§ VISCOUNT SANDHURST
My Lords, in accordance with the provisions of Section 8, subsection (3) of the Ministry of Health Act, I beg to move to resolve, That this House approves the said Draft Order. The Order has lain for the requisite number of days on the Table of both Houses of Parliament, but it has to be endorsed by direct Resolution. The effect of the Draft Order in Council transfers all the powers hitherto vested in the Secretary of State under the Lunacy Acts and the Mental Deficiency Act to the Minister for Health, except so far as it concerns criminal lunatics and aliens. No new powers are created. It is merely a transfer of existing powers under the Lunacy Act, 1891, and the Mental Deficiency Act, 1913. Your Lordships know that the actual administration of the mentally deficient is under the Board of Control which will be transferred to the Ministry of Health, so that the same people will deal with those mentally deficient. But the Minister responsible to Parliament will be the Minister of Health instead of the Secretary of State. As your Lordships know the Board is composed, half doctors and half barristers, and is under the chairmanship of Sir William Burden, who was lately Under-Secretary in the Home Office. There was a special reference in the Ministry of Health Act as to the proposed transfer, and this Motion is directed to that Act.
§ Moved, That this House approves the said Draft Order.—(Viscount Sandhurst.)
§ THE MARQUESS OF SALISBURY
My Lords, I think that some care must be given to this matter. My noble friend most courteously agreed to defer this subject until to-day in order to suit my convenience. I am very grateful to him. These Orders under the Ministry of Health Act must not be taken to be mere matters of form, to be passed through without consideration. No question requires more consideration than lunacy. I do not think any of us are quite happy as to the condition of the Lunacy Laws at the present moment. Many of us are uneasy lest a good many people are detained who ought not to be detained.
I looked through with some care the sections which are recited in this Order. The only one which seemed to me to call for investigation was Section 205 (1) of the 443 Lunacy Act, under which Commissioners or other persons are directed to visit and examine lunatics, or alleged lunatics. That is a very delicate matter indeed. As I understand it, from the Lunacy Laws where the proper authority, which is in this case the Lord Chancellor and the Secretary of State, has reason to doubt what the actual condition of a lunatic is who is under detention in any lunatic asylum they may direct a Commissioner to go and investigate the facts. That is shortly the effect of Section 205 (1).
It obviously has a connection with public health because it has to do with the mental health of the lunatic. It also has to do in a very marked degree with the liberty of these unfortunate people, and if upon the evidence which the Commissioner collects there is some doubt as to the legality of the detention of the lunatic it is a matter of law, not a matter of health. It is a matter which requires the trained investigation not of a health authority but of a legal authority. Therefore the Lunacy Laws have very properly confided all these parts of the subject to legal authorities.
I have no objection to the transfer to the Ministry of Health of any particular clauses dealing with health, but when it comes to transferring a provision which has to do with a criminal investigation, necessarily an investigation which has to take evidence and has to arrive at a quasi-judicial decision, I greatly doubt whether it is a subsection which ought to have been transferred to the Ministry of Health. It is not, of course, suggested that the whole of the Lunacy Acts should be transferred, but only such section which may be said properly to belong to the Ministry, and it is a question where you draw the line, and I venture to submit that the Government ought to have drawn the line so as to exclude subsection 205 (1) instead of including it. In order to put myself in order I beg to move "That this House approves of the said draft Order with the omission, on page 3, of section 205 (1)."
THE LORD CHANCELLOR
My Lords, this is a somewhat technical matter on which the noble Viscount has asked me to say a word. I agree that there is substance in what the noble Marquess has said, and I should have thought there was no great objection to his proposal. In the ordinary course there would be no technical or legal 444 knowledge in the Secretary of State. No Secretary of State who happens to have been a Law Lord ever looks upon himself or is looked upon as prepared to advise. I remember that Sir John Simon, a week after having been Attorney-General, coming and asking for advice on health, and I doubt whether the noble Viscount will find it worth his while to object to this Amendment.
§ LORD PHILLIMORE
There is a point here dealing with the liberty of the subject, and I think it should be left to the Secretary of State and not to another Minister. I think the noble Marquess is right in his suggestion, and that really no harm can be done by complying with what he proposes. The Lord Chancellor anyhow is left in his position, and the only question is whether the Secretary of State or a Minister of Health should exercise this power, and I think it is a power which ought to rest with the Secretary of State.
THE LORD CHANCELLOR
I confess I am not convinced, but I am sure the Minister of Health would not wish to stand in the way, and I advise my noble friend to agree to the amendment.
§ VISCOUNT SANDHURST
After receiving the advice of the Lord Chancellor I will agree to the suggestion of the noble Marquess and so put the Motion as amended.
§ Motion, as amended, agreed to.