Mental Capacity (Amendment) Bill [HL]

Lord Mackay of Clashfern Excerpts

Tuesday 26th February 2019 Lords Chamber

[Baroness Browning (Con)]

My Lords, I will be brief. I too had concerns about this definition when the original legislation went through pre-legislative scrutiny—it seems an eternity ago now. It does not seem to be any easier for my noble friend to put this in the Bill. But there are some concerns. I declare my interests as a vice-president of the National Autistic Society, which has written to me, along with other similar charities, to say that it has concerns, not so much on the substance but on the clarity.

As my noble friend has just pointed out, there are two areas here. One is the clarity of the legal definition which lawyers will need, and that is important. But also, as the noble Baroness, Lady Tyler, has said—I assume this will be in the guidance and consultations that my noble friend is now undertaking—it needs to be in clear English for practitioners, relatives and people deprived of their liberty. If anybody asks in the future what Parliament’s intention was at the time—a question which I understand is sometimes asked in courts of law and to which we perhaps pay scant attention when we are legislating—I hope that on both counts, in terms of the legal definition and the guidance for others who are not lawyers, my noble friend will make sure in those documents that Parliament’s intention in defining deprivation of liberty is clear.

[Lord Mackay of Clashfern (Con)]

My Lords, this area of the definition of liberty is, and always has been, extremely difficult. The Strasbourg court has wrestled with it. It is absolutely vital from the legal point of view—I understand the distinction that has been made and I will mention that again—that this definition should be in accord with the convention; otherwise, we will have trouble maintaining this in the face of challenge. It is difficult to say that the Government’s definition is not in accordance with the convention. It seems clear that it is so. Therefore, all the decisions taken here and in Strasbourg in respect of it are available to help in the formulation of guidance.

If a different definition is taken which does not expressly subscribe to the convention, there is certainly room to try to squash definitions or applications which are in line with this definition as amended by the noble Baroness. It is perfectly open to use the legal definition in the main, in accordance with the convention, and then to help people as best we can to understand what it is all about by giving guidance, which is not authoritative in the same way as judicial decisions. There is quite a lot of scope for trying to do that with guidance which will be in accordance with what the practitioners have asked for. I should say that I am an honorary vice-president of the Carers Trust, but that does not affect what I have to say about it. I can see the need to help people in the actual work they have to do; this is a legal definition, and not all legal definitions are absolutely self-apparent to people who are not lawyers. But the guidance provided for can help in that respect, and there is a serious risk that, if we do not do something of that kind, the result will be litigation which could affect the viability of this clause in the future.

Healthcare (International Arrangements) Bill

Lord Mackay of Clashfern Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Thursday 21st February 2019 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I agree with the noble Lord that our parliamentary processes for dealing with statutory instruments are unsatisfactory—in particular, that we cannot amend them. But is not the remedy in Parliament’s hands? If we were a little bolder and rejected some statutory instruments, it would not be difficult for the Government to reintroduce them in an amended form. The amendment could be very slight. It seems that statutory instruments are necessary, particularly when we are dealing with all those that result from our leaving the European Union. Therefore, we need to look very carefully at the parliamentary process for dealing with them. It seems, as the noble Lord, Lord Young of Cookham, said at Question Time, that this is in Parliament’s hands. We could be bolder and achieve the objective of amending statutory instruments by rejecting some of them.

[Lord Mackay of Clashfern (Con)]

My Lords, it is important to realise that statutory instruments are a very useful way of dealing with particular situations, but of course it is extremely important that the powers to make these instruments are properly scrutinised and narrow. As the noble Lord, Lord Wilson of Dinton, said on the previous day this Bill was being considered, in his day parliamentary counsel would say, “What do you want to use this for?” If the reply was, “I’m not sure”, they would say, “Well, in that case I’m not drafting it until you know what it is for”.

--- Later in debate ---

[Lord Foulkes of Cumnock]

I was going to intervene in the speech of the noble Lord, Lord Butler, but this applies equally here. I have to be careful not to give away too many secrets and internal arrangements, so this is a purely theoretical example. Certainly that can be done, but if a Chief Whip tells you that voting against this is a fatal Motion and urges you not to do it, when that kind of situation builds up it is very difficult. It may well happen. It may already have happened, without giving too much away.

[Lord Mackay of Clashfern]

If a defect was pointed out in a statutory instrument, I would consider that a matter for stopping it going forward. Most of the arguments I have heard in recent times do not point to any mistake in an instrument. They are more theoretical. I do not wish to examine them in detail—I have done that once—but it is important. That is what was proposed when these instruments were originally laid. It is much easier to amend an instrument by taking it back and starting again than with an Act of Parliament. That is the appropriate procedure for correcting a defective instrument, and it happens, not necessarily formally, but quite often instruments are withdrawn when a mistake is pointed out; they get round to writing it again and hopefully the second time it is improved.

[Lord Hope of Craighead (CB)]

My Lords, it is perhaps worth mentioning Amendment 28 in the name of the noble Lord, Lord Patel, which was covered by the noble Lord, Lord Marks of Henley-on-Thames, because he directs our attention to a quite extraordinary provision. On page 3 of the Bill at line 40, we are asked to approve Clause 5(3), which allows regulations to be made amending, repealing or revoking,

“primary legislation … for the purpose of conferring functions on the Secretary of State or on any other person”.

That is extraordinarily wide. I can understand conferring powers on the Secretary of State but why “on any other person”, given that the subsection then adds “(including conferring a discretion)”? That really is the most extraordinarily broad provision, which should be looked at very carefully.

In Vitro Fertilisation: 40th Anniversary

Lord Mackay of Clashfern Excerpts

Thursday 13th September 2018 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, it is a great privilege to follow the noble Baroness, Lady Deech, on this important issue. I put my name down to speak simply because I had responsibilities in the early days of the development of the law relating to this subject. I join the noble Baroness in paying tribute to the then Secretary of State for setting up the Warnock committee, which did a tremendous job of dealing with an issue that had never really been dealt with before, either here or elsewhere. Its report was an excellent summary of the conditions required to be met by any legislation.

The issue of the report was followed by a considerable period of consultation. Eventually, shortly after I became Lord Chancellor, it was decided that we should legislate in this area. The drafting of such legislation, with no precedent of any sort but a very clear steer from the Warnock report, was quite a challenging task. In the meantime, a shadow body was set up, in effect to try out the structures proposed by Baroness Warnock and her committee. The lessons learned from that were certainly taken into account when framing the legislation.

In due course, the Government decided that the question of embryo research was one on which there was considerable difference of opinion and that, therefore, they were to take no line on it. They were to leave it to a free vote, which was influenced to a great extent by one’s views about creation and procreation on a theological level; some Members of the House were prepared to comment on that aspect of the matter and the nature of the research that was possible. As I said, a free vote was decided on. Of course, one difficulty is that there is no guarantee that the result of a free vote will produce a similar result in the two Houses of Parliament.

There was also the question of where the draft Bill should start. Ultimately, it was decided that it should start here. I therefore had the unique opportunity of bringing forward in Parliament something that was unique in the world. One of the techniques that we used, which I think proved extremely valuable, was to set out two choices in the Bill: one for embryo research and the other for where that was not permitted. The full detail was required on both and it was obvious that they could not subsist together. If I remember rightly, it was unique at that time to have such a combination in a statute. The question at the ultimate vote on the subject was: “A” or “B”.

The research scientists had instructed me that up to and until 14 days from conception, the materials in the cells in the embryo were not distinguishable between those which would go on to form the living embryo and the surrounding materials supporting that living embryo. Therefore, 14 days was, from the theological point of view, a good length of time to take where there was no identifiable human life yet obtaining. I think that is more the criterion that was used than anything about how long the embryo would last. It was the uniqueness of the personality question that was fundamental.

The spirit in which the Bill was considered here was one which I still remember with warmth. It was very clear that this was extremely important, very original, and needed very careful consideration. Needless to say, there were Members of this House who were in favour of embryo research and others who were dead against it. In due course, after very considerable debate at Second Reading and then in Committee, we had the vote on Report. I determined, rightly or wrongly, that no personal view of mine would be expressed. When the Government take the view that they should be neutral, it is very common for a Minister to have the chance to express his or her own personal point of view, even though the Government have not accepted it or are not ready to accept it. I thought that, from the point of view of securing a proper vote here, I should not express any personal view of my own.

There was a very full debate which was followed by the vote. It would be right to say that our late friend Lord Walton of Detchant was the leader, along with Lady Faithfull, of those who wanted to legalise the research. The other side was represented, at least to some extent; there were others—the late Duke of Norfolk was a pretty ardent opponent. However, in due course, the vote was taken and it was substantially in favour of that research. To my intense relief, when the Bill went to the House of Commons, the result was the same, so that aspect of the Bill went through with considerable success.

Then another development occurred. When the Bill reached the House of Commons, there was a question as to whether abortion was a proper subject to be considered in that Bill. Since it was all about embryos, it was quite hard to see how that debate on abortion could be excluded. So the very important debate on research in relation to embryos was equalised in importance by people who wanted to change the Bill that the noble Lord, Lord Steel, had introduced—it later became an Act—by modifying the terms of the exemptions. That was a subject on which it was pretty obvious that there was a very great deal of opportunity for difference of opinion. That having been added in in the Commons, and with the Bill coming back to the Lords, your Lordships can understand my anxiety as to whether we would get a Bill at all without relying entirely on the special authority of the House of Commons. Again, to my intense relief, the changes made to the abortion law in the Commons were accepted here very reasonably and so the Bill became the 1990 Act, and with it the appointment of the authority which has existed separately ever since, despite attempts to amalgamate it with others. It has been extremely successful and I pay tribute to those here who played a part, including the noble Baroness, Lady Deech.

The vast and rapid expansion of science led to a question: how long could the Bill, which was introduced and became an Act in 1990, last? I am rather gratified that the main structure of the Act in relation to the regulations and the regulatory powers has existed until now. There is very little sign of really radical change. There were substantial changes made in 2008 when the regulations required an order that IVF should be tried or changed, but the most important change was that the transformation of nuclear material was to be allowed. It is important in this connection to remember that the law here had been in favour of embryo research whereas, I think I am right in saying, most of the continental countries—our European partners—do not allow that or certainly have not allowed it. That was one of the reasons why, when the mitochondrial regulations were being discussed here, there was a bit of anxiety about confirmation with the European regulations. Fortunately for us, we were not party to all of these and it was, therefore, possible to introduce this tremendous possibility of dealing with mitochondrial diseases.

Over the years, this has been a tremendous area of success for our scientists and doctors who work in this area. I pay tribute to the noble Lord, Lord Winston—I am sorry he is not here today—who played a great part in this. I have heard his moving accounts of how women who were not finding it possible to have successful conceptions were dealt with and how important it was to do what was possible to alleviate that. I wish every success to this enterprise as it goes on into the future. I have great confidence that it will be successful as it is now.

Long-term Plan for the NHS

Lord Mackay of Clashfern Excerpts

Tuesday 19th June 2018 Lords Chamber

[Lord O’Shaughnessy]

The noble Lord makes excellent points. It is right at this moment to applaud the wisdom and far-sightedness of the Lords Select Committee on the long-term sustainability of the health and social care system. It called for, among other things, funding of growth in line with GDP, delivering integration, a 10-year workforce strategy, a commitment to reduce variation and a joined-up Department of Health and Social Care, all of which, if we were not able to deliver it in time for our response to the report, we are delivering in short order afterwards.

One of the first ways in which we shall do it is to draw on the wisdom that resides in the NHS, in Parliament and elsewhere in the profession. In the Statement given by my right honourable friend, I point again to the commitment to take on integrated care, that being one of the tests of success. Equally, there is the commitment to transformation of the workforce, to make sure not just that we have enough people but that we have enough flexibility and digital skills, for example.

The final point, on innovation, is very close to my heart—and indeed the Secretary of State’s. We know that doing things in the same way will not deliver the standards we need. We really need a transformation in how we deliver healthcare, much greater digitalisation of the entire sector and the ability to take the amazing innovations that we develop in our laboratories and universities, such as the noble Lord’s own, and get them into use across the NHS. That is one reason why I was so delighted that we were able to announce today that the noble Lord, Lord Darzi, will be chairing our Accelerated Access Collaborative. It is hard to think of anybody more committed to this agenda than him.

[Lord Mackay of Clashfern (Con)]

My Lords, I seem to recollect that some years ago there was a royal commission on social care. Is there any wisdom to be gained from it? I do not think much action was taken on it when it reported.

[Lord O’Shaughnessy]

My noble and learned friend is quite right: these commissions do not always produce action. I realise that there is some frustration in the House over the delay to the social care Green Paper. I hope noble Lords will respect the fact that it is sometimes difficult to fight battles on many fronts. We have made some progress on the NHS and the army moves on to win the war on social care as well.

Carers: Health and Well-being

Lord Mackay of Clashfern Excerpts

Tuesday 12th June 2018 Lords Chamber

[Lord O’Shaughnessy]

I thank the noble Baroness for her question and for her tenacity in pursuing me on this topic. I am glad that we were able to publish the action plan. It is appropriate during Carers Week to pay tribute to the amazing work that carers do. Yesterday, I had the opportunity to meet carers who were struggling, often against their own health needs, to care for those they love.

The action plan that we published is a two-year plan. It has some immediate actions but is not purely short-term and contains some actions for the medium term. I highlight one of those, which is important, particularly given these concerns about carers’ health and well-being: a commitment to creating equality standards for carer-friendly GPs. Carers mentioned to me yesterday how important it is for GPs to validate the fact that they are carers and signpost them in the direction of care. I can confirm that carers and support for carers will have prominence in the Green Paper.

[Lord Mackay of Clashfern (Con)]

My Lords, one of the most exciting experiences I ever had in my life was to go to a children’s hospice providing respite care for the parents of children facing an early death as a result of the onset of permanent illness. What sort of provision do we make for that?

[Lord O’Shaughnessy]

The importance of respite care is agreed by everybody. I point my noble friend to the better care fund, which provides around £130 million a year to support respite care and carers’ breaks, building on the commitment made in the Care Act 2014.