§ 3.13 p.m.
§ The LORD CHANCELLOR
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ABERDARE in the Chair.]
§ Clause 1 agreed to.
§ Clause 2 [The High Court]:
Lord BELSTEAD moved Amendment No. 1:
Page 2, line 8, leave out ("five") and insert ("six").
§ The noble Lord said: This is a probing Amendment to find out more about the workload which will fall upon the judges of the High Court in Northern Ireland. Paragraph 60 of the MacDermott Report recorded that the number of actions begun by writ, set down and disposed of by the Supreme Court increased from 129 in 1927 to 832 in 1968, with a very sharp increase in the last few years of those statistics. The Committee added that the demands on judicial time of the assizes and the Belfast City Commission had increased, and that the trend of an increasingly heavy workload did not seem likely to be reversed.
§ It would be interesting to know whether the noble and learned Lord the Lord Chancellor has more up-to-date statistics for the number of actions set down and disposed of by the Supreme Court, and whether he can perhaps give us an assurance that the increase in the number of judges provided for by Clause 2 will be sufficient to meet the workload of the High Court sitting in its three Divisions. Of course, in addition to a statutory duty to sit in the Court of Appeal in criminal cases upon the request of the Lord Chief Justice, the High Court judges are to sit in the Crown Court. Again, I should be grateful for an assurance that, so far as can be foreseen, this duty is provided for 858 within the number of High Court judges which is to be included in Clause 2.
§ I said that this was only a probing Amendment; it is so, of course, because Clause 2(3) provides an order-making power for the variation of the maximum number of puisne judges. I beg to move.
§ The LORD CHANCELLOR
This Amendment would increase from five to six the maximum number of puisne judges who may be appointed in Northern Ireland. Although the statutory maximum at present is five, there are in fact at this time four puisne judges in post in Northern Ireland. However, because the members of the Court of Appeal and the Lord Chief Justice himself willingly undertake, as a matter of course, first instance work of all kinds in Northern Ireland, there are effectively eight judges on call for the disposal of the civil business of the High Court. I am aware that there is concern, first, about the extent of the workload, to which the noble Lord has referred, and, secondly, about the backlog of civil actions awaiting trial in Northern Ireland. I have little doubt—and indeed it is apparent—that these are the matters which have prompted the noble Lord to move this Amendment to increase the judicial strength in Northern Ireland.
However, only on rare occasions would the existence of a ninth judge enable the number of cases listed per day and per week to be increased. The governing factors are the size of the Bar, the number of practising senior counsel, which now totals 23, the heavy commitment of the Bar to the duty of prosecuting and defending at the Belfast City Commission, mainly in terrorist-type cases, and the need to ensure that the litigants receive from their counsel the degree of attention and standard of service which justice demands. Happily, over 80 per cent. of the actions which are set down are settled. Approximately 60 actions per week are listed, and the number is sometimes more, which imposes a considerable strain on the Bar. If the number of cases listed is increased beyond a certain critical level, the experience is that fewer cases come to be settled, which is the most undesirable consequence. More time is therefore taken by judges and counsel and a log jam develops, with the result that fewer, and not more, cases are finally disposed of.
859 I am afraid I cannot give the statistics for which the noble Lord has asked—they are not immediately available—but I will write and give him particulars. I will, of course, discuss with the noble and learned Lord the Lord Chief Justice the advisability of making further appointments, but I am afraid that, as I have indicated, an increase in the number of High Court judges will not inevitably help to solve the problem.
However, I should like to add one encouraging point, which is that with effect from last September the number of sitting days of the courts has been increased by 20: from 168 working days to 188 working days in the year. That is bound to help, but the full effect of that change has not yet made its impact. Finally, as indeed the noble Lord has indicated, the provisions of Clause 2(3) of the Bill enable the maximum number of puisne judges in Northern Ireland to be increased by an Order in Council. That is a relatively straightforward and expeditious procedure and, if I find in the future, and am so advised by the Lord Chief Justice, that a further appointment will be necessary, or a further increase in the available number is necessary, I will of course take the necessary action to ensure that there are no avoidable and undue delays in the administration of justice in the courts.
§ Lord BELSTEAD
I am most grateful to the noble and learned Lord for the reply which he has given me. He has, of course, pointed out that, in effect, there is one more judge available in the High Court than was considered by the MacDermott Committee 11 years ago to be the necessary minimum, and I am comforted in that reflection. I am also satisfied that the noble and learned Lord, in consultation with the Lord Chief Justice for Northern Ireland, will always be able to keep this matter under review by using the order-making power which is included in the clause. When, at the end of his remarks, the noble and learned Lord gave the information that the number of sitting days had been increased by 20, I felt that, in considering this Bill in Committee, it was perhaps well to remember the weight of work which these days falls upon the Northern Ireland Judiciary. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 2 agreed to.
§ Clauses 3 to 6 agreed to.
§ Clause 7 [Further assistance for transaction of judicial business]:
§ 3.21 p.m.
The Lord CHANCELLOR moved Amendment No. 2:
Page 3, line 41, leave out from first ("Court") to end of line 42 and insert ("or the Court of Appeal").
§ The noble and learned Lord said: This is a drafting Amendment which will bring Clause 7(1) into line with Clause 7(2) of the Bill. It leaves out the reference to the Crown Court, because that reference is unnecessary. A person who is appointed under Clause 7 to sit and act as a judge of the Court of Appeal or of the High Court will automatically be able to be a judge of the Crown Court by virtue of Clause 4(1) and (2). I beg to move.
§ On Question, Amendment agreed to.
Lord BELSTEAD moved Amendment No. 3:
Page 4, line 8, leave out ("Secretary of State") and insert ("Lord Chancellor").
§ The noble Lord said: In moving this Amendment, I should like, with your Lordships' permission, to speak to Amendments Nos. 8, 9, 11, 12, 18 to 30 inclusive, 32, 33, 34, 35, 37, 38, 39, 41, 42, 43, 44, 45, 48, 49, 51, 52, 58 to 62 inclusive and 68 to 72 inclusive. Until now, the Northern Ireland courts have been administered by three separate court services, and, since direct rule began in 1972, the overall responsibility for those court services has been shouldered by the Secretary of State for Northern Ireland. Clause 69 of this Bill establishes a unified court service and the effect of this Amendment—and the very long list of Amendments which I asked permission to speak to includes Amendments to Clause 69—will be to place ultimate responsibility for the new court service in Northern Ireland with the noble and learned Lord the Lord Chancellor.
§ The main purpose of this Bill, as the noble and learned Lord explained on Second Reading, is to replace the Supreme Court of Judicature (Ireland) Act 1877, and to bring the structure of the courts 861 in the Province on to broadly the same basis as the courts in England and Wales, where the overall responsibility for the courts rests with the Lord Chancellor. There is good reason for so placing that responsibility, for the person and the office of the Lord Chancellor are a guarantee, and are seen as a guarantee, of the independence of the judicial process. Certainly, the noble and learned Lord speaks, when he is called upon to do so, as a Government Minister, as indeed the noble and learned Lord is doing from the Government Front Bench today. But he also occupies, in the noble and learned Lord's own words on Second Reading, an office of great and historic importance; an office which is seen to uphold the independence of the court.
§ Nowhere is it more crucial than in Northern Ireland that this independence should remain, and should be seen to remain unimpaired. Brought in increasing numbers to trial, terrorists and criminals, often operating under the cloak of terrorism, are forced to fall back on the only last desperate option which they have; that is, to try to discredit the law. Your Lordships will be familiar with stories of accused people who refused to recognise the court, of the intimidation of witnesses and of assassination attempts upon the Judiciary. It is a small matter, for those who would gain their ends by such means, to try to criticise the administration of justice on the flimsiest of excuses. The very thorough provisions of this Bill are, I suggest, proof against any such criticism, provided that the ultimate responsibility for all the courts rests with the Lord Chancellor.
§ That is really the case for the Amendment, but there are just two quick points which I should like to add. First, this Amendment is no reflection whatsoever upon the responsibility for the administration of the courts in Northern Ireland of the Secretary of State, which has extended over the last five and a half years. That responsibility has been at all times faithfully discharged. Secondly, it is true that in the 1973 Constitution White Paper the Conservative Government of the day forecast a unified court service which would be under the Secretary of State. But that forecast was made in very different circumstances. Less 862 than a year before that, as a purely emergency measure, the Secretary of State for Northern Ireland had assumed responsibility for all executive functions in Northern Ireland, and the plans for trying to devolve those functions had only just begun to unfold. But, more important, under the Northern Ireland Constitution Act 1973, which followed the White Paper, the Secretary of State was made arbiter of what the Northern Ireland Assembly could and could not legislate for with respect to the courts in Northern Ireland. It was in that context, rightly or wrongly, that it was envisaged that the Secretary of State would retain executive control of the Northern Ireland court service.
§ That situation which I have sought to describe has now totally changed and, on the occasion of this major Judicature Bill, the first restructuring of the Supreme Court for over 100 years, I hope that the noble and learned Lord will feel able to accept the rather backhanded compliment which is intended by this Amendment, and will give the unique combination of his judicial and political authority to the overall responsibility for the Northern Ireland court service. It will mean extra work for the noble and learned Lord and for his office; that I realise. But I believe it will be seen as a touchstone of that independence and integrity of Northern Ireland's courts which have been maintained so resolutely by both Bench and Bar during the testing times of recent years. I beg to move.
§ The LORD CHANCELLOR
Since the matter was discussed on Second Reading, I have given the most careful consideration to the question which is raised by this and the multiplicity of connected Amendments that we are conveniently discussing together. The fundamental question is: which Minister should be responsible for the administration of the courts in Northern Ireland. This is obviously a serious and important matter. I continue to have reservations about the proposal that the responsible Minister should be the Lord Chancellor, for the reasons which I adumbrated in the House on the last occasion, particularly in view of my own conviction that the independence of the Judiciary, to which I, of course, attach fundamental importance, is well safe- 863 guarded by the provisions of the Bill as drafted.
However, in view of the strong and, I am bound to say, flattering representations which have been so graciously made today by the noble Lord, Lord Belstead, by others both inside and outside your Lordships' House, and, in particular, by the whole of the Judiciary in Northern Ireland and, I understand, the legal profession there, who have made it very clear that they are most anxious that I should be the Minister responsible, I have agreed to accept this responsibility, and have agreed with my right honourable friend the Secretary of State that that should be the outcome of our deliberations. I agree with the view that was expressed yesterday in an editorial in The Times that in practice this issue concerns appearance more than reality. I was glad to see it stated in the editorial that it is not seriously supposed that the Secretary of State would take the scarcely visible opportunity that the arrangement would give him to tip the scales of justice.
I should like to make it very clear that in undertaking the responsibility, as I do, I do not for one moment accept that there is any validity in the suggestion that were the Secretary of State to be responsible he would exercise his responsibilities otherwise than with complete propriety. Indeed, this view was generally accepted during the debate on Second Reading. I am grateful to the noble Lord, Lord Belstead, for the way in which he has made it clear that no criticism of the way that the Secretary of State has been conducting his responsibility in this field is made or has been suggested. The conclusion that I have come to is that if the fact of the Lord Chancellor's having ultimate responsibility and, indeed, answerability to Parliament for the administration of justice would strengthen confidence in the courts and in that administration—a confidence which is, of course, all-important in the conditions of Northern Ireland—I am now very content to accept that responsibility.
The decision that I have now made means that the majority of the Amendments relating to this matter which have been placed on the Marshalled List by noble Lords will be accepted by the Government. Certain of the Amendments are not, however, acceptable. One or two of the 864 Amendments—Amendments Nos. 29 and 37, for example—would have the interesting result of requiring me to consult with myself before taking certain action. This is my invariable habit, without any statutory requirement to do so. Another Amendment would have the interesting effect of reinstating a reference to the long defunct Lord Chancellor of Ireland, which would, I suspect, hardly be helpful in present-day conditions.
There are, however, other rather more substantial implications to my acceptance of responsibility for the administration of the courts which will need further consideration. The present balance of responsibilities in the Bill was drawn up on the basis that the Secretary of State would be the Minister responsible for court administration. The functions of the Lord Chancellor and the Lord Chief Justice respectively were adjusted accordingly. That balance will now have to be reconsidered. Minor adjustments may need to be made, but none of substance. An illustration may be found in Clause 5 of the Bill. In subsection (2), Her Majesty may, by Order in Council on the recommendation of the Lord Chief Justice, alter the Divisions of the High Court. If the Lord Chancellor is to be the Minister responsible, it would seem that this function should more appropriately be given to him, although, no doubt, after consultation with the Lord Chief Justice. Clearly this will be a matter for further consideration, and there are other Amendments which will need further and similar consideration.
Accordingly, in the light of what I have said, I respectfully invite the noble Lords who have sponsored these diverse Amendments to withdraw them in return for the firm undertaking that I have given to take over ministerial responsibility for the administration of the courts in Northern Ireland and for the assurance which I now give to bring forward appropriate Amendments for this purpose at a later stage. In conclusion, may I add that the interests of the Northern Ireland court staff will of course be taken fully into account, in consultation with their representatives, as one of the consequences of the actions which follow my decision today.
§ 3.35 p.m.
§ Viscount BROOKEBOROUGH
I should like warmly to welcome this very important decision of the noble and 865 learned Lord. He has taken on a considerable extra task, but those of us who live in Northern Ireland believe that he is well equipped for it and that he will exercise those powers with his usual charm and efficiency. I am absolutely convinced that his decision will protect the courts from attacks by evil men who wish to spread evil tales. It will further enhance the independence of the court.
It is an important decision in another sense. The Government have shown that responsible and sensible views, properly expressed, will be heeded by the Government. This is probably one of the most important reversals of a Government decision which has occurred as a result of public opinion in Northern Ireland. There have been times when we in Northern Ireland have expressed responsible views but have felt that those views have received very scant attention. This decision reverses that process, and I am very glad that it should have been reversed by the noble and learned Lord in this House.
I do not intend to go over the ground which my noble friend Lord Belstead so ably covered, but I am quite certain, as is everybody else, that a unified court system run by Ulstermen will add only a very slight burden to the duties of the Lord Chancellor. I hope that he will enjoy his work. I feel also that it is a very important decision from the point of view of the constitution of this country. It has further cemented the union of Great Britain and Northern Ireland. Therefore I most warmly welcome this decision.
§ Lord FOOT
Before the Amendment is agreed to, may I say in a sentence that we on these Benches very much welcome the decision that the Lord Chancellor has made and that we should like to congratulate the noble Lord, Lord Belstead, upon having brought this matter to a satisfactory conclusion. The noble and learned Lord the Lord Chancellor said that this was a matter more of appearance than of reality. I fully understand that view. The unfortunate fact about Northern Ireland is that so often appearance is much more important than reality.
It seems to me that the argument that was advanced at Second Reading by those who sponsored this Amendment was valid: that if you were to divide the control of 866 the court system between the Lord Chancellor and the Secretary of State you would be putting into the hands of extremists and evil men a very powerful propaganda weapon. That weapon would be the more powerful because they would be able to say, "In Northern Ireland the control of the judicial system is divided between the Lord Chancellor and the Secretary of State, but there is no similar division in England. Why is it that we have been picked out in this way?" That would have been an argument with apparent logical validity which would have been of some effect.
Before I sit down, may I say that I hope that the noble and learned Lord the Lord Chancellor has not made up his mind about Amendment No 29. The noble and learned Lord said that it had the disadvantage that it would require him to consult with himself. I hope that we shall be able to debate that matter. The noble and learned Lord may remember that in Iolanthe there are ample precedents for a Lord Chancellor's consulting with himself. I hope that we shall be able to explore and deploy those arguments when we come to that particular Amendment.
§ Lord MOYOLA
As one who comes from Northern Ireland and who has been a party to these Amendments, I, too, should like to express my thanks to the noble and learned Lord the Lord Chancellor for making this concession. Everybody in Northern Ireland who thinks about the matter will be grateful to him. Certainly I endorse everything that the noble and learned Lord has said. There has never been a question in my mind or, indeed, in any right thinking person's mind as to the impartiality of the Secretary of State or of the Judiciary. It is simply, as The Times has said, a question of appearances. I thank the noble and learned Lord the Lord Chancellor very much indeed.
§ Lord BELSTEAD
I am grateful to noble Lords for speaking on this Amendment. The noble Lord, Lord Foot, made the point that one of this long string of Amendments would place the noble and learned Lord in the position of the Lord Chancellor in Iolanthe. If my memory serves me right, that Lord Chancellor was "highly susceptible", 867 and, if I may say so, the noble and learned Lord today has been good enough to show himself susceptible to representations made in your Lordships' House and to considering very carefully the points which have been put. I should like to thank him for accepting this principle. I admit that the consequential Amendments have not perhaps been entirely easy to draft, and I certainly accept that some of them may be defective. I will therefore, of course, agree to withdraw them, on the understanding that the Government will be revising them to ensure that the drafting of the Bill is satisfactory, and that the Government's list of Amendments will then be reintroduced before the Bill completes its stages in your Lordships' House.
§ The LORD CHANCELLOR
I am certainly happy to give that assurance to the noble Lord. May I remind him that the susceptibility of the Lord Chancellor in Iolanthe was not to debate in your Lordships' House or to the persuasiveness of your Lordships, but to a far more attractive submission. However, I am glad that the occasion has been used to refer to Iolanthe, to which Lord Chancellors owe so much.
§ Amendment, by leave, withdrawn.
§ Clause 7, as amended, agreed to. Clause 8 agreed to.
§ Clause 9 [Qualifications of judges of High Court and Court of Appeal]:
§ On Question, Whether Clause 9 shall stand part of the Bill?
§ Viscount BROOKEBOROUGH
I should like to ask the noble and learned Lord why there is a difference in the years of qualification required for a High Court judge as compared with the Lord Justice of Appeal. Since they are interchangeable, it seems to me peculiar that the qualification for the High Court judge should be 10 years and that for the Lord Justice of Appeal 15 years. Perhaps the noble and learned Lord could explain that.
§ The LORD CHANCELLOR
The responsibilities, the status and standing of a Lord Justice of Appeal are, of course, 868 higher than those of the High Court judge, and a greater wealth of experience is therefore thought desirable; and it is desirable that it should be in statutory form. That is the explanation.
§ Clause 9 agreed to.
§ Clauses 10 to 16 agreed to.
§ [Amendment No. 4 not moved.]
§ Clauses 17 to 27 agreed to.
§ Clause 28 [Jurisdiction with respect to property and affairs of patients]:
§ 3.44 p.m.
Lord BELSTEAD moved Amendment No. 5:
Page 12, line 38, leave out from second ("of") to end of line 40 and insert ("persons suffering from mental disorder, persons requiring special care and persons deemed to be socially inefficient within the meaning of section 7 of the Mental Health Act (Northern Ireland) 1961.")
The noble Lord said: First I should reveal to the Committee the reason which lies behind my putting down this Amendment. I understand that the social services in Northern Ireland—that is to say, the four Health and Social Services Boards, together with the voluntary organisations involved in the care of mentally handicapped patients—have not been consulted about the drafting of this part of the Bill. It may be that, because Clause 28 deals with the legal jurisdiction of the High Court in "matters relating to patients", this is a purely legal matter. But all I think I ought to say is that certainly the drafting of Clause 28, and also of Schedule 3 in two respects, has aroused in the minds of some social workers in Northern Ireland, both statutory and voluntary, certain apprehensions, the first of which is covered by Amendment No. 5. Clause 28(3) reads:
In this section 'matters relating to patients' includes all matters relating to the care and commitment of the custody of idiots, lunatics and persons of unsound mind and their estates and relating to the guardianship of persons of weak mind".
I do realise that this subsection is included simply to clarify the expression "matters relating to patients" which is used in subsection (1). May I say at once that
the word "patients" is fully understood and approved and used by those who work with mentally handicapped people. I am also aware from reading the report of the MacDermott Committee, from paragraph 154 onwards, that the Lunacy Regulation (Ireland) Act 1871 sought to solve the problem of definition of mental handicaps by using the words "idiot, lunatic, or of unsound mind, and incapable of managing himself or his affairs" in Section 2 of that Act of over 100 years ago.
§ What I do not understand is why it is deemed necessary in Clause 28 of this Bill to define "matters relating to patients" by reference all the way back to the Act of 1871, which used those words I have quoted, which are words which are most certainly not used or approved of by anyone working in the field of medicine or social service connected with people suffering from mental handicap these days. In 1961 the Mental Health Act (Northern Ireland) was passed which, broadly speaking, dealt with the care, treatment, control and custody of patients. By a fortunate chance, as it happens, today Section 7 of the 1961 Act defines three different forms of mental incapacity. The effect of this Amendment is to use the definitions included in Section 7 of the 1961 Act, instead of the definitions based on Section 2 of the 1871 Act to clarify what is meant by "matters relating to patients". I beg to move.
§ The LORD CHANCELLOR
I am bound to say that. I have a good deal of sympathy with the spirit of this Amendment, because all in the House know that terms like "idiot" and "lunatic" belong to a bygone age. The difficulty is that much of the legislation which deals with mental health in Northern Ireland is still contained in the Lunacy Regulation (Ireland) Act 1871, and, as the noble Lord will appreciate, at that time these terms were in common usage. A complete revision of the statutory law relating to mental health in Northern Ireland, to take account of social and medical developments over the last 100 years, is currently under consideration with a view to legislation; so this matter will be put right in a fundamental way as a result of this work which is already being undertaken on the legislative proposals which will come forward.
870 Clause 28 (3) as it now stands, therefore, has been drafted to take account of the present regulations, and uses existing terms merely as what I might describe as a holding operation until the total revision can take place. As I understand it, jurisdiction in relation to patients is of two kinds; first, jurisdiction over the person of the patient; and, secondly, jurisdiction over his property. The Mental Health Act 1961 to which the noble Lord refers now makes provision governing the person of patients, but the Lunacy Regulation (Ireland) Act 1871 continues to govern jurisdiction over property of patients, and it is that jurisdiction over property which is being transferred by Clause 28 from the Lord Chief Justice to the High Court. However, I hope on the strength of my assurance that this language will be put right before long, that the noble Lord, Lord Belstead, may not feel it necessary to press his Amendment.
§ Baroness FAITHFULL
I should like to thank the noble and learned Lord the Lord Chancellor for his explanation and the fact that this matter may be put right at a later date. However, speaking as a social worker, there is some confusion—if I may support my noble friend Lord Belstead—because social workers have to adminster part of the Lunacy Act when the patient is in the community. They also administer the 1961 Act. I think that the 1959 Mental Health Act in England sought to alter the attitude towards mental health and mental illness. The 1961 Act in Ireland equally sought to alter the attitude of mind towards mental illness and mental ill health. Therefore, I wish to support the noble Lord, Lord Belstead, by saying that we very much hope, as social workers both in Northern Ireland and in this country, that this archaic language which is unacceptable and which does not make for good work with mental patients could ultimately be altered.
§ Lord BELSTEAD
I am most grateful to my noble friend Lady Faithfull for speaking on this Amendment which makes me feel that it has been worth raising this matter. Of course, I have no intention of pressing the Amendment, but it has been helpful, certainly for me, to get the guidance of the noble and learned Lord 871 the Lord Chancellor and also to receive the information from him that legislative proposals for the repeal and overhaul of the 1971 Act could be in sight in the future.
I should like to put one final point to the noble and learned Lord, in case it is possible that this matter may be reconsidered as the Bill continues its stages through Parliament. As I understood the noble and learned Lord, the legislation as regards the person of someone who is mentally handicapped is covered by the 1961 Act: it is a matter for the 1961 Act. The noble and learned Lord then went on to explain that it is, however, the property of a patient which needs still to be covered by the older legislation. I am afraid T have no legal training, but I consulted the MacDermott Report and noticed that MacDermott admitted that Section 68 of the 1871 Act needed certainly to be retained for the time being in that:the property and affairs of patients, but not their persons, should follow a judicial determination of mental incapacity",considering the medical evidence and that these matters should be decided by the Lord Chief Justice or another judge without a jury.
I am convinced that, if 12 years ago the MacDermott Committee was able to say that the only part, so far as it could see, of the 1871 Act remaining effective in this respect was Section 68 dealing with the property of patients, and that in administering Section 68 the Lord Chief Justice and judges should consider "medical evidence and such other evidence"—presumably from social workers—"as may be relevant", surely that evidence and consideration should be within the scope of modern definition of "mental handicap" I do not want to appear to be hard-headed, but I still wonder whether it is not possible to include the modern definition of mental handicap, which is to be found in the 1961 Act, within Clause 28 of the Bill. I shall not press the matter any further. The noble and learned Lord is telling me that it is not so possible, but I hope that he will forgive me for making this final point before withdrawing the Amendment.
§ The Lord CHANCELLOR
I shall certainly look at the matter. Our difficulty is that the Amendment which is really necessary—namely, an Amendment 872 to the 1871 Act—could not be performed within the terms of the title of the Bill. The whole of the 1871 Act is still needed and must be replaced. Therefore, I think that it may be extremely difficult to deal immediately with this problem in this Bill.
As I understand it, the Lord Chief Justice has functions in this field only under the terms of the 1971 Act. He has none in respect of the Mental Health Act 1961. He has the responsibility for the appointment of legal visitors and they are the two senior officials in the Department of the Affairs of Patients which is a Department of the Supreme Court. They are appointed by the Lord Chief Justice to visit patients whose affairs may come under his control. That Department in the Supreme Court is separate from the Northern Ireland Social Services Department, although, of course, they work closely together. I shall certainly look at the matter again, but I am afraid I cannot hold out any hope that in this Bill we shall be able to remedy the matter. However, we shall press on with bringing the legislation of 1871 into keeping with modern social and medical thinking.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 28 shall stand part of the Bill?
§ Lord BELSTEAD
I shall detain your Lordships for only a moment on the same subject as previously because I was going to ask the noble and learned Lord about the meaning of the reference in subsection (2) to "visitors". The noble and learned Lord has been so good as to clarify that matter. However, there is one further point that I should like to raise which falls within the general ambit of the clause.
The 1961 Act in Northern Ireland—Section 1(1)(f)—lays a duty upon the Northern Ireland Hospitals Authority to furnish to the Lord Chief Justice, the Mental Health Review Tribunal and the Department for the Affairs of Mental Patients, returns, reports and information about mentally handicapped patients as the Lord Chief Justice, the Tribunal and the Department may require, in order to 873 exercise their functions. Therefore, at the very beginning of the 1961 Act, the medical and social services are linked statutorily with the law with regard to mental patients in Northern Ireland.
Briefly, as I understand it, the procedure is that when a patient is mentally ill and he or she does not appear to have any friends or relations available, the social services are immediately called in. If the patient is already in hospital, the medical officer contacts the Area Board; if the patient is at home, as soon as the problem is realised, a social worker will go and visit and an application for admission to hospital by that person under Section 15 of the 1961 Act will be made. Then one has the procedure which the noble and learned Lord is probably more conversant with than I am, about the property of the patient being looked after by the social services: a committee, technically, has to be formed, which is generally a relation or a solicitor, but if all else fails it may be the social service board for the area, to look after the property of the patient; and then finally it is necessary for the Department of which the noble and learned Lord spoke, to decide about the disposal or the running of the property of the patient.
The reason I raise these matters is that I am surprised that Clause 28 does not mention the statutory duty of the hospitals authority under Section 1(1)(f) and of the social services under Section 73 of the Mental Health Act 1961—that duty is the one to which I referred whereby the social services move in to ensure that all is made right when somebody becomes mentally ill. I am surprised that Clause 28 does not mention those statutory duties which are discharged in the way that I have described.
I should have thought that in this Bill there would be advantage, for purposes of clarification, to record that the health and social services have a statutory duty to notify the Department for the Affairs of Patients in cases where patients are incapable of managing their affairs. Presumably, as I understand it, the chief clerk who is an officer, after all, of the Supreme Court and is registrar of the Department for the Affairs of Patients, has to deal then with the application which is made to him. That is the reason that I have raised the matters at rather great length.
874 I am bound to admit to the noble and learned Lord that behind it lies the same reason for which I moved my Amendment. Because the social services in Northern Ireland had not been consulted about the drafting, great surprise was expressed to me about the inclusion of the word "visitors" in this clause. It was because the social services and health authorities felt that it was they who did the visiting that they asked me to raise the matter. I shall leave it there and shall, before we go on to subsequent clauses, ask the noble and learned Lord whether he thinks there is anything in what I said.
§ The LORD CHANCELLOR
I am grateful to the noble Lord for raising these matters. There may be an opportunity when we come to consider Schedule 5 to examine in greater detail the questions that he has raised. Frankly, I have no guidance at the moment on the matters he has raised but I shall certainly look into them and we will have an opportunity at a later stage, or perhaps even in the course of the proceedings of the Committee Stage today, to revert to the points he has made. If I may leave it like that at this stage, I shall certainly come back to it at some convenient time.
§ Clause 28 agreed to.
§ Lord STRABOLGI
I beg to move that the House do now resume in order to take the Statement on Rhodesia.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.