Mental Health (Approval Functions) Bill

Lord Pannick Excerpts

Wednesday 31st October 2012 Lords Chamber

[Lord Pannick]

My Lords, there is undoubtedly a problem which needs to be addressed by emergency and retrospective legislation. I am very grateful to the Minister for explaining the background circumstances. It is very regrettable, indeed astonishing, that this problem has arisen but it has and we need to deal with it.

Your Lordships’ Constitution Committee, of which I am a member, considered the Bill this morning. Your Lordships do not have a formal report from the Constitution Committee because of the urgency but perhaps I may mention two points that we discussed. First, the committee noted with satisfaction that the Explanatory Notes to the Bill address all the issues which the committee advised in its report on fast-track legislation should be addressed by the Government when bringing emergency legislation before the House. We are very grateful for that.

The second point is more substantial. The terms of Clause 1(1) are very broadly defined indeed. They are not confined to the particular mischief which has caused the problem—that is, the actions of strategic health authorities in purporting to delegate the exercise of approval functions to the NHS mental health trusts and the consequent acts of those trusts in granting the approvals. Clause 1(1) is not confined to addressing that mischief which, as I understand it, is the mischief that has prompted this emergency and retrospective legislation. Instead, subsection (1) says that “Any person”—the noble Earl explained that that is deliberately wide and undefined—who has purported to exercise an approval function,

“is to be treated for all purposes as having had the power to do so”.

Clause 1(1) would appear to validate any action in the purported exercise of the approval function, provided it was done before Royal Assent, even though there was a lack of legal power—however that lack of legal power may have been caused and whatever the extent of the legal impediment. Clause 1(1) is not confined to the mischief of the possibly unlawful delegation of powers that causes this legislation to be brought forward.

I appreciate that Clause 1(1) has limits; it is confined to the approval function and it is not prospective, as the Minister emphasised. However, it is very broad in retrospectively validating any lack of powers in the purported performance by anyone of the approval function, whether or not it has anything to do with the delegation function that has been identified in the circumstances. This point was raised in the other place yesterday by Mr Andy Burnham for the Opposition, at col. 205 of Hansard. I have to say that the Minister’s reply was not convincing; he did not address the point. Your Lordships’ Constitution Committee expressed concern at our meeting this morning at the breadth of Clause 11, recognising as we did, I repeat, the need for retrospective emergency legislation in this area.

Why does Clause 1(1) not limit the remedy to the mischief—for example, by including at the end of Clause 1(1) the words “whether or not strategic health authorities had legal power to delegate the exercise of an approval function to an NHS mental health trust”, or something like them? I suggest that such legislation or something like it would implement the object of this emergency legislation but without purporting retrospectively to validate any and all other abuses of the approval function, if any, whatever the consequences may be for people who may have been unlawfully detained for any other reasons relating to the exercise, or the purported exercise, of the approval function.

I respectfully suggest to the Minister and to the House that emergency and retrospective legislation, particularly in a context such as this, concerned as it is with a very vulnerable section of our society, should be carefully drafted and limited in order to confine the remedy to fit the mischief. It would be most regrettable if the emergency legislation, by curing the delegation irregularity, were incidentally—and, I am sure, unintentionally—to prevent legal action by people who may have been unlawfully detained by reason of an unreasonable or improper use of an approval function, which has nothing to do with delegation.

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[Earl Howe]

My Lords, I again express my sincere gratitude to noble Lords who have spoken in this debate for recognising both the seriousness of the issue and the need for rapid action to resolve it. The expertise and wisdom that noble Lords bring to bear on these difficult questions has been extremely valuable. Regardless of the urgency, this is a matter that demands proper scrutiny, and that is exactly what the House is providing today, albeit within abnormal time constraints.

It is also important to record, once again, our appreciation of the invaluable help and advice that we have received from partners such as Mind, Rethink and the Royal College of Psychiatrists. Their primary concern is naturally those whom they represent so ably, but we are genuinely grateful for the mature and calm way that they have responded. We shared the same ultimate objective—to do what is best for the patients affected by a technical error.

I shall now do my best to address the questions put to me. Perhaps I may begin with the questions posed by the noble Lord, Lord Pannick, who relayed the concerns of the Constitution Committee. One of those concerns was why the Bill is drafted as it is, bearing in mind that the source of the mischief was the inappropriate delegation by strategic health authorities, resulting in the technical irregularity to which I have alluded. The answer to that question is that because we do not know the exact administrative arrangements that were in place before 2002 when SHAs came into being, it was impossible to limit in the way that the noble Lord suggested the framing of Clause 1. He suggested an addition at the end of Clause 1(1) specifying whether or not the SHAs had legal power to delegate. I can understand why the noble Lord made that suggestion, but we wanted to make sure that we captured any events of which we are currently unaware that may have occurred prior to 2002, before strategic health authorities were set up.

[Lord Pannick]

My Lords, because we are not going to have a full Committee stage, I hope that the Minister will indulge me in relation to this matter. Is there reason to think that there is any problem whatever other than delegation? I appreciate that it may relate to events prior to 2002, but surely it is only improper or possibly improper delegation of functions that is the mischief here.

[Earl Howe]

The main mischief, I respectfully suggest to the noble Lord, is that the panels which approved the clinicians involved did not, strictly speaking, have the direct power to do that. That is the issue that the Bill tries to capture. The Bill deliberately does not include a comprehensive list of which bodies or persons believed in good faith that they were exercising the approvals function in the past. If we limited the Bill in the way that the noble Lord suggests, we would run the risk of failing to cover some of the approvals given by bodies that we may otherwise have failed to list. I ask the noble Lord to accept that the way in which the Bill is drafted is in the form of a blanket, which gives us certainty that we may not inadvertently have left out any bodies prior to 2002 that may have been guilty of a similar lack of authority.