in moving things forward, and with Alan Eccles, the Public Guardian, who is extremely sympathetic to the problem and can see that people who took out a lasting power of attorney, or prior to that an enduring power of attorney, and never expected to live as long as they have could now find that the donee is at greater risk of becoming frail than they anticipated. Donors are outliving their prognosis not just by months, but by years and possibly decades.

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[Lord O’Shaughnessy]

I am grateful to the noble Baronesses and the noble Lord, Lord Hunt, for tabling amendments in this group. I am very aware of the complexity of this issue. For a lay person such as me, some of the terminology can be confusing. I will do my level best to be as clear as humanly possible, but if I fail in that endeavour I will write to noble Lords and explain better what I am attempting to explain now.

The effect of Amendment 83, as the noble Baroness, Lady Thornton, said, would be to confirm in law that a donee of a lasting power of attorney or a deputy appointed by the Court of Protection was unable to consent on a person’s behalf to a deprivation of liberty. If they could provide such consent, the person would not be considered to be deprived of their liberty and no safeguards would need to be provided.

The Law Commission report stated that it was already the position in law that a donee or deputy could not consent to a deprivation of liberty. We confirmed in our response to the Law Commission’s report that the Government agreed with its view on the current legal position, and the Bill does not change the current situation. While the Bill creates a duty to consult with any donee of the lasting power of attorney or a deputy, it does not enable a donee or deputy to consent to the deprivation of liberty on behalf of the cared-for person. In other words, under this Bill the cared-for person would still be deprived of their liberty in those circumstances and would still need to be provided with safeguards to satisfy Article 5, which is of course the whole purpose of DoLS and liberty protection safeguards. In that sense the amendment, with which we agree, would serve only to duplicate existing legislation and is not necessary. I hope I have provided an adequate explanation to noble Lords, but obviously I am willing to set out in more detail exactly why we believe the current situation is not changed by the Bill as it stands.

I turn to the amendments in the name of the noble Baroness, Lady Finlay. Amendment 83ZA would require the Office of the Public Guardian to provide documentation, which may be in electronic form, to identify the donor and donee or donees of a lasting power of attorney and to recall the documentation if the donee’s power is revoked. As the noble Baroness pointed out, this is designed to make it easier for attorneys to provide proof of the existence of a registered LPA. It is right that there ought to be a robust system of proving that there is a valid power. My understanding is that the Ministry of Justice and the Office of the Public Guardian are actively considering how to offer a digital means of providing evidence of a valid LPA, and we expect to bring forward proposals in due course. I am happy to pursue that further with colleagues in that department and that office to understand greater details of their plans and to share those with noble Lords if they are forthcoming, which I hope that they will be.

Amendment 87E, in the name of the noble Baroness, Lady Finlay, would allow the donee of a lasting power of attorney to nominate someone to replace them if they were no longer able to fulfil their duties—I think that means if the lasting power of attorney was no longer able to fulfil their duties—while Amendment 87G would allow a replacement attorney to be nominated by the donor at the time of registering the LPA to take over the power if the donor decides to remove the power from the donee.

I do not need to reiterate to noble Lords just how critical it is to get the law and the rules in this area right; as the noble Baroness, Lady Watkins, pointed out, the rules around this would not apply only to this Bill. It is worth pointing out that there is provision in the original Mental Capacity Act to allow a person making a lasting power of attorney to nominate a replacement in the event that their attorney is unable to continue, but I think the point that the noble Baroness, Lady Finlay, was getting at is that there is a slight chicken and egg situation here: at the point where they no longer have capacity but the person whom they have previously appointed is no longer able to fulfil their role or the cared-for person no longer wants them to do so, they cannot go back in a time machine and appoint someone else—in other words, they cannot know what they do not know. I have just made things really clear by getting all Donald Rumsfeld about it all.

Having said all that, I want to consider if there is a way of unlocking that paradox, but clearly the implications of that would go well beyond the remit of what we are discussing here. I do not want to make any promises that it is not in my power to keep. I would appreciate the opportunity to explore this further so that we can consider how to give the donor more opportunities to have a sense of choice and agency as they think ahead to the future. I would have thought that we must be able to provide for that without creating extra complications. I look forward to taking that up with the noble Baroness and other noble Lords who are interested in the topic. On that basis, I hope the noble Baroness will feel able to withdraw her amendment.

[Baroness Thornton]

I thank the Minister for that detailed answer. As usual, the noble Baroness, Lady Finlay, has raised some interesting challenges. In my family, someone who had enduring power of attorney died at the point they were needed. We were in a ridiculous and complex situation—resolved by good will, but the law did not help us. This is therefore a serious matter.

I understood what the Minister said about the power of attorney, and I will read his response. It sounded to me as though it was probably reasonable, so I beg leave to withdraw the amendment.

Amendment 83 withdrawn.

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Moved by

[Baroness Thornton]

83B: Clause 3, page 3, line 33, at end insert—
“21ZB Presumption of P giving evidence(1) This section applies where an authorisation under Schedule AA1—(a) has effect, or(b) is to have effect from a date specified under paragraph 22 of that Schedule.(2) P shall be presumed to give evidence in Court of Protection proceedings.(3) This presumption may be rebutted, having regard to P’s rights, including by evidence that P—(a) is not competent to give sworn evidence; or(b) does not wish to provide evidence (in whichever form) to the court.(4) Evidence from P shall be secured in any form that the court and the parties consider appropriate having regard to P’s circumstances and may include the following—(a) sworn evidence given orally in court;(b) unsworn evidence given orally in court;(c) unsworn evidence given outside of the court;(d) a written statement;(e) pre-recorded evidence.(5) The appropriate authority may make regulations outlining the measures that will be available to support P to give evidence in proceedings.”

[Baroness Thornton]

The Minister will be familiar with this amendment because it stems from Inclusion London, which drafted it. I know that it has written to him about it. It is run and controlled by disabled people, is very concerned about the Bill and wants this issue discussed.

The amendment concerns ensuring the effective participation of P in the Court of Protection proceedings. It gives P the presumed right to give evidence and sets out a number of ways in which that might happen. The organisation has copied me in to a letter to the Minister. It writes that one of the key challenges to date has been securing P’s meaningful participation in Court of Protection proceedings, something acknowledged in the 2018 Joint Committee on Human Rights report, The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards. Participation is an important issue for a number of reasons, including that it is more likely to place the person at the centre of the decision-making process and may change the outcome of the case. Research suggests that P rarely participates in or gives evidence in proceedings. In the light of the Government’s emphasis on providing protection for people who may lack capacity, it is asking us to consider the amendment.

This seems a reasonable point, and I shall be interested to hear what the Minister has to say in response. I beg to move.

[Baroness Meacher]

I will speak to Amendment 87C and apologise to the Committee for being unable to remain in the Chamber earlier—I had two commitments that I had to fulfil. I emphasise that it is a probing amendment; it will certainly need rewriting at Report if we bring something back. I thank Godfred Boahen of BASW, whose briefing was an enormous help in preparing my remarks.

Our aim is to stimulate a debate about the processes to deal with deprivation of liberty issues which arise in domestic settings. There is a case for enhancing the assessment processes in those situations. As it stands, the Bill makes no mention of people in domestic settings where deprivation of liberty is at issue. It is not clear—to me, anyway—what the Government have in mind and I hope that the Minister will be able to clarify the position. The Bill leaves vulnerable individuals in domestic settings where there is an issue of deprivation of liberty with no judicial protection, except through an appeal to the Court of Protection, a process which is onerous, costly, stressful and slow. That also leaves this group of people without access to a mental capacity professional in the event of an objection to the proposed care plan. The amendment assumes that, where a deprivation of liberty arises in a domestic setting, this would be considered, as now, under either the care planning or the safeguarding provisions of the Care Act 2014, but with two important reforms, which I will come to. Thus domestic settings would not come under the processes set out in the Bill.

Before referring to the proposed reforms, I need to clarify the two key processes involved under the Care Act, or the reforms would not make a lot of sense to anybody. First is the prospective model, as proposed by the Law Commission, when a deprivation of liberty is considered during care assessments and planning. The care planning processes apply here. During a Care Act assessment of needs, professionals will ascertain the likely impact of a care plan on the liberty of an individual, whom I will call P. The idea is that, in some cases, the state has prior knowledge that a deprivation of liberty will occur and has therefore taken the necessary steps to authorise it alongside establishing conditions to safeguard P’s human rights. This could be achieved through an amendment to the Care Act guidance, not a legislative change.

The great attraction of this approach, as the Law Commission recognised, is that the safeguards are implemented in a way that minimises intrusion into private and family life. The Law Commission argues that:

“In most cases arrangements could be authorised in an unobtrusive and straightforward manner through a care plan and without a perception of State intrusion into family matters”.


In domestic situations and with the involvement of professional local authority employees in organising and undertaking the care planning, only where the care plan is contrary to the wishes of P would the involvement of the mental capacity professional be warranted. At present, the Bill does not make it clear that the MCP would be brought into domestic settings in any circumstances. This is one of the two areas in the Bill that need clarification. I am impressed that the Law Commission thinks that this approach strikes an appropriate balance between the rights of the person to be protected, and the rights to private and family life under Article 8.

The second model for the deprivation of liberty in domestic settings is the retrospective model, where the safeguarding procedures under the Care Act 2014 come into play. Under Section 42(1) of that Act the safeguarding procedures apply to an adult who satisfies three conditions, which I do not need to go into. The safeguarding process involves P from the very beginning. There are certain crucial points about these processes: their desired outcomes should be considered; professionals have to balance P’s capacity against their best interests and the public interest; and the safeguarding provisions draw significantly on the best-interests principle of the Mental Capacity Act. If deprivation of liberty is an issue, then the Care Act safeguarding provisions and the Mental Capacity Act best-interests principle can be applied to generate a care plan which safeguards P’s interests while providing care and protection.

Within the safeguarding provisions an independent advocate is appointed when appropriate. What is currently lacking is access to a mental capacity professional in the event that P has concerns about or objections to the care plan. An amendment bringing the MCP into safeguarding in domestic settings is needed to align people in such settings with those in others.

My last point relates to the requirement under the European Convention on Human Rights that if P is deprived of their liberty, they must have access to a court. I have already referred to the current arrangement for access to the Court of Protection as the only court route. I urge the Minister to consider seriously the possibility that mental health tribunals could be adapted to become mental health and capacity tribunals to include those in domestic settings where P is objecting to the care plan.

Mental health tribunals already consider whether and how their judgments and the conditions they impose on patients might amount to a deprivation of liberty. Additionally, they have experience of the issues involved in deprivation of liberty considerations in domestic settings. This would not be something outside their competence, and that is very important. It would be too radical to introduce something entirely different. Such tribunals are local and would be speedier, less costly and more accessible for families who are themselves often vulnerable. They are less imposing and therefore less stressful for those involved.

Consider the case brought to my attention recently of an 85 year-old woman looking after her 89 year-old husband, who had severe dementia. She felt she could only cope by keeping her husband in one room. The idea of taking that case to the Court of Protection just feels unreasonable. It certainly needs sorting out in some way, but not that way. In line with the estimated number of appeals to the tribunals, clearly, the number of tribunal members would need to increase. However, as well as having advantages for those involved, this reform would surely be less costly than the current Court of Protection process. I hope we can have a short but constructive debate today and that the Minister will meet us to discuss the best way forward. It might not be exactly what I have suggested, but we really need to think this through carefully. I beg to move.

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[Baroness Meacher]

I thank the Minister very genuinely for an encouraging and positive response. I recognise that this matter of deprivation of liberty in domestic settings needs to be addressed and that we need to have a conversation about exactly how it should be done. I also thank my noble friends Lady Murphy and Lady Watkins and the noble Baroness, Lady Barran, for putting their names to my amendment, albeit that it still needs a lot of work. I am grateful for their helpful comments, along with those of the noble Baronesses, Lady Jolly and Lady Barker. I look forward to discussions with the Minister and others.

[Baroness Thornton]

I thank the Minister for that helpful answer. The grouping is slightly odd, but I am pleased that the noble Baroness, Lady Barran, has joined in; I notice that she has been sitting in her place for the whole of our proceedings. We have had a useful discussion and I beg leave to withdraw the amendment.

Amendment 83B withdrawn.

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Moved by

[Baroness Thornton]

89: After Clause 4, insert the following new Clause—
“Compatibility with European Convention on Human Rights
So far as it is possible to do so, all provisions under this Act must be read and given effect in a way which is compatible with Article 5 (Right to liberty and security) of the European Convention on Human Rights.”

[Baroness Thornton]

This is the last amendment, and I will be very brief. It is quite appropriate that the last amendment we consider is about Article 5 of the ECHR, which is about the core of the Bill: people’s liberty and the deprivation of it. I have four things to say. The reason this amendment is so important is because it addresses the things that we have found lacking in the Bill which we feel need to be addressed. They are: the availability of information; advocacy and the fact that people need to have access to champions; representation; and the conflict of interest that arises when a detainer is required to assess a detainee. Particularly where a financial interest is in play, it is obvious that it has to be addressed if the proposals in the Bill are to be Article 5 compliant, which they need to be. That is the test that we need to apply to the Bill all the way through. I beg to move.

[Baroness Barker]

My Lords, I am glad that the noble Baroness has given us this opportunity to discuss a really important matter, albeit that it is late at night. I noted what the Minister said at various times throughout the debate about reliance on the code of practice. He will know that, as we have been trying to make clear all the way through the debate on the Bill, if some rights are not statutory rights in the Bill, then compliance is inn question. I rather suspect that the Bill that was presented to us was not compliant. I do not see how a Bill which, on the face of it, would enable somebody to be detained without being met and assessed by a professional person could be compliant.

There are a number of key matters which the Government are, at the moment, talking about putting into the code of practice—perhaps, possibly on a good day, into regulations—but which need to go back into the Bill. If they do not, the responsible body will not have the statutory responsibility to see that they are carried out. They are: the basis for the detention and the necessary and proportionate test and when that test applies; the role of IMCAs and access to appropriate persons; professional qualifications and training for people undertaking those pre-authorisation reviews; where an AMCP referral should be made; and the obligation to provide information to the person and their family about authorisation. All those things are important.

I say from these Benches that if we do not have considerable movement towards putting those things into the Bill, however briefly, the Bill will still be in trouble when we come to Report.

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[Lord O’Shaughnessy]

My Lords, this is a good way to finish our Committee proceedings. I thank the noble Baroness, Lady Thornton, and the noble Lord, Lord Touhig, for tabling the amendment, and I thank the noble Baroness, Lady Barker, for speaking to it.

Clearly, not only ought it to be the case that the Bill is compliant with Article 5 of the European Convention on Human Rights, but it is also important to make it clear, as I did at the point of the introduction of the Bill, that its provisions are compatible with Article 5. As noble Lords will know, and as becomes painfully clear when you become a Minister and you see your name on printed Bills giving these kinds of reassurances, that is a process that we need to go through before introducing legislation. Clearly, there are still concerns about whether the Bill can be improved in giving force, as the noble Lord pointed out, to the rights under Article 5. Nevertheless, it is my view that the Bill is compatible with the ECHR.

Furthermore, because of Section 3(1) of the Human Rights Act 1988, primary and subordinate legislation must be read and given effect to in a way that is compatible with convention rights. It is already the case that the Bill must be read and given effect to in a way that is compatible with Article 5. My concern with the approach here is therefore not so much one of repetition but one of partiality because it only talks about Article 5. There is therefore a risk that if we implied that this legislation had only to comply, or had a special duty to comply, with Article 5 of the convention rather than the whole convention, that would not reflect our responsibilities under the Human Rights Act. Indeed, it could downplay critical protections that exist in the ECHR, such as the Article 8 rights to family and private life. So while I understand the motivation behind tabling the amendment and using it as an opportunity to rehearse some of the desire to improve the actions that will safeguard the liberty and security of the person, I do not think it is right to put such a clause in the Bill precisely because the Government have a broad responsibility to ensure not only that the Bill is compliant but that it is read and given effect to in a way that is compatible with all convention rights.

I hope that has provided reassurance to noble Lords that our intention, and indeed our obligation, is to provide not only for those Article 5 rights but for all other rights that apply under the ECHR. I hope the noble Baroness will feel able to withdraw her amendment.

[Baroness Thornton]

I thank the Minister for that answer, and for his recognition that the reason for tabling the amendment at this point in the Bill was to allow us to say that these were the issues we needed to address, as the noble Baroness, Lady Barker, and my noble friend Lord Touhig outlined. I am pleased that the Minister has acknowledged that. I beg leave to withdraw the amendment.

Amendment 89 withdrawn.