Lords Sitting of 18 January 1983

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Chichester.
The Lord Carnock The Lord Carnock—Sat first in Parliament after the death of his father.

Nuclear Capability of USA and USSR
Lord Jenkins of Putney: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether it has been authoritatively estimated that both the USA and the USSR have enough nuclear weapons to destroy both countries and their inhabitants several times over.
The Minister of State, Foreign and Commonwealth Office (Lord Belstead): My Lords, there is no doubt that the Soviet Union and the United States could in theory destroy each other with nuclear weapons. But the whole purpose of NATO's deterrence policy is to safeguard peace between East and West, and to ensure that the Russians are not tempted to initiate any hostilities and that a nuclear catastrophe could never occur. The Americans, with the full support of their allies, continue the search for radical reductions in nuclear armaments which are balanced and verifiable and thus maintain and enhance the security of both sides.
Lord Jenkins of Putney: My Lords, I am most grateful to the noble Lord for that Answer. May I ask him whether he agrees that in spite of peaceful declarations on both sides the practical consequence of ineffective attempts to reach multilateral agreement has been a constant escalation of nuclear arms on both sides? In this connection, has he received the recent declaration of the Warsaw Pact states, which I understand to be an attempt to arrest this situation; and if the Government have received the full text of the declaration, are they now in a position to say what is their response to it?
Lord Belstead: My Lords, I personally have not seen the full text; but I assume that the noble Lord is referring to the proposal for a non-aggression pact. In that case, we are always willing to study any serious proposal; but such pacts have been proposed before and, of course, they flow from the charter of the United Nations. To show our good intentions in this respect so far as Britain is concerned, I can say that we believe in the non-use of force in international affairs. Look what this country did last year to uphold that principle.
Lord Kennet: My Lords, on the question of weapons reductions, were the Government given any notice of the dismissal of Mr. Rostow and Mr. Starr, and of the appointment of Mr. Adelman? Are the Government acquainted with Mr. Adelman? Indeed, is he acquainted with Western Europe?
Lord Belstead: My Lords, such appointments are a matter for the Government concerned.
Lord Clewdwyn of Penrhos: My Lords, while accepting the need for verification and proper consultation, may I ask the noble Lord whether it would not be quite wrong for the Government to resist any initiative in view of the undoubted danger of the escalation of nuclear weapons throughout the world? Is the Minister able to say what steps the Government are taking to move towards negotiation; that is to say, to test the offer which has been made by the new Soviet leader, rather than leave it in cold storage in the hope that somehow or other something may emerge in due course? What specific steps are Her Majesty's Government proposing to take?
Lord Belstead: My Lords, I entirely agree with the noble Lord, Lord Cledwyn. As I endeavoured to say in answer to the first supplementary question of the noble Lord, Lord Jenkins, we are always willing to look at any serious proposal. A proposal of the kind which the noble Lord, Lord Jenkins, mentioned could undoubtedly be looked at closely in one of the arms reduction talks which are going ahead at the present time in Geneva.
Lord Mayhew: My Lords, is the noble Lord aware that some of the strongest supporters of NATO in this country have become thoroughly dissatisfied with the handling of disarmament questions by the United States Government? Will he draw the attention of the Prime Minister to the possibility that she might summon a meeting of the NATO Foreign Ministers to review the Geneva negotiations?
Lord Belstead: My Lords, I hesitate to cross swords with the noble Lord on this matter, but I made it crystal clear on behalf of the Government when we debated the Motion of the noble Lord on arms control, that Her Majesty's Government in this country were very satisfied with the way in which they had been able to keep in contact with the United States on the arms control negotiations. I would simply remind the House that so far as intermediate nuclear force weapons are concerned in Europe, there is an enormous preponderance on the Soviet side threatening every country in Western Europe, and there is on the table a genuine offer from the United States on behalf of NATO which would remove this threat entirely. So far as strategic arms reduction talks are concerned, there is again reckoned to be a two-to-one advantage to Soviet Russia in terms of throw-weight of ballistic missiles; and, once again, there is a genuine and radical offer on the table from the United States for deep cuts in strategic weapons.
Baroness Gaitskell: My Lords, is not the noble Lord aware that there was a time in 1914 when the Russians and ourselves were allies? My family lost three cousins.

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I lost three cousins fighting on our side, not on the Russian side. Now that the balance of terror, the balance of nuclear weapons, is so equal, surely we ought to have a different strategy and try to make some sense, away from the lunatic path that we are pursuing?
Lord Belstead: My Lords, the noble Baroness's question takes the whole House back to 1945, when we were allies at the end of a terrible war. Since then, as my noble friend Lord Beloff made clear in his speech on a Motion moved by the noble Lord, Lord Mayhew, a few weeks ago in this House, there has been a continual escalation in the build-up of nuclear weapons on the Russian side, so that there is a vast preponderance in Soviet superiority. It is that which we want to try to put right so that there can be real security on both sides of the world.
Lord Elwyn-Jones: My Lords, is the Russian offer now still regarded as on the table?
Lord Belstead: My Lords, does the noble and learned Lord refer to the offer which was mentioned by the noble Lord, Lord Jenkins, as being from the Warsaw Pact last week?
Lord Elwyn-Jones: My Lords, I am referring to the last offer in regard to the SS20s.
Lord Belstead: My Lords, perhaps I may repeat that any serious offer is an offer which I know the NATO countries would be ready to consider.
Lord Molloy: My Lords, if, as the noble Lord the Minister has said, the Soviet Union have a massive preponderance of nuclear weapons over the West, one could understand it if they did not wish to enter into any form of negotiation to reduce what they have got—
A noble Lord: Question!
Lord Molloy: Or is it that they are such very good sports that they are going to wait until the massive preponderance they have has withered away? Is the noble Lord also aware that in very recent times there has been evidence produced by very experienced people that the monitoring of reductions of nuclear weapons is now almost a firm possibility? Bearing all that in mind, ought not we in this country to do our best to influence both the Americans and the Russians to talk seriously and to start implementing a reduction in these horrible and fearful weapons?
Lord Belstead: My Lords, the noble Lord in essence asks me, if the Soviet Union/Warsaw Pact has an advantage in nuclear weapons, is it not unsurprising that they would be reluctant to give that up? My answer to that question is that we will not be threatened by anyone but we will not deploy our own INF weapons, provided the Russians will abandon their SS20s, which undoubtedly threaten the whole of Western Europe today. I repeat that we will of course seriously consider any proposals, but we will not be deflected by threats which are uttered from time to
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time, and are reported in the newspapers today as having been made by Mr. Gromyko.
Lord Campbell of Alloway: My Lords, would my noble friend the Minister confirm that as yet he has received no offer which contains verification proposals?
Lord Belstead: That is my understanding, my Lords.
Lord Campbell of Alloway: My Lords, I am much obliged.
Lord Jenkins of Putney: My Lords, is it not the case that there has been quite a firm indication on the Warsaw Pact side that verification is now a possibility? Also, is it not unrealistic to exclude British and French nuclear weapons when estimating the balance of terror between the Warsaw Pact and the NATO powers? Having regard to all this, would not the noble Lord agree that some pressure should be put upon the United States to cease adopting so totally intransigent an attitude on these matters?
Lord Belstead: My Lords, it really is absurd to put to Her Majesty's Government a suggestion that we should put pressure upon our greatest ally in order to study the absolutely fundamental question of verification which the Western countries have been putting upon the table for the Warsaw Pact to consider for years and years. If verification is a possibility, as the noble Lord says to the Goverment, then I would assure him that it will be considered seriously in the INF or the START talks taking place in Geneva. So far as the question of the British and French deterrents are concerned, a durable agreement has to be based upon the principle of parity between the two major nuclear weapons states.
Lord Gladwyn: My Lords, would not the Government agree that a lot of this talk about nuclear preponderance is irrelevant and even absurd? All that is necessary for an effective nuclear deterrent is the capacity for a second strike to be able to inflict unacceptable damage on the adversary.
Lord Belstead: And that, my Lords, is precisely why the Western powers, on behalf of their peoples and on behalf of our future, are so worried that there is a monopoly in Europe of land-based intermediate-range nuclear weapons in Soviet hands.
Lord Paget of Northampton: My Lords—
The Minister of State, Ministry of Agriculture, Fisheries and Food (Earl Ferrers): My Lords, with respect, having spent 11 minutes on one Question, I think we really should move on.
2.48 p.m.

Sunday Postal Collection: Restoration
Lord Thomas of Swynnerton: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what are their plans for restoring the postal collection on Sundays.
Lord Lyell: My Lords, the question of restoration of the Sunday postal collection falls within the statutory responsibilities of the Post Office, and the Government have no power to intervene in the corporation's day-to-day operations. I understand that the Post Office has at present no plans for restoring this collection.
Lord Thomas of Swynnerton: My Lords, while thanking my noble friend for that rather unsatisfactory reply, may I ask whether or not he agrees that there must be something rather unbalanced in a society which is generous enough to consider the reopening of shops on Sundays but is unable to arrange for a satisfactory collection of post between the hours of 12 noon on Saturday and 9 a.m. on Monday mornings? It is a service which would be of inestimable benefit to large numbers of small businessmen in this country.
Lord Lyell: My Lords, I am sure my noble friend, and indeed your Lordships' House, would agree that small shopkeepers and the Post Office are rather dissimilar organisations, but I would stress to my noble friend that the Post Office gives the information that there would be an additional cost of approximately £15 million per annum in restoring the Sunday collection. As I am sure my noble friend would also agree, we should allow the Post Office to manage; and it is their opinion that Sunday collection is most uneconomic, although it might appear necessary to individual Members of your Lordships' House.
Lord Winstanley: My Lords, may I ask the noble Lord whether he is aware that in 1979, when the Post Office Board contained seven trade union members, the Post Office Board decided that it was both feasible and desirable to restore Sunday collections and decided unanimously so to do? However, when the question of Sunday collections went to the conference of Post Office workers in the summer, it was turned down by, if I recollect correctly, something in excess of 2,000 votes to seven—the seven being the seven trade union members of the Post Office Board. In the light of that experience, would the noble Lord agree that, while it may be desirable to restore Sunday collections, and while many old people would like to feel that their week-end letters are being speeded on their way, the prospect of their restoration is somewhat remote?
Lord Lyell: My Lords, certainly I and, I am sure, your Lordships are very grateful for the detailed information which the noble Lord has given us. I was not aware of those interesting figures which have enlightened me, and I shall bring the noble Lord's point to the attention of the chairman of the Post Office. But I would stress, in view of the point which the noble Lord made about old people posting their week-end letters, that the Post Office are satisfied with their quality of service performance. Indeed, the delivery of both first- and second-class mail is within striking distance of the targets of delivery of one day for first-class post and three days for second-class post.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that over the New Year a great many Post Office boxes were not cleared between 31st December and 4th January, and is not such a cessation of service by a nationalised monopoly a matter of considerable concern to Her Majesty's Government?
Lord Lyell: My Lords, I will bring my noble friend's concern to the attention of the Post Office Board. But, of course, my noble friend will be aware that in my part of the country—that is, Scotland—we have an additional day's bank holiday.
Lord Jacques: My Lords, would the noble Lord bear in mind that many of us believe that workers in shops, in the Post Office and in other non-essential industries should be able to enjoy their family life on Sundays?
Lord Lyell: My Lords, that is a little wide of the original Question. But certainly in all the answers that I have given so far I have stressed that this is a matter for the Post Office Board, and I am sure that they will bring the noble Lord's question to the attention of their workforce.
Lord Monson: My Lords, does the noble Lord not think it deplorable that the last week-day collection from the majority of boxes in London now takes place as early as half-past five in the afternoon?
Lord Lyell: My Lords, I understand that in some areas there is a collection at seven o'clock, and that in some other areas there is an experimental collection at 6.30. But I believe that the 7 p.m. collection throughout the entire London postal district raised approximately 2 per cent. of the total mail collection, so that, somewhat naturally, the Post Office believed that this was uneconomic.
Lord Molloy: My Lords—
Earl Ferrers: My Lords, I wonder whether I might help by drawing your Lordships' attention to the Companion to the Standing Orders which states:
"The tabling of Questions on nationalised industries is considered undesirable save for those asking for statistical information on a national basis or which raise matters of urgent public importance".
I just wonder whether we are getting into the difficulty of being rather generous in the interpretation of Standing Orders.
Lord Molloy: My Lords, bearing in mind the strong feeling on the other side of the House that Post Office workers should be working on Sundays, may I ask the noble Lord whether he will seek to clarify how many Members on the other side of the House will be prepared to come to this Chamber on a Sunday morning and set an example to the Post Office workers?
Lord Lyell: My Lords, the noble Lord's question does not fall within the ambit of either the Question which I am attempting to answer or the guidance in the Companion. But perhaps he might relish the thought that many of your Lordships on both sides are in church on a Sunday morning.

European Social Fund: Allocations
2.55 p.m.
Baroness Lane-Fox: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what has been the benefit to the United Kingdom from disbursements from the European Social Fund since the United Kingdom's accession to the latest convenient date.
Earl Ferrers: My Lords, in the years 1973 to 1982 the United Kingdom was allocated grants totalling £964 million from the European Social Fund, including £258 million in 1982. Grants from the European Social Fund have made a substantial, and very welcome, contribution to training and employment schemes in this country, especially for young people.
Baroness Lane-Fox: My Lords, may I thank my noble friend the Minister for his reply? In view of the sometimes surprising mixture of successful applicants for grants compared with other, at least equally worthy, bodies which are probably too hard-pressed to discover the right application formula, would it be acceptable to make more widely known the correct method of application for these grants?
Earl Ferrers: My Lords, if anyone was in any doubt about how to apply, I am sure that if he were to get in touch with the Department of Employment he would be so instructed.
Lord Paget of Northampton: My Lords, can the noble Earl tell us what percentage we get out from what we put in?
Earl Ferrers: My Lords, I may tell the noble Lord that the social fund itself is 7 to 8 per cent. of the European budget—
Lord Paget of Northampton: I mean the lot.
Earl Ferrers: My Lords, if the noble Lord will be good enough to contain himself, I shall try to answer his question. As I said, the social fund is 7 to 8 per cent. of the European budget. Our average share of that fund since accession has been 23.8 per cent., and our share in 1982 was close on 30 per cent. If the noble Lord will be good enough to work out the figures from those statistics, which he can probably do in his head, he will come to the answer.
Lord Cledwyn of Penrhos: My Lords, can the noble Earl give an assurance that where those grants are made—and, of course, where they are made they are welcome, although the percentage is low in view of our unemployment figures—the Government themselves do not reduce their grants in the same area by a similar amount?
Earl Ferrers: My Lords, with respect to the noble Lord, I do not think that these grants are small. As I
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said, the United Kingdom received 30 per cent., which is a very substantial amount—
Lord Cledwyn of Penrhos: Seven per cent.
Earl Ferrers: My Lords, I said that 30 per cent. of the social fund is given by the European Community to the United Kingdom. But I tell the noble Lord that, in our public estimates, the allocation of the contribution from the social fund is taken into account in arriving at the figures, and had it not been for the social fund the figures for public allocation would have been bound to be lower. Therefore, the grants have been a direct contribution to the additional amount which is spent on training, and such schemes.

Cruise Missiles: Launching Arrangements
2.58 p.m.
Lord Gladwyn: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, if and when "cruise missiles" are installed in the United Kingdom, firm arrangements will be made with the United States Government whereby the missiles can in no circumstances whatever be launched without the explicit consent of Her Majesty's Government, and if so, whether such arrangements, when concluded, will be laid before Parliament for approval.
Lord Belstead: My Lords, the Government have made clear many times that we are, like successive Governments before us, satisfied with existing arrangements. Under these, the use by the United States in an emergency of bases in the United Kingdom (including cruise missile bases) will be a matter for joint decision between the British and American Governments in the light of circumstances at the time.
Lord Gladwyn: My Lords, while thanking the Minister for that not unexpected reply, may I ask him, in view of statements which have already appeared in the press, whether he can possibly deny that, unless the Government change their present attitude, we may quite well be committed to nuclear war, with all its appalling consequences, against the will of this country as expressed in Parliament?
Lord Belstead: No, my Lords. I would not agree with the noble Lord, Lord Gladwyn, in that assumption. The use of United States bases in the United Kingdom in an emergency would be a matter for joint decision by Her Majesty's Government and the United States Government, in the light of the circumstances prevailing at the time. The Government are aware that concern has been expressed about the effectiveness of these arrangements, and the Government are satisfied that the arrangements are effective.
The Earl of Lauderdale: My Lords, may I ask my noble friend to restate the fact that this arrangement

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was entered into by previous Governments of both kinds, and that therefore we have a bipartisan agreement which it would be very unwise to upset?
Lord Belstead: My Lords, I am grateful to my noble friend Lord Lauderdale. It goes back to a communiqué issued in 1952, after discussions between Mr. Churchill and Mr. Truman, which confirmed arrangements reached earlier between Mr. Attlee and Mr. Truman. The arrangements are precisely those which have applied for nearly 30 years and which have been supported by successive Governments.
Lord Bishopston: My Lords, is the noble Lord the Minister aware that yesterday in the other place a Defence Minister said that in the absence of concrete results in the INF negotiations in Geneva the deployment of cruise missiles would start at Greenham in December? Will the Minister say, first, whether the Government are satisfied with the present safeguards which ought to ensure that the British Government have control of any weapons and, secondly, what the Government's aims are at Geneva, in view of the fact that negotiations have gone on since December, 1979?
Lord Belstead: My Lords, so far as the Geneva negotiations are concerned, of course it is our wish that we should achieve the zero option so that the threat of these intermediate range weapons would be removed from either side. So far as control is concerned, I repeat that the use of United States bases in the United Kingdom in an emergency would be a matter for joint decision.
Lord Paget of Northampton: My Lords, is the noble Lord aware that since these arrangements which he mentioned were entered into in 1952 there has emerged in Europe, as the noble Lord told us earlier, an overwhelming superiority directed at us, and that in our case destruction would mean that within 24 hours of these weapons being launched from this country at least 75 per cent. of our nation would be dead? In those new circumstances, is it not reasonable that we should have the say-so as to our nemesis?
Lord Belstead: My Lords, I have given the basis of the agreement about the use of bases in an emergency. It is a long-standing, well understood arrangement between United States Presidents and British Prime Ministers. I repeat that we are satisfied that these arrangements are effective.
Lord Kennet: My Lords, would the Minister of State indicate that he knows as well as the rest of us that last time there were American nuclear missiles on British soil a Conservative Government, in which the noble Lord, Lord Duncan-Sandys, was the Defence Minister, insisted on a physical dual key arrangement? Could the Minister say why he thinks it is unnecessary this time? Lastly, could the Minister say what reason he has to think that people will accept it?
Lord Belstead: My Lords, I assume that the noble Lord, Lord Kennet, is referring to the Thor missiles which were based in the United Kingdom for only five years. They were the only nuclear missile system ever
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based in the United Kingdom to have been governed by a true dual key. The reason was that the missiles were owned and manned by the United Kingdom.
Lord Glenamara: My Lords, is the House to understand that the use of the term "the use of bases" includes the launching of cruise missiles?
Lord Belstead: Yes, my Lords.
Lord Shinwell: My Lords, is the noble Lord satisfied that the assurance he has given about some arrangement, the details of which are unknown to us, can be guaranteed in the future, and that that assurance has received the consent of either House of Parliament? Would it not be desirable for both Houses of Parliament to be given a definite assurance that we are entitled to retain some measure of independence in a matter of this kind?
Lord Belstead: My Lords, I repeat what I have already said: that this is a very long-standing and well understood arrangement between United States Presidents and British Prime Ministers which, as my noble friend Lord Lauderdale reminded the House, goes back over a period of about 30 years.
Lord Gladwyn: My Lords, if we can believe the press, is it not a fact that the Americans have agreed, in principle, to our having a dual control, or dual key, provided that we agree to purchase the missiles? Would it not therefore be in our interests to spend a few hundred million pounds in order to have control of these missiles, rather than the reverse?
Lord Belstead: My Lords, I would not wish to comment upon anything which I have read in the press. A dual key arrangement would entail the United Kingdom purchasing the missiles and supporting equipment, except the warheads, and manning them in the same way as we do the Lance missiles in Germany. Since we are satisfied with the existing arrangements for the control of such weapons, we do not think that this would be a sensible use of defence resources.
Lord Brockway: My Lords, the Minister's answer referred to American bases in this country. Would it be possible to have consultations with the new American Command for Europe which is to be established at High Wycombe, and with the NATO Reserve Command, except for Western Germany? If they are to control the use of weapons in the whole of Europe, how can there be consultations between our Government and them before they are used?
Lord Belstead: My Lords, the answer to that final question is that this is a long-standing, well understood arrangement between Presidents and Prime Ministers, and it works.
Lord Jenkins of Putney: My Lords, is it not the case that in time of war what really counts is not political control but operational control? Will not the Government accept that until they re-establish operational control over the use of the weapons they will not be believed if they claim to be in control of the fate of our own country?
Lord Belstead: My Lords, I am surprised that the Government are not believed. After all, this is a situation which has been in existence for a very long time. It is right for me to end this exchange by repeating that the Government are aware that concern has been expressed about the effectiveness of these arrangements, but the Government are satisfied that the arrangements are effective.

Business
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon, my noble friend the Leader of the House will, with the leave of the House, repeat a Statement which is to be made in another place on the Franks Report.
It may be for the convenience of the House if I announce that dinner will be available at the usual time this evening. The Committee stage of the Mental Health (Amendment) (Scotland) Bill will be adjourned at approximately seven o'clock for a short period. During the adjournment, the Report stage of the Plant Varieties Bill and the Fishing Vessels (Temporary Financial Assistance) Scheme 1982 will be taken.

Mental Health (Amendment) (Scotland) Bill [H.L.]
3.7 p.m.
The Minister of State, Scottish Office (The Earl of Mansfield): 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 Earl of Mansfield.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 1 [Remuneration etc. of members of Mental Welfare Commission]:
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 1:
Page 1, line 6, at beginning insert—
(" (1) In subsection (2) of section 2 of the principal Act (which deals with the constitution of the Mental Welfare Commission of Scotland) for the words 'nine' and 'eleven' there shall be substituted the words "ten" and "twelve" respectively and in subsection (3) for the word "four" there shall be substituted the word "five".)
The noble Lord said: This is a very simple but important amendment, which is concerned with the Mental Welfare Commission of Scotland. When it was first established, the Mental Welfare Commission of Scotland was a very much smaller body, consisting of anything between seven and nine members. The commission was then enlarged and became a body consisting of between nine and 11 members. The amendment proposes that that number should again be changed and that the Mental Welfare Commission should consist of anything between 10 and 12 members.
The purpose of the Bill and of many of the other amendments to the Bill is to strengthen the hand of the
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Mental Welfare Commission, to give it more functions and to enable it to carry out more duties in respect of those suffering from mental illness and who, because of mental illness, are detained under its care in hospital. Even at the present time the commissioners have to exercise protective functions in respect of people who, by reason of mental disorder, are incapable of sufficiently protecting themselves; and they are given the task of inquiring into and taking action in respect of any case where there may be ill-treatment, deficiency in care or improper detention.
Now that we are giving the commissioners new functions within the Bill, I believe that the present commission is not adequate to perform its task. Indeed, the Government say that it is not, because one of the later amendments is that the commissioners may set up a committee which may be a committee of commissioners, and they may appoint someone from outside the commission to chair that committee. I would fancy that they would only be required to do that as a second best, where they could not do it themselves from within the commission.
The work of the commission is so important that we should not leave this matter to chance of that kind. I suggest that we increase the number of commissioners from nine to ten and have the possibility that the Secretary of State may further increase it, if he so desires, to 11 or 12. It is a matter of the importance of the work of the commission and the importance of the new duties we shall be giving the commission. I hope that this amendment will commend itself to the Committee. I beg to move.
Lord Taylor of Gryfe: I should like to support the amendment moved by the noble Lord, Lord Ross of Marnock. I do so in preference to my own amendment, which follows. Like the noble Lord, Lord Ross of Marnock, I am concerned about the adequacy of the commission to discharge its duties. There is no doubt that the new legislation adds considerably to the duties and responsibilities of this important body. To give it the necessary increase in numbers will enable the commission to discharge its responsibilities sensibly, and to avoid the possibility of augmenting its resources from outside the commission, as may be necessary from time to time.
In my own amendment I am proposing that at least three members of the commission shall be women. The justification for this is that there are more women suffering from mental illness in Scotland than there are men, and I am concerned that women should be well represented on the commission. I am not sure whether the Equal Opportunities Commission takes care of adequate representation in the case of Government appointments, but I should be happy to be satisfied that the claims of women will not be overlooked by serving members of the commission. With that assurance I shall be happy to support the amendment of the noble Lord, Lord Ross of Marnock.
Lord Ross of Marnock: Out of fairness to the noble Earl the Minister, I should explain to the Committee before he replies that in the last two lines of my amendment, which read,
"for the word 'four' there shall be substituted the word 'five'",

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I am increasing the size of the commission, and in this phrase I seek also to increase the size of the quorum. At present the quorum is four, and I suggest that, for a bigger commission, it should be five.
The Earl of Mansfield: The noble Lord, Lord Taylor of Gryfe, puts me in something of a difficulty, if not on the spot, because what I was going to say to the Committee, and still intend to say, is that there are features of both amendments, Nos. 1 and 2, which the Government find attractive, but there are rather more features of the amendment of the noble Lord, Lord Taylor of Gryfe, than there are of the amendment of the noble Lord, Lord Ross of Marnock—that is, Amendment No. 1. What I shall do is say what it is that we find attractive about both amendments and then invite the noble Lord, Lord Ross of Marnock, to withdraw his amendment. I hope that we shall bring forward at Report stage an amendment which will commend itself to both noble Lords and to your Lordships' House.
I am very willing to accept that the minimum number of commissioners should be increased. There are at present 10 commissioners, including the chairman, and one place is temporarily vacant. A lower limit of 10 would not be unreasonable; but so far as a maximum is concerned, there I should go to the amendment of the noble Lord, Lord Taylor of Gryfe, because I should prefer to see the maximum limit removed rather than merely increased, as the noble Lord, Lord Ross of Marnock, would have it in his amendment. I quite agree that in view of the increased activity of the commission, and that such increased activity will be even greater in the future, a greater number of commissioners will certainly be required. I believe it is unnecessary to set a maximum limit. I feel that we should leave it to the commission and to the Secretary of State to decide from time to time how many commissioners are needed, without recommending the appointment of unacceptably large numbers.
Now I turn to the distaff side. These days, I do not believe that one has to prescribe a minimum number of women commissioners. Times have changed since the principal Act was passed in 1960, and it is accepted everywhere that women should be represented on a body such as the commission. I have no objection to an increase in the number in the way that is sought in Amendments Nos. 1 to 3; I anticipate that there will usually be more. I do not feel that it matters, and I shall be content to test the feeling of the Committee in this respect.
The amendment of the noble Lord, Lord Taylor of Gryfe, would omit from subsection (2) the provision that commissioners who are medical practitioners are to be referred to as medical commissioners. I know very well that this stems from a number of amendments which he will probably move a little later. But obviously he will not necessarily expect the Government to smile on that particular part of his amendment.
Now I come to the last part of the amendment of the noble Lord, Lord Ross of Marnock, which in effect proposes that subsection (3) of Section 2 of the principal Act should be amended so as to increase the
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number of commissioners constituting a quorum. That is quite reasonable and wholly acceptable. If the membership of the commission is to be increased then the quorum should also be increased. I should be quite happy to accept that part of Amendment No. 1.
Here, we have parts of both amendments which are eminently acceptable to the Government. I should like to take this matter away and to produce an amendment which I hope will be acceptable to your Lordships at Report stage. It seems to me that the only point between us at the moment is whether or not there should be a maximum. I would prefer to leave it to the good sense of the commission and the Secretary of State.
Lord Ross of Marnock: The noble Earl the Minister has put his points very fairly. Remember, the present maximum is 11 and the present size of the commission is 10. If we accepted the first part of Amendment No. 2—that we should only put in a minimum and set no specific number as a maximum—it would simply mean that the Government could leave matters as they are. Judging by what the noble Earl said about a quorum, he could have the same number as we have at the present but with an increased quorum, which would not make very much sense. If the noble Earl is promising that, then, having accepted this increased quorum, as he says he is going to do, he ought to give a pledge that there will be more than 10 members.
I am all for trusting Secretaries of State, and that is the reason why I did not go into specifics about the number of women or the number of medical practitioners, or that there had to be an advocate with at least five years' experience. That should be sensibly left to the Secretary of State. I also want to see people who are not usually in this kind of run serving as commissioners; that they should not merely be consulted, because some of them might make very good commissioners. Some may come from voluntary organisations other than the sort of specialist categories included, but be qualified because of their long-term interest in the subject. That is why I want to see an increase.
I am prepared to accept from the Minister that he is inclined to the view that there should be an increase and that he is prepared to accept an increase in the quorum. I will not press him on that. I also accept that there should be no maximum. But I think he has to make his intentions a little clearer; otherwise, we could be no better off but in fact worse off, with a commission of the present size and a larger quorum.
The Earl of Mansfield: I thought it was implicit in what I said that, bearing in mind that the Bill is very much in embryonic form at Committee stage in your Lordships' House, the Government are quite flexible on the matter of numbers. I think that by conceding the principle of both amendments I have made it clear that it is the view of the Government that more commissioners will be needed. I think my only reaction to what the noble Lord has said is to say that what I am asking for is that there should be the maximum flexibility. I think we can leave it to the good sense of the Secretary of State, advised by his officials and, indeed, by the commission itself, to determine the number of commissioners there should be. If the noble Lord really wants me to write a lower

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limit of commissioners into the amendment I will give it thought, but I would have thought it was scarcely necessary.
Lord Ross of Marnock: In view of what the Minister has said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Taylor of Gryfe Lord Taylor of Gryfe had given notice of his intention to move Amendment No. 2:
Page 1, line 6, at beginning insert—
(" ( ) For subsection (2) of section 2 of the principal Act there shall be substituted—
"The Mental Welfare Commission shall consist of no fewer than ten Commissioners (including at least three women) of whom one shall be Chairman, at least three shall be Medical Practitioners and one shall be a person who has been for a period of at least five years either a member of the Faculty of Advocates or a Solicitor).".")
The noble Lord said: In view of the assurances given by the Minister and his sympathetic response to my amendment, I look forward to his appropriate amendment at Report stage and beg leave not to move my amendment.
[Amendment No. 2 not moved.]
3.24 p.m.
Lord Taylor of Gryfe Lord Taylor of Gryfe moved Amendment No. 3:
Page 1, line 6, at beginning insert—
(" ( ) For subsection (4) of section 2 of the principal Act there shall be substituted—
"(4) The Commissioners including the Chairman shall be appointed by Her Majesty on the recommendation of the Secretary of State and shall hold and vacate office under the terms of the instrument under which they are appointed but may resign office by notice in writing to the Secretary of State save that no person shall hold the office for more than two terms of four years or the office of Chairman for more than eight years.".")
The noble Lord said: I beg to move Amendment No. 3, which refers to the turnover of members of the commission. I am concerned that in this particular area where we have changing situations, changing methods of treatment, changing attitudes, there should be some provision in the Bill for turnover of members of the commission. I am hoping in my amendment to bring this into line with most of the appointments made by the Scottish Office in respect of commissions of one kind and another. I am hopeful that the Minister will accept that as a reasonable proposition. I beg to move.
The Earl of Mansfield: When the Mental Welfare Commission was established in 1962, it was not unusual for members of bodies such as the commission to be appointed to hold office for a very long time indeed. Indeed, they were appointed to hold office until attaining the age of 70 years. Since 1973 the practice has been for members of the commission, like those of health boards and a good many other bodies, to be appointed for four-year terms of office. There are now only three members, including the chairman, who hold office under the previous arrangements, and all three are due to retire within the next three or four years. I do not see any merit in limiting the number of terms of office which may be served by either the chairman or any other member of the commission.
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If a member is not able to play a satisfactory part in the work of the commission, he or she will not be recommended for reappointment for a second term, let alone a third. On the other hand, if there is somebody who is dedicated and able, and who proves himself to be a valuable member of the commission and wants to continue to serve after two terms of office, it would, I suggest, be extremely wasteful to enforce his or her replacement by somebody else, who at the very least would be no better and might well not be able to contribute so much. I hope the noble Lord on reflection will agree that it would be preferable to continue with the present system whereby members of the commission, including the present chairman's successor, can be recommended for reappointment for successive terms while they remain interested and conscientious.
It is natural that the chairman and indeed the Secretary of State will wish to see changes made from time to time to bring fresh enthusiasm and interest to the commission, but I think it is quite unnecessary to limit tenure of office to ensure that that is done. I believe it is highly unlikely that in the future we shall find many people who are prepared to continue in office as long as the present chairman, Lord McDonald, who has given up a great deal of his time in the most selfless manner for no less than 17 years for no reward other than the satisfaction of fulfilling a very important job on behalf of the mentally ill and mentally handicapped. I do not think the noble Lord's amendment would do very much good, if any, and I think it could well harm the interests of those whom we all want to serve. I hope the noble Lord on reflection will not press the amendment.
Lord Ross of Marnock: The Minister said there were three members left who had been appointed under the old régime prior to 1973, and that that included the chairman. What has been happening since 1973? Has the tendency been appointment for four years, and that may well be that as far as these post-1973 appointments are concerned? Has there been a greater rate of changeover since 1973? I do not think there is any actual term laid down in statute; it is a matter for the Secretary of State. I do not necessarily disagree with what has happened, knowing Lord McDonald and knowing what he has brought to the work of the commission. I think it would be quite wrong statutorily to rule somebody out because they have been there for eight years. I can think of chairmen of Forestry Commissions and things like that; they might grow with the term of office. When you apply that to some of the other offices, we would object to such a severe limitation. I think that, once again, we should leave it to the common sense of the Secretary of State to decide what is done. I should be grateful if the Minister could tell me what the tendency has been since 1973. After all, it is nearly 10 years. Have any of those appointed since 1973 had more than two terms of four years?
The Earl of Selkirk: May I say that I agree generally with what my noble friend has said. I was a member of the General Board of Control; it was a long time ago and I have forgotten practically everything I ever did there. This is a pretty exacting job and this is a pretty complicated Bill. Perhaps I may say that I think

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possibly one lawyer is not enough. There are a very large number of highly complicated questions of law which are going to arise. The noble Lord, Lord Taylor of Gryfe, suggests one advocate; I think that possibly there ought to be at least two, but I only mention that in passing.
This is going to be an exacting task and I believe it will be found difficult to find good people with adequate experience and adequate ability to hold the office for a long time. It is going to take up quite a lot of time. Even if they are paid reasonably, people engaged in law or business may find it difficult to give adequate time. Doctors may not find it too difficult because they can work it in with their normal functions. I think that, if we find people who can do it and who are competent to do it, we should not restrict too greatly the time that they can serve. There are a lot of complicated questions to be considered. There is a lot of travelling to be done. The extra work will take a great deal of time. It will take very nearly one-third of the time to fulfil the duties properly. I therefore support the view that my noble friend has suggested.
Lord Taylor of Gryfe: I do not propose to press the amendment, but I seriously take the view that as we appoint members to the health boards for a limited period we might look at the question of the terms of service in the commission. May I say that this is no reflection on the work of Lord McDonald or the work done by the commission members. The commission discharges its responsibilities well within the present remit. We are now changing its remit, extending its services and in the whole field of the treatment of mental illness there have been changes over a period. It is unfortunate if members of the commission sit on the commission for 17 or 20 years, as has been suggested. The chairman has held that office for 17 years. Members' attitudes tend to be more rigid and perhaps less receptive to new ideas and new organisation. In order to satisfy the need for some fresh influences in the commission I uphold the amendment. However, having said that, I do not propose to press it to a Division.
Amendment, by leave, withdrawn.
3.31 p.m.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 4:
Page 1, line 6, at beginning insert:
(" .—(1) After subsection (4) of section 2 of the principal Act (which makes provision as to the appointment of Mental Welfare commissioners by Her Majesty on the recommendation of the Secretary of State) there shall be inserted the following subsection—
"(4A) Before making a recommendation under subsection (4) of this section the Secretary of State shall consult such bodies as appear to him to be concerned.".
(2) ").
The noble Earl said: This is an amendment which in many ways goes in with Amendment No. 5 and Amendment No. 6. But it may be convenient if I move my amendment merely formally. It is painfully obvious about what it is intended to do; in other words, that the Secretary of State is enjoined to consult those bodies which appear to him to be concerned before making his recommendations. I beg to move.
Lord Ross of Marnock: I think that formally to move an amendment and then to claim that it is an important amendment is a little too much. After all, this could mean nothing at all—
"the Secretary of State shall consult such bodies as appear to him to be concerned".
He is not required to consult at all. We should be given an indication of the type of bodies it is his intention so to consult.
The Earl of Mansfield: There are all manner of bodies which the Secretary of State consults before making a very large number of appointments, as the noble Lord, Lord Ross, knows very well. Bodies can, although they have not in the past, include voluntary organisations; but there is no reason why consultation should not extend, for instance, to bodies such as the Scottish Society for the Mentally Handicapped and the Scottish Association for Mental Health. It might well be that such bodies would want to put forward nominees and it would be up to the Secretary of State to consider them and place such reliance on them as he thought fit.
I do not think there is much more I can say, as the noble Lord knows. There are all manner of interested parties who would like to have a say before such appointments are made. In discussion of previous Bills, when the noble Lord and I have faced each other across the Dispatch Box, the noble Lord has been quite concerned, as it were, to pin the Secretary of State down and this is perhaps a provision which he might have welcomed.
The Earl of Selkirk: Is this the first time that the commissioners have been appointed by Her Majesty?
The Earl of Mansfield: I am sorry. I did not catch what my noble friend said.
The Earl of Selkirk: Is this the first time that the health commissioners have been appointed by Her Majesty?
The Earl of Mansfield: No, I think not.
Lord Ross of Marnock: The Minister of State has gone some way in that he managed to utter the words "voluntary organisation". He must appreciate that since 1960, when the principal Act was passed, there have been, fortunately, far more interest and, at times sadly, more concern about what has been happening in this field. It would be quite wrong if the Secretary of State limited his consultation to people in the legal and medical professions and to people with that kind of interest in the body. There are many parents who, as a result of concern about this matter, have built themselves up to a position where they know far more about it than many lawyers and many of the welfare commissioners of the past. I should like to have had a little more reassurance from the Minister that the Secretary of State will consider people connected with the voluntary organisations. I do not think for a minute that the Secretary of State will be asking for nominations. He does not do that in this kind of matter, any more than he does on many other aspects. Wide as the provision is, it lacks the detailed pledge

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that he will consider the voluntary agencies, who have done a tremendous amount of work and have been responsible for greater public interest in the work in the mental health field.
Lord Taylor of Gryfe: I have an amendment following the noble Earl's amendment which relates to membership of the commission. Perhaps it would be appropriate if I were to say a word about that amendment, as it specifically relates to membership of the commission which is covered by this amendment. It becomes more specific, in so far as it includes the voluntary organisations. There is a suggestion, too, that the consumers of the service of mental care should perhaps be represented on this commission.
If we look at the commission in the past it has been largely restricted to the professional side, whereas a feeling has been expressed, especially by the noble Lord, Lord Ross of Mamock, that there are people outside the professions who have a contribution to make in this field, and who have a deep concern. In anticipation of this debate I spent some time last week looking at the voluntary services in the after-care treatment of the mentally ill. There is a great deal of public support, public sympathy and public concern which could be drawn upon and which could perhaps balance the purely professional element in the commission by voluntary organisations and former victims of mental illness. I hope that, while the Minister is not as specific as is my amendment, he might give assurances that he will draw from that wide spectrum of experience in making the appointments that he has in mind.
Lord Winstanley: While I have sympathy with the noble Lord, Lord Taylor, in what he said about his later amendment, I hope he will forgive me if I say that reference to that later amendment rather muddies the water in relation to this specific amendment. On that matter, before the noble Lord, Lord Taylor of Gryfe, had spoken, I was very much in agreement with what Lord Ross said about the desirability of full consultation with the voluntary bodies, but, in that argument, I was inclined to lean towards the arguments advanced by the noble Earl in relation to his limited amendment, which says:
"the Secretary of State shall consult such bodies as appear to him to be concerned".
At that stage, in so far as there was an argument, I was inclined to support the noble Earl in his amendment.
My support might be crystallised and solidified if I could briefly refer the noble Earl to an amendment of mine much later on the List, Amendment No. 104, which I am not moving or referring to. If the noble Earl will glance at Amendment No. 104, he will see that it seeks to amend a later subsection in order to make that subsection read precisely as the noble Earl's amendment now reads at this point in the Bill. I was merely suggesting that if the noble Earl can give me an assurance that he will look favourably on that later amendment, which seeks to do then precisely what he seeks to do now, perhaps I will think I was entirely right in deciding to support him.
The Earl of Mansfield: I am bound to say that I tried to keep the debate to my own amendment and not go to the amendment of the noble Lord, Lord Taylor, which I am not happy to accept, or, indeed, to the amendment of the noble Lord, Lord Winstanley, which I shall be happy to accept—but a long time later, I fancy.
The fact is that I believe there should be maximum flexibility. I know that a great deal of informal consultation already takes place. That happens with a variety of bodies. I admit that this consultation has not previously extended to the major voluntary organisations, and I accept that it should do so in future. It is better that we should proceed on the basis that the Secretary of State will do what he considers to be right, which all Secretaries of State try to do (and I am looking at the noble Lord, Lord Ross of Marnock, as I say this) rather than write into the statute, as it will be, the rather vague words which appear in Amendment No. 5.
I hope I have given an undertaking with reasonable graciousness. I believe that my amendment as drafted will be very much more satisfactory than anything in the amendment of the noble Lord, Lord Taylor.
On Question, amendment agreed to.
The Lord Privy Seal (Baroness Young): I beg to move that the House do now resume.
Moved accordingly and, on Question, Motion agreed to.
House resumed.

The Franks Report
3.42 p.m.
Baroness Young: My Lords, with the leave of the House. I should like to repeat a Statement being made in another place by my right honourable friend the Prime Minister. The Statement is as follows:
"With permission, Mr. Speaker, I will make a statement about the report of the Falkland Islands Review Committee.
"The House will remember that I announced the setting up of the review committee in July 1982, after consultation with the right honourable gentleman the Leader of the Opposition and leading Privy Counsellors in other parties. At that time I expressed the hope that the committee would be able to complete its work within six months.
"The committee has justified that hope. I received its report on 31st December 1982, and I am presenting it to Parliament as a Command Paper this afternoon. Copies are now available in the Vote Office."—
I should like to add here that copies are now available in the Printed Paper Office—
"I should like to express the Government's gratitude to the noble Lord, Lord Franks, and to his colleagues for the amount of time and effort which they have devoted to producing such a thorough and comprehensive report in so short a time.

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"The report makes it clear that the committee was provided with all the papers relevant to its terms of reference, including a comprehensive collection of reports from the intelligence agencies. The committee's report contains a number of references to intelligence matters which would not in other circumstances be divulged. These references are essential for a full understanding of the matters into which the committee was asked to inquire, and the Government have agreed that the public interest requires that on this unique occasion the normal rule against public references to the intelligence organisation or to material derived from intelligence reports should be waived. The Government have, however, agreed with the noble Lord, Lord Franks, amendments to certain of the references to intelligence reports with a view to minimising potential damage to British intelligence interests. Lord Franks has authorised me to tell the House that he agrees that:
(1) All the references to intelligence reports included in the committee's report as submitted have been retained in the report as presented to Parliament, most of them without amendment;
(2) None of the amendments that have been made alters the sense, substance or emphasis of the reference to the intelligence report concerned, or removes anything of significance to the committee's account of the matters referred to it or to its findings and conclusions;
(3) Apart from those agreed amendments, no other deletions or amendments have been made to the committee's report as submitted.
"The report is unanimous and is signed by all the members of the committee without qualification. It falls into four chapters. The first gives an account of the dispute from 1965, when the issue was first brought formally to international attention by a Resolution of the General Assembly of the United Nations, to May 1979. The second covers the period from May 1979 to 19th March 1982. The third deals with the fortnight from 19th March to 2nd April 1982 which included the South Georgia incident and led up to the Argentine invasion of the Falkland Islands. The fourth and final chapter deals with the way in which the Government discharged their responsibilities in the period leading up to the invasion. There are six annexes, the first of which comments on a number of specific assertions made by people who have spoken or written on the matters in question.
"In the fourth chapter of the report—that is, the one which deals with the way Government discharged their responsibilities—the committee notes a number of points where in its judgment different decisions might have been taken, fuller consideration of alternative courses of action might have been advantageous, and the machinery of Government could have been better used. This chapter defines and addresses itself to two crucial questions:
(1) Could the Government have foreseen the invasion of 2nd April 1982?
(2) Could the Government have prevented the invasion?
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"The committee emphasises that its report should be read as a whole. At this stage, therefore, I will do no more than quote the committee's conclusions on these two crucial questions.
"On the first question, whether the Government could have foreseen the invasion of 2nd April, the committee's conclusion is as follows:
'266. In the light of this evidence, we are satisfied that the Government did not have warning of the decision to invade. The evidence of the timing of the decision taken by the Junta shows that the Government not only did not, but could not, have had earlier warning. The invasion of the Falkland Islands on 2nd April could not have been foreseen.'
"I have quoted the whole of paragraph 266.
"On the second question, whether the Government could have prevented the invasion, the committee's conclusion contained in the final paragraph of the report is as follows:
'Against this background we have pointed out in this chapter where different decisions might have been taken, where fuller consideration of alternative courses of action might, in our opinion, have been advantageous, and where the machinery of Government could have been better used. But, if the British Government had acted differently in the ways we have indicated, it is impossible to judge what the impact on the Argentine Government or the implications for the course of events might have been. There is no reasonable basis for any suggestion—which would be purely hypothetical—that the invasion would have been prevented if the Government had acted in the ways indicated in our report. Taking account of these considerations, and of all the evidence we have received, we conclude that we would not be justified in attaching any criticism or blame to the present Government for the Argentine Junta's decision to commit its act of unprovoked aggression in the invasion of the Falkland Islands on 2nd April 1982'.
"I have quoted in full the final paragraph of the report.
"Mr. Speaker, time will of course be found for an early debate, and that will be discussed through the usual channels. The Government will welcome an early opportunity of discussing the matters contained in the report more thoroughly than is possible this afternoon"
My Lords, that concludes the Statement.
3.50 p.m.
Lord Cledwyn of Penrhos: My Lords, we are grateful to the noble Baroness for repeating the Statement and we also thank the noble Lord, Lord Franks, and his committee for their hard work over the past six months. We have not yet had an opportunity to study the report, which is long and detailed. In fact, we regret that we did not have the opportunity to have a good look at the report in advance of the Statement. The report has just been made available, as the noble Baroness said, and this creates some difficulty for us. Obviously, we shall need a few days to digest it. I am

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grateful to the noble Baroness for what she said about a full debate at the earliest possible time. I hope that we shall be able to have that debate not later than some day next week.
I had not intended to say a great deal today because I have not had time to do more than skip through the report, but in view of the injunction mentioned in the Statement which has just been read by the noble Baroness, to read the report "as a whole", is it not wrong for the Statement to rely and concentrate on the conclusions alone? Is it not a fact that the report is also critical of a number of the actions of the Government over the last year or so—for example, the proposed defence cuts; the proposed sale of "Invincible" to Australia; the proposal to withdraw "Endurance"; and the attitude of the Government to the Falklanders in the British Nationality Act? All these neutralised any warnings given to the Argentine Government, and may have given them the impression that the British Government were not seriously concerned about the future of the Falklands. That is pretty well accepted throughout the country and it is why I say that to read the conclusions alone is a trifle misleading.
The Statement included a reference to paragraph 266; but again, is it not the case that the Government either misjudged or neglected the reports which were coming from the Argentine? I am referring not to intelligence reports but to public reports; namely, that some action would be taken in 1982 in relation to the Falklands or to the outlying islands. I refer to that because those two conclusions were included in the Statement. Can the noble Baroness tell the House—and this would be helpful in relation to the debate that we are to have, either next week or as soon as possible—how many meetings were held to discuss the Falklands, either in the Cabinet itself or in the appropriate Cabinet Committee, in the 12 or 15 months leading up to the crisis itself?
Finally, I assume that the Government accept responsibility for the deficiencies in the joint intelligence organisation which I understand is referred to in detail in the report. The noble Baroness will, I am sure, be prepared to accept that Ministers cannot detach themselves from the acts or omissions of civil servants, and that the consequences of anything they may do or any omission for which they are responsible, must be taken by the Prime Minister and her colleagues.
I shall not ask any further questions at this stage, but obviously I and all of those Members who will take part in the debate in due course will need to go into this full report in very great detail indeed.
Lord Gladwyn: My Lords, we, too, would like to thank the Leader of the House for repeating this obviously very important Statement. We would also like to join with the noble Lord, Lord Cledwyn of Penrhos, in congratulating my noble friend Lord Franks on producing this clearly intelligent and far-reaching report in the time laid down by the Government. It is clear also from the Statement that the conclusions of the report as quoted by the Prime Minister are satisfactory from the Government's point of view. The only point that immediately occurs to me is that if nobody in the Government is apparently to
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blame in any way for what occurred, why was it necessary for the former Foreign Secretary to resign on the issue? That is something which might well be explained to us in due course.
As for the rest, I agree very much with everything that the noble Lord, Lord Cledwyn, has said. We on these Benches at any rate can hardly be expected to make any intelligent comment on an important report before we have had the opportunity of reading it. It may be that, having done so, we shall discover in the general drift of the report matters for criticism of the present Government or perhaps of past Governments, if it comes to that, even though the conclusions as quoted by the Prime Minister do seem in themselves to exempt the Government at any rate—I do not speak of any other people—from blame.
I would very much back up what the noble Lord, Lord Cledwyn, has said about the necessity for an early debate, and I hope that that can be arranged for next week or at any rate as soon as possible.
3.55 p.m.
Baroness Young: My Lords, I should like to thank both the noble Lord, Lord Cledwyn, and the noble Lord, Lord Gladwyn, for what they have said about this Statement, and particularly to reiterate what we have said about our appreciation of the work of the noble Lord, Lord Franks, and his committee.
I should like to say something immediately about the proposals for a debate on this matter. I assure both noble Lords and the House that there will be an early opportunity for a full day's debate. I am not in a position today to announce exactly when this will be, but I can say that a debate next week is more than likely. As soon as the date has been fixed, and taking into account the arrangements in another place, either I or my noble friend the Chief Whip will come to the House later this week and make a business announcement on the matter. In view of that it would be far more appropriate to leave all the detailed discussion of this report until your Lordships have had an opportunity to read it and to consider the questions that they would like to ask.
I would, however, like to comment on three particular matters which the noble Lord, Lord Cledwyn, raised. First, it is the usual practice to produce the report at the time when a Statement is being made. Secondly, the conclusions which I read out in the Statement are the conclusions obviously based on the premise which goes beforehand, and the history as I have already indicated of this matter is fully set out and it was part of the terms of reference of the committee itself. Finally, I am sure that it would be the wish of the whole House when we talk about Ministers and responsibility, to say how very pleased we are to see my noble friend Lord Carrington in his place today. I hope we can look forward to hearing him when this matter is fully debated later on.
Lord Hatch of Lusby: My Lords, while agreeing entirely with the noble Baroness that it would be stupid to go into any of the details of the report this afternoon, there is one public matter concerning the report about which I should like to ask her a simple

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and straightforward question. We know that this report has not been distributed to the press any more than it has been to Members of this House. Yet last weekend there were a considerable number of articles of great similarity all slanted in a particular direction. Can the noble Baroness tell the House whether any official from any department of the Government, any representative of any department of the Government, gave any briefing, official or unofficial, to any member of the press about this report before it was published?
Baroness Young: My Lords, I cannot go any further than I have already indicated—of which I think all Members of your Lordships' House are aware—that copies of the report have been available to Members of your Lordships' House this afternoon. I would not wish to comment on press comments at the weekend, or indeed at any time leading up to the publication of this report.
Lord Hatch of Lusby: My Lords, that does not answer my question.
3.59 p.m.
Lord Diamond: My Lords, is the noble Baroness aware that we on these Benches also are most grateful to the Government for having repeated this Statement? We accept that at the time when a paper of this kind is being made available there should be a Statement accompanying it, and in those circumstances it is, of course, impossible for any of us to have had an opportunity of reading the report as fully as we would have liked to do before commenting on the Statement.
Nevertheless, is the noble Baroness aware that if I were a member of a Government which had been subjected to an inquiry by such a distinguished body which had produced a unanimous report, I would be bound to draw some satisfaction from the conclusions which had been reported? It would be avoiding the truth if one did not face up to that preliminary point and it would cause some considerable satisfaction outside this country as well as in it. I can only repeat the point made by the noble Lord, Lord Gladwyn, that not only are we delighted to find that there was apparently no reason for the noble Lord, Lord Carrington, to resign, but that he is here to hear us say this and will no doubt wish to add his comments in the debate.
We are grateful to the Government for what they have done in making available intelligence reports to the committee, and I have noted very carefully what the report says about that. Nevertheless, perhaps I could ask the noble Baroness whether, so far as she is aware, there is any occasion on which the committee asked for intelligence information which the Government did not think it appropriate to let them have. When it comes to the point of the debate, would it be possible for the Government to be prepared to deal not only with the detailed points within this report but also with the part that foreign policy has played subsequent to the report?—that is to say, subsequent to the date of 2nd April, which would make the debate more of a whole debate and less limited than it would otherwise be if it had to concentrate merely on events which led up to 2nd April.
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As to other details, I agree with the noble Baroness and all the previous speakers that they are for the subsequent debate in which we shall look forward to taking part.
Baroness Young: My Lords, I thank the noble Lord, Lord Diamond, for what he has said, and I think that he has made some very important general comments on the report. I should like to emphasise to the House that the Government set up the inquiry on the terms of reference which, of course, were agreed with the Opposition parties and which include the background to the particular dispute. I should also like to emphasise that it is a unanimous report and I am quite certain that my right honourable friend the Prime Minister, who has had such great responsibilities over this whole crisis and borne them so well, must feel a great sense of satisfaction with the conclusion as it is set out in paragraph 339, which is quoted in full in the Statement.
On the particular point about which the noble Lord asked me concerning intelligence reports, I can confirm that all intelligence reports were made available. On his other point about the debate that will take place, I think that it would be appropriate that the debate should take place on the report, which, of course, does not deal with the conduct of the Falklands campaign itself or matters subsequent to it, but which is concerned with all matters before the Argentine invasion.
Lord Molloy: My Lords, may I preface my question to the noble Baroness the Leader of the House with a statement of the fact that she can in no way give any answer this afternoon apropos the leaks that have appeared at the weekend in British newspapers. Having listened to her Statement, they seem to be remarkably accurate. What is disturbing and distressing is that this remarkable anticipation of the Franks Report has now found its way into the newspapers of other nations before we in Great Britain in this Chamber could hear the Statement this afternoon. May I ask the noble Baroness whether she would consider—and it would be absolutely irresponsible of anyone to expect a reply this afternoon—the remarks that have been made by myself and my noble friend?
Baroness Young: My Lords, I shall of course read the report of the Statement and the questions and discussion which have taken place upon it, but I think it would be completely inappropriate to comment on leaks or comments which have appeared in the press at any time, because I do not think that this is in any sense relevant to the debate, which must take place in the proper forum—which is Parliament—when everyone has had time to study the report itself.
Baroness Faithfull: My Lords, could we not pay tribute to the press for intelligent forecasts?
Lord Foot: My Lords, would the noble Baroness agree that it is a little unfortunate that a report of this importance, running to only 105 pages, should cost the general public £6.10 net?
Baroness Young: My Lords, I think that this is one of those occasions when you are getting very good value for money.
I think it would be the wish of the House that we should return to the Committee proceedings.

Mental Health (Amendment) (Scotland) Bill [H.L.]
4.6 p.m.
House again in Committee on Clause 1.
Lord Taylor of Gryfe Lord Taylor of Gryfe moved Amendment No. 5:
Page 1, line 6, at beginning insert—
("( ) After subsection (4) of section 2 of the principal Act there shall be inserted—
"(4A) In making his recommendation pursuant to subsection (4) of this section the Secretary of State shall have a duty to ensure that there are sufficient Commissioners for The Mental Welfare Commission to exercise their functions in accordance with section 4 of this Act and that the Commissioners are sufficiently representative of all bodies including relevant Voluntary Agencies as appears to him to be concerned.".")
The noble Lord said: I have already made some reference to this amendment, perhaps slightly out of order, but although I have had some assurances from the Minister in connection with the composition of the commission I should like once more to emphasise that in the past the commission has tended to be largely representative of professional people involved in this area, to the neglect or oversight of representation of the people who are affected by the treatment they receive under mental care.
Therefore, I suggested in a previous amendment that not only should the Mental Welfare Commission be strengthened by numbers, but that it should also be strengthened by way of the breadth of representation which should be on the commission, and particularly by representation of the patient who, in the last analysis, receives the care and treatment from the service and who might be considered as a possible member of the commission. It is fairly common now in the case of all commissions to represent the consumer interest, and perhaps it might commend itself to the Minister that in selecting the members of the commission he should pay attention to that particular source.
I beg to move my amendment.
The Earl of Mansfield: I had hoped that I had given a fairly reasonable undertaking to the Committee in relation to my amendment, Amendment No. 4, which is in fact an alternative to the noble Lord's amendment but which, if I may say so, is a much more acceptable one. We realise and accept that there will perhaps have to be wider consultation than there has been in the past. As I said, there has been a good deal of informal consultation, and that takes place with a variety of bodies. It has not extended to the major voluntary organisations, and I think that in future it will have to do so.
I think we must ensure that they are consulted; and I have no doubt that, being aggressive—and I do not say that in an offensive sense—but being mindful of the people whose welfare they particularly want to
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represent and enhance, they will make it very plain when the matter of representation comes up that the commission is composed of people who would be agreeable as regards the voluntary bodies. I think it is better to do it as my Amendment No. 4 seeks to do it rather than to make the Secretary of State under a rather vague obligation as to which is "concerned", as in the last sentence of the noble Lord's amendment. But I do not think there is very much between us.
Baroness Macleod of Borve: I wonder whether I may briefly twist the arm of my noble friend? I am certain that he is aware that in the Mental Health (Amendment) Bill for England the voluntary bodies are not stipulated but that they are very much concerned. I happen to be the national chairman of a large voluntary body relating to hospitals in this country and indeed in Scotland, where we have a large representation of leagues of hospital friends. I have already received forms from the Minister in England asking if my organisation, or any similar voluntary bodies, would be prepared to serve on the commission in England. I would hope that the Secretary of State for Scotland would ensure that the voluntary bodies, which can give so much help in this direction, would certainly be consulted in Scotland.
Lord Ross of Marnock: We are dealing with a very different point from that which we were dealing with in Lord Mansfield's amendment. His amendment was in relation to consultation. I am sure that the Secretary of State will be prepared to consult everybody in the whole of Scotland for that matter, but this is a different matter, and, to that extent, it is a much more important matter, because it deals with the recommendations that the Secretary of State makes to Her Majesty for appointment as a commissioner. We are now dealing with the actual appointments, where Lord Taylor of Gryfe's amendment specifically states that the Secretary of State has to ensure that the commissioners,
"are sufficiently representative of all bodies including relevant Voluntary Agencies".
That is a very different matter. I do not think that it is vague. It is rightly specifically naming the voluntary bodies which are interested and have been interested, and many of which have been pressing for many of the kinds of amendment that we have in the Bill, and for some further amendment to strengthen the hand of the commission. I hope that the Minister will look at this again and not brush us off with a suggestion, "Well, if they are consulted that will be all right. They will be quite happy." Consultation is not enough. So far as this amendment is concerned, it is, before making a recommendation, ensuring that the commission will have some representatives of such bodies.
Lord Winstanley: I, too, hope that in the fullness of time we shall have an assurance that the commission itself will include commissioners—I do not say how many—of whom some at least will be capable of speaking on behalf of the different voluntary bodies. There are slight difficulties in the noble Lord's amendment, in that he merely requires that the Secretary of State shall ensure that,
"the Commissioners are sufficiently representative of all bodies".

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There are so many voluntary bodies, and it would be possible to read into this the right of each and every one of the voluntary bodies to have a representative on the commission. I do not think that that is the intention of the noble Lord. Were each voluntary body which is active in Scotland—and I know that they are very active indeed—to feel that as a result of this particular clause it was entitled to have a commissioner, then the commission would become an unwieldy body.
Merely leaving it to the Secretary of State to ensure that "the Commissioners are sufficiently representative of all bodies" is, again, a very open kind of statement. Who is to say what is sufficiently, and what is insufficiently? I hope that at some stage the noble Earl will be able to come back to the House with an amendment which will make it clear that the voice of the voluntary bodies will be heard among the commissioners, whereas I doubt that, without some kind of amendment, we really have an assurance that that will in fact be the case.
The Earl of Mansfield: The noble Lord, Lord Winstanley, raises a point which goes a good deal further than what has so far been said so far as undertakings from me are concerned. I did not pursue the first part of the noble Lord's amendment because that was inherent in our first debate this afternoon, where I undertook to bring forward an amendment so far as the numbers and the composition of the body are concerned, which I hope will please everybody.
When I said that the Secretary of State, if this amendment was accepted, would be put under a rather vague duty or obligation, to which the noble Lord, Lord Ross, took exception, I meant no more and no less than that. I think that the noble Lord, Lord Winstanley, agrees with me. If one is going to have this as part of a statute one must do better than use such phrases as, "sufficiently representative of all bodies … as appear to him to be concerned". There are an enormous number of organisations, some of which are professional and some of which represent workers in the industry, so to speak, and, not least, there are the relevant voluntary agencies. It would be an extremely difficult task for any Secretary of State to carry out that obligation.
I cannot say at this juncture that I am committing the Secretary of State to actually appointing some person representing voluntary agencies as a commissioner. It would be quite wrong of me to do so at this moment, because it might well be that the Secretary of State, having taken the advice of such bodies—and let us not forget that they sometimes tend to have violently differing views, and probably all of us can think of examples—is going to have to steer some sort of a middle course to try to appoint one or more people who will be as nearly acceptable to all of them as possible, but certainly acceptable to the greater number.
I cannot take it further than that. It would be dishonest of me to do so. I assure the Committee that the purpose of this clause in the Bill is to try to ensure that in future the commission is going to be large enough to be able to carry out its greatly enlarged role, and, obviously, representative enough of all shades of
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opinion and experience to command general acceptance in Scotland.
Lord Taylor of Gryfe: May I encourage the Minister to read the last report of the Mental Welfare Commission for Scotland, which is titled, Does the Patient Come First? They comment on this area of concern for the patient with some critical comments on the National Health Service, and related to their own particular activities. On page 9 of that report they say that it appears to the Mental Welfare Commission that within the National Health Service the interests of the employees are taking precedence over those of the patient, and they recommend that the concern for the patient should be adequately represented in the commission and in the body which is going to handle these new responsibilities.
I can see the weakness which the noble Lord, Lord Winstanley, has mentioned in connection with my amendment, in that it would include in membership of the commission a large number of voluntary organisations. Perhaps there has been some unfortunate draftsmanship there. I am content to feel that the case has been made this afternoon for the inclusion of voluntary organisations who do tremendous, painstaking, difficult work in this area. The case has been made by the noble Baroness, Lady Macleod, with some experience that field. I would certainly commend to the Minister that representation of some of these committed people in the voluntary organisations, who have a deep concern for the rights of the patient, should be present in the commission. I should be content to leave it there.
Amendment, by leave, withdrawn.
4.20 p.m.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 6:
Page 1, line 6, after first ("of) insert ("the said")
The noble Earl said: This drafting amendment is consequential on Amendment No. 4. I beg to move.
On Question, amendment agreed to.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 7:
Page 1, line 11, leave out ("may") and insert ("shall")
The noble Lord said: Although this would make the simple change from "may" to "shall", I can recall some heated arguments on the subject, which has been debated often and at length; but I hope we shall not have that sort of debate today. What the Government are doing, strangely enough—and they are not doing it very well from the drafting point of view—is that, whereas at present the Secretary of State is empowered to pay the commissioners any remunerations and allowances, and so on (which everyone understood, and I do not think anybody ever complained about), we are now told:
"The Mental Welfare Commission may… pay to the said commissioners such remuneration",
and so on. While, seemingly, we have taken the Secretary of State out of it, we need have no fear; he is still there because the provision goes on to refer to such sums,
"as the Secretary of State may, with the approval of the Treasury, determine".
If the Secretary of State has determined the matter and has received the approval of the Treasury, why need we insert the word "may" in respect of the commission? Surely by that time we should say that they "shall" pay. The only possible reason not to say "shall" is that somebody will be working without payment, in which case that exception should be spelt out in the Bill. Normally, however, if the body receives the money from the Secretary of State with the approval of the Treasury, that money should be paid to the commissioners.
In any event, I do not like the new idea at all. I think it was better as it was. The Government have become confused, especially over some of the provisions we shall be discussing later about who pays what to whom, and who provides what. Whereas what we are discussing now applies only to commissioners, later we shall be discussing the same sort of dilemma in relation to staff, who are provided for by the Secretary of State and paid for by the commission.
I see no justification for the "may" in this provision. If it is included because of the exception I posed—the possibility of somebody working without payment; which has been known to happen—that should be provided for; otherwise, it gives far too big a discretion, not to the Secretary of State this time but to the commission, which could even bring pressure to bear on people by saying, "We expect you to work for nothing". I beg to move.
The Earl of Mansfield: This is similar to a number of amendments which follow, but I will take this one on its own, as the noble Lord did. If accepted it would require, rather than enable, the Mental Welfare Commission to pay remuneration to commissioners and to make provision for pensions, and so on. The fact is that some commissioners may not wish to receive any remuneration. For example, Lord McDonald, the chairman, as a High Court judge, is prevented by virtue of his office from accepting remuneration. Thus, if "may" was changed to "shall" it would be forcing the commission to do what some of the commissioners would not want it to do.
It is essential that somebody has power to pay remuneration to the part-time commissioners and salaries to the full-time commissioners. At present, as the noble Lord correctly states, it is the Secretary of State who exercises this power. Clause 1 proposes that in future the commission should exercise the power, in line with other provisions which, in effect, will place in their own hands the management of their own financial affairs, which I think will be much more satisfactory.
Coming back to the wording of the amendment, it is better—indeed, it is undesirable and unnecessary to impose upon them a duty to pay people who do not wish to be paid or who are perhaps estopped from being paid—to leave the provision as it stands, rather than insert the word "shall", which would enjoin them to do what they would not want to do.
Lord Ross of Marnock: The Secretary of State is still in command because the provision concludes with the words:
"as the Secretary of State may, with the approval of the Treasury, determine".
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It is only playing, therefore, to suggest that more power is being given to the commission in this matter; the position will be exactly as it was before from the commission's point of view.
In saying "may" instead of "shall" there is the danger that the commission may say, "We need not give any money because so-and-so does not take it, nor does so-and-so", and there will be pressure on some people to say, "In that case, we will not take it, either", when it may be they are in desperate need of the money. After all, there is nothing to prevent them taking the money and returning it: doing that would meet all the legal demands on a judge or anyone else. I am not entirely happy with the noble Earl's reply, but I shall not continue the argument here. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.28 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 8:
Page 1, leave out lines 14 to 16 and insert ("allowances").
The noble Lord said: The lines which the amendment propose to leave out read:
"The Mental Welfare Commission may … make provision for the payment of such pensions, allowances or gratuities to or in respect of the said commissioners".
We have been told that they will be in office for about four years. We have also been told that a learned judge has been there for 17 years. He will be pensioned off as a judge, so I do not think he will be further pensioned off for a position in which he did not take any salary.
Will the commissioners all be full-time? If so, I can understand the justification for there being pensions. If not, may we be told when all this started? Remember, if they are only part-timers, that means they have other jobs and, according to the law of the land, those jobs must be superannuated, either in the Government or private sense. So when did we start this business of giving pensions or gratuities to part-time commissioners who may be in position for only four years?
We are more and more going over to this business where everything must be paid for; it is coming more and more into new towns and everything else, that, somehow or another, people are paid pensions for part-time work. I know it was not the case when the noble Lord, Lord Strathclyde, was chairman of the Hydro Board. This kind of thing did not apply then. I think he would just have shrugged his shoulders and said, "No. I do not want this kind of thing". I want to know the philosophy behind this and whether we can justify payment of a pension for, it may well be, a chairman who works part-time, with perhaps two-fifths of his time being applied to the duties. If he is there for only four years, how much pension does this represent? How is it justified? Allowances, yes. That is fair enough. But to go on to the question of gratuities and pensions is being a bit generous with public money. I beg to move.
The Earl of Mansfield: I seem to have heard the noble Lord's argument before on this matter in some of the other legislation that we have dealt with in the last three and a half years or so. This is a perfectly ordinary power, a permissive power, that in future the commission which, as I have said, is responsible for its

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own finances, so to speak, can pay pensions, allowances and gratuities in respect of commissioners. The Treasury has requested that as a matter of course in future such provisions should be written into this sort of legislation even if, in fact, there are not to be or were not any full-time commissioners at the moment. It is a permissive power which takes effect for the present and in the future.
As we know, there are two full-time commissioners and there may in future be more. I think it is axiomatic to their taking the job that they should be entitled to remuneration, to salaries, if they are full-time and, when they retire, to pensions. I see no reason why this appointment should be an exception to the rule. There are also occasions when small pensions are paid to chairmen or members of bodies such as this who have put in enough time to become entitled to pensions, and I see no reason or any justification for removing the proposed power to provide for pensions to be made.
I want to stress to the Committee that the payment of remuneration and provision of pensions or allowances or gratuities are all subject to the approval of the Treasury, so that there is no question of there not being perfectly adequate financial control over any payments that the commission may propose to make. All that it is is an enabling power to behave—properly, some may think—in relation to its quasi-employees just like any other body of this nature.
Lord Winstanley: Before the noble Lord, Lord Ross of Marnock, decides what course of action he will pursue with regard to his amendment, may I say a word which perhaps he might consider in relation to what has been said already. I share his view about certain aspects of the amendment that he has moved. I think that we can perhaps lean over rather too far in relation to paying people for the kind of duties which in the past were generally regarded as being jobs which people did because they wanted to do them. But there is another aspect of this matter which ought to be borne in mind, and particularly with a commission such as this, on which it is possible that perhaps we may want quite senior medical people or professional people who are in employment to take on the duties of a commissioner for, it might be, two days, three days or even four days a week. It might perhaps be necessary before a person could accept appointment as a chairman or as a member of the commission that that person should give up full-time, superannuated employment. I am aware of cases where this question has arisen, and I have a particular case in mind.
Where a person is persuaded to become a commissioner and, in order to do the work of a commissioner effectively, decides to retire from superannuated employment, then I think that it is perhaps appropriate for the period of his office and for this particular commission that he might benefit from this being superannuated, or pensionable in some form, to make up for the kind of sacrifice that he has made in order to take up the appointment. Those cases are rare, but I think they are less rare in relation to a commission of this kind which may require the services of professional people than they are in some of the other commissions about which the noble Lord may be thinking.
Lord Ross of Marnock: All these commissioners, since the year 1962 when the commission was set up, have been labouring under this situation; and I have never heard a single complaint. Not one! The position at the moment is that the Secretary of State may pay to the said commissioners such remuneration and allowances as he may, with the approval of the Treasury, determine. If the question is one of full-time commissioners, then I can understand. In fact, where anyone is employing anybody at all under the laws of this country, there has to be superannuation. It might not be very much in the Government scheme, but that is part of the terms of employment.
I do not see why this should be extended. Although the Minister says that it is permissible, it is entirely up to the commission itself. I am not terribly happy about it. I want to know when this practice started. When did this generosity of the Treasury, who now insist that this should be common form in all this kind of legislation, begin? I might even have been Secretary of State myself when it started. I do not remember it. But it is as well to know. It may be that the information is not readily available. If we can return to this at a later stage, then for the moment I am prepared to withdraw the amendment. But I myself am happy that allowances are adequate to meet this case as they have been for the past 15 years or so.
Amendment by leave, withdrawn.
The Deputy Chairman of Committees (Lord Nugent of Guildford): Before calling Amendment No. 9 I should inform your Lordships that if this amendment is agreed to I shall not be able to call Amendment No. 10.
4.39 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 9:
Page 2, line 1, leave out subsection (7A).
The noble Lord said: I should like to know what all these things mean. I wish I had the time to go into the Library and sit for hours going through the provisions of the National Health Service Act 1978 as now applied to health boards, Section 85(1), (2A), (4) and (6), and so on. But why should I? We have a Minister here who is paid to enlighten us. Can he tell me exactly what these mean—these heads (a) and (b) of (7A)? I am interested particulary in the provisions about expenditure being met by the Secretary of State and Sections 85A(1) to (3), which impose financial duties. What are the financial duties? I beg to move.
The Earl of Mansfield: Clause 1 inserts this new subsection (7A) into Section 2 of the principal Act. Subsection (7A) applies to the Mental Welfare Commission as they apply to a health board certain provisions of the National Health Service (Scotland) Act 1978 as amended by the Health Services Act 1980, and these provisions will enable the Secretary of State to meet the expenses of the commission and will oblige the commission to maintain accounts and observe other financial proprieties. Without these provisions, the commission will not be able to function because there will be no means of defraying their expenditure. What in fact this does is to regularise the funding of the commission.
Lord Ross of Marnock: That is to say, the new funding of the commission?
The Earl of Mansfield: That is right.
Lord Ross of Marnock: So all this arises out of the changes that we have already made which are, to my mind, illusory in giving a greater measure of freedom and independence to the commission; whereas we have already discovered that they are independent and free so far as the Secretary of State will allow, and so far as the Treaury will allow the Secretary of State to allow them to allow. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lyell Lord Lyell moved Amendment No. 10:
Page 2, line 8, leave out ("to") and insert ("and").
The noble Lord said; This is a minor drafting amendment. It is intended that subsections (1) and (3), which we find in Section 85A of the National Health Service (Scotland) Act 1978, should apply to the Mental Welfare Commission in the same way that they apply to a health board, but not subsection (2) of Section 85A because this is wholly irrelevant. With that brief explanation, I beg to move the amendment.
On Question, amendment agreed to.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 11:
Page 2, line 10, leave out ("may") and insert ("shall").
The noble Lord said: This is the "may" and "shall" argument again. The Bill reads:
"The Secretary of State may provide for the Mental Welfare Commission such officers."
There is no question of these officers not being anxious to be paid, I am perfectly sure. There is no reason to my mind why the word "shall" should not be used. That will give some reassurance to the commission that they really are going to get something. I beg to move.
The Earl of Mansfield: There is a very good reason in this particular instance. If we take Amendments Nos. 11 and 12 together, it would in effect mean that the Secretary of State would be under a duty to provide the commission with such accommodation, and so on, as they may require. If we equate the word "require" with demand, then the commission would be in a very enviable position indeed. I do not believe that any Secretary of State would want to be under that duty. In this particular instance, I say all the more strongly that this is a case where the Secretary of State should be provided with a power. He obviously must have power to enable him to provide the commission with accommodation. It is quite unnecessary for him to have to be under a duty to do so. I do not believe that any Secretary of State is likely to leave the commission without a roof over its head. Equally, he should not be placed under a duty by statute to have to give whatever they shall require of him.
Lord Ross of Marnock: Why does the Secretary of State need to do this under the new régime, the new power, the new freedoms that we are giving to the commission? Why do they not do it for themselves?
The Earl of Mansfield: They have to have the cash.
Lord Ross of Marnock: Of course, they have to have the cash. We have already been told that they are going to get the cash. They are going to get the cash from the Secretary of State. All this comes from the change which is quite unnecessarily being made by the Government. It does not end there. I have another amendment which I shall come to—I think we had better come to it right away, so I shall withdraw this amendment. We are getting nowhere, anyway, with "may" and "shall". I shall proceed to the next amendment with more hope.
Amendment, by leave, withdrawn.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 12:
Page 2, line 11, leave out from first ("such") to end of line.
The noble Lord said: This invites the Government to remove certain words from "such" to the end of the line. At the moment the provision reads:
"The Secretary of State may provide for the Mental Welfare Commission such officers and servants and such accommodation as the Commission may require".
I suggest that we leave out the officers and servants but we leave in the accommodation. Why do I suggest that? If we turn in our "hymn books" to page No. 3, with Clause 5 thereon, we find that it says that the Mental Welfare Commission may appoint officers and servants, and may make provision for the payment of remuneration to people appointed as officers and servants, and so on. What is this provision doing here? I think there has been some rather strange drafting. It certainly escapes me as to why this should be in the Bill twice. The Secretary of State is going to provide for the Mental Welfare Commission officers, servants and accommodation that are required. I leave "accommodation" in because that is not mentioned in Clause 5. Perhaps the Minister of State can give me a simple explanation that I have overlooked. But, for the life of me, I do not see it. If we are going to have Clause 5, what are we going to do with this one? Why is it needed at all? I beg to move.
The Earl of Mansfield: It is becoming increasingly difficult for me to reconcile the evident desire of the noble Lord, Lord Ross, to extend the function of the commission with his apparent desire to render the body completely ineffective—and, worse than that, inactive. His Amendment No. 9 would have deprived the body of all financial support; this amendment taken with a desire to leave out Clause 5—which comes later—will deprive them of all their staff.
The purpose of this particular subsection (7B) is to enable the Secretary of State to continue to provide staff for the commission. The reason is simple: the commission has a small staff and it is desirable that any unforeseen reduction in that staff should not result in delay to the work which may be of very considerable importance to individual patients. The Scottish Office has a relatively large staff. It is in a position to help if the commission suddenly finds itself short-handed. So by retaining the Secretary of State's power to provide staff, what we do is enable the Scottish Office to provide immediate help without any formality if the commission should experience a temporary staffing crisis.

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I urge the noble Lord not to take such a suspicious view of what we are trying to do, which is to enable the commission financially and actually to stand on its feet, with the restraints appropriate to any such body, and at the same time to have the maximum flexibility; and we want to provide help in this particular instance if it should be needed.
The Earl of Selkirk: The point that the noble Earl has made is interesting. The Mental Welfare Commission will now be entirely independent. It will appoint its own staff in the ordinary way. This amendment allows the Secretary of State to give help temporarily to fill some immediate requirement, or possibly one that will arise in the immediate future until the commission has time and opportunity to appoint its own staff. The object is that the commission staff shall eventually be its own. Am I right in thinking that, or is there some other explanation?
The Earl of Mansfield: My noble friend is perfectly right. This is what I might describe as a "top-up" power to help out, so far as staff is concerned, in an emergency.
Lord Ross of Marnock: But why should that be so? Clause 5 of the Bill says that the Mental Welfare Commission may appoint, under (a) and (b), such persons,
"as the Secretary of State may, with the consent of the Treasury, determine."
There is no need for any top-up. What is happening is simply that the Secretary of State still has to provide the money: that is really what the Minister of State is saying. He is making the change in the Bill so that it appears to everyone that the commission is now going to be its own master. It is not going to be its own master; and this is being done by "doctoring" a Bill, putting something in Clause 1 and then putting in a new Clause 5, when really what we ought to have had was a new Bill. We could then all have understood what was happening and the Minister of State would not have got tied up in a "topping-up" explanation which, to my mind, has no relation at all to what is being done here. If he had said to me that if I proceeded to destroy this particular subsection it would mean that the Secretary of State had no statutory power to give any money to the commission, then I could have understood it. But I do not know that the Scottish Office knows what it is at in respect of the draftsmanship of this.
The Scottish Office is not responsible. It was the Government who decided that they wanted only to have an amending Bill, and to anyone who has tried to amend this Bill I can say that it is very, very confusing indeed to try to amend it. I am sorry to say that I spent most of Christmas and New Year trying to do that—I have got to do something with my spare time. I am not going to do anything in the next fortnight, so let us have a return to this long after the Burns Supper period. These are simple facts and the Minister of State has tied himself into knots about the complexity of the draftsmanship. However, I will not worry him too much on this at the moment. I will return to it on a belated Report stage. It may well be that it will be Third Reading before we get round to this and get a
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suitable explanation from the Secretary of State. Meanwhile, I beg leave to withdraw this amendment and will leave him to reconsider it himself before the next stage.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Nugent of Guildford): I should explain that Amendment No. 13 has taken the wrong place on the Marshalled List. It will be a pleasure postponed for the noble Lord until after Amendment No. 15, when I shall call it. It is an amendment, in effect, to Clause 2.
Clause 1, as amended, agreed to.
4.47 p.m.
Lord Taylor of Gryfe Lord Taylor of Gryfe moved Amendment No. 14:
After Clause 1, insert the following new clause:
("Duty of Mental Welfare Commission in respect of persons suffering from mental disorder.
. For subsection (1) of section 4 of the principal Act there shall be substituted—
"(1) It shall be the duty of the Mental Welfare Commission generally to exercise protective functions in respect of persons individually or collectively who may by reason of mental disorder require care or be incapable of adequately protecting their persons or interests, and, where those persons are liable to be detained in hospital or subject to guardianship under the following provisions of this Act, their functions as aforesaid shall include in appropriate cases, the discharge of patients in accordance with the said provisions.".").
The noble Lord said: I have a great deal of sympathy with the noble Lord, Lord Ross of Marnock. As was said on Second Reading, it is a great pity that the opportunity was not taken to introduce a new Bill, because in amending this legislation we have to make references to other Bills. But here it is and, though I, like the noble Lord, Lord Ross, find some difficulty in the semantics of this Bill, I am concerned about Amendment No. 14 and consequently No. 15, which are not dealing with the "mays" or "shalls" of the Bill but are dealing with the responsibilities of the Mental Welfare Commission.
These amendments are key amendments, policy amendments, and have been prepared in consultation, if I may say so, with the Scottish Association for Mental Welfare, the Glasgow Association for Mental Health and the voluntary Link organisation, which is concerned with the after-care of people who have suffered from mental illness. The important thing about Amendment No. 14 is that, while the Mental Welfare Commission's responsibilities are clearly defined, we are suggesting here that they should have an additional responsibility. The fact is that the commission responds on the initiative of individuals who feel that they have a complaint in connection with wrongful detention or maltreatment, and so on. The important phrase in this amendment is this:
"It shall be the duty of the Mental Welfare Commission generally to exercise protective functions in respect of persons individually or collectively who may by reason of mental disorder require care or be incapable of adequately protecting",
and so on. This means that it moves away from an individual's initiative for establishing complaints into the more general area of looking at policy for the care of the mentally ill.
I think that it is a key amendment and would be a useful addition to the responsibilities. It gives the

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Mental Welfare Commission a much broader responsibility to be concerned about those suffering from mental disorder, wherever they may be, without the patient initiating the contact by complaint. It is not limiting the commission to dealing solely with questions of release from compulsory detention. Consequently, if we were to take the opportunity of giving extended power to the commission, I think we could do it in this amendment and it would do a great deal to assure those who are concerned with mental welfare that the commission is going to be an important and a central body as regards policy. I beg to move.
The Earl of Mansfield: I understand the desire of the noble Lord to require the commission—I think I am more or less using the words he used—to move into a more general arena. The way the noble Lord intends to do it is by inserting the words "individually or collectively" and, secondly, the words "require care or" into the existing provision. I have to say to the noble Lord that the word "persons" is not made any more general by adding these words "individually or collectively". The expression,
"persons who may by reason of mental disorder be incapable of adequately protecting their persons or interests",
does embrace all those who require care. In other words, what I am saying to the noble Lord is that, if he thinks that by the insertion of these words into the Bill or into the Act he is transferring or enlarging the commission's attentions to classes of person rather than to individuals, then I have to tell him that these words are ineffective and unnecessary to achieve that purpose. No doubt this will be discussed in connection with the next amendment No. 15 and I do not want to anticipate that debate: nor do I want to anticipate my own amendment, which is No. 18 and which I think meets the aim of the noble Lord rather more effectively. However, as I say, we shall come to that shortly.
So persons who are incapable, by reason of mental disorder, of adequately protecting their persons or interests certainly include persons who require care. It is a wider expression. There may be people who could not be described as needing care who would, nevertheless, be incapable of adequately protecting their interests. So, as I say, the additional words do not broaden the scope of the existing provision.
The terms, as they exist at the moment, in Section 4(1) have never prevented the Mental Welfare Commission from exercising their protective functions in respect of groups of patients, rather than individuals. I think that we can in other ways ensure that the commission are not inhibited in raising wider issues on behalf of patients in general, which is a somewhat different matter. I hope that the noble Lord will realise that, in many ways, I am sympathetic to what he seeks to achieve. But I do not think that the way in which he seeks to achieve it is particularly effective and I believe we can do rather better in the later amendment.
The Earl of Selkirk: I have great sympathy with what the noble Lord, Lord Ross, has said. It is frightfully difficult to find out what this Bill covers. I have been more lucky, perhaps, in that I have not succeeded in getting a copy of the 1960 Act, but it is
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extremely difficult for me to follow this Bill. The noble Lord, Lord Taylor of Gryfe, has made a number of points which we must all feel are right. This is the sort of thing which the Mental Welfare Commission should be able to do. My noble friend has told us—and I have to accept this—that the amendment is unnecessary and that this point is covered by different words in other places. Am I right in that? As I understand it, it is the job of the commission to protect their persons. Is this properly covered, or do words which are at least in line with what the noble Lord, Lord Taylor, has suggested, need to be incorporated at some point? I cannot follow closely enough either this Bill or the principal Act to be sure about that, and if my noble friend could give an assurance I should be very grateful.
The Earl of Mansfield: I sympathise with my noble friend. This method of textual amendment of previous Acts is not one which means that one can pick up the Bill and immediately understand what the Government are trying to do. What I said to the noble Lord, Lord Taylor, was that, so far as the powers and functions are concerned, the Mental Welfare Commission can already do what he seeks to allow them to do by virtue of the amendment. They are perfectly capable of doing that, as the original Section 4(1) stands.
But what the noble Lord, Lord Taylor of Gryfe, seeks to do—and I have no doubt that we shall come to it in later amendments—is to widen the scope of the commission's activities. I see him nodding. As I have said, that is something for which I have a certain sympathy. But there is a Government amendment, Amendment No. 18. It would not help our deliberations to start talking about it now, but a casual look at that amendment shows that it sets out the duty of the Mental Welfare Commission in a way which I say will achieve what the noble Lord wants to achieve, in a way which is better than trying to write into the Bill, in a perfectly praiseworthy manner, what the commission are not stopped from doing already.
Lord Ross of Marnock: Surely, the question is whether or not they are doing it. The feeling is abroad—and we should like to be corrected on this—that the commission are a very passive organisation, that they sit and wait for complaints and that they are not the kind of dynamic organisation which should be improving the whole care and attention that is being paid to people who are suffering from mental illness. That is why we hoped that we would get a different Bill, a new Bill and a Bill in advance of what is being done, instead of this jogging amendment Bill which nobody can understand without a great deal of trouble. That is because, even if you have available the original Act, you discover that that has been amended three or four times.
I am sure that the Public Bill Office must be furious with me for having sent down an amendment, for then having sent down an amending amendment and for them 'phoning down to amend the amending amendment, in order to get it right. With all due respect, if we are to be able to do the job which the House of Lords must do, we must have the wherewithal to do it. We are not even provided with an amended principal Act, in order that we can readily

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understand. I am sure that the noble Earl, Lord Selkirk, would have welcomed something like that. He has asked time and time again that we should be provided with this kind of basic information, in order to be able to do the job of the House of Lords. The House of Lords inflates its importance by saying that we are doing our job. But we are not doing it; if we cannot understand the Bill, then we cannot amend it. Possibly, this also applies to another place as well. If mystification is the purpose of the Government, then they are succeeding.
What we are concerned with is, first, strengthening the commission and, secondly, ensuring that they carry out their functions. Protection for people suffering from mental illness within the community is not provided in all cases. It is not entirely the task of the commission to do that, because there are other authorities. But unless the commission are empowered to ensure that that is done—and health authorities and local authorities are also involved—then the task will never be done. I think that that is the main concern of the noble Lord, Lord Taylor.
It is a very serious matter, when we have 23,000 people—I do not know how many more there will be within the next month—who are dependent on the kind of protection and care which they get through the principal Act, as now amended. The Minister should appreciate that what we are saying is that the patient should come first, whether he is in hospital or outside. I am more concerned in respect of the commission's functions and responsibilities as regards people who are not detained in hospital, and I do not think that this function is being carried out properly, either by the commission or by local authorities.
The Earl of Mansfield: The noble Lord, Lord Ross, was out of the Chamber at the beginning of my original discourse and I shall not weary the Committee with a repeat of it. But one must get straight, if one can, the fact that there are two aspects to this question. First, there are the powers of the commission and, secondly, there is the question of their duty and how it is that they shall be enjoined, so far as a statute can enjoin a body such as this, to carry out that duty. What I have said, so far as Amendment No. 14 is concerned, is that the words which the noble Lord, Lord Taylor of Gryfe, seeks to insert into the Bill will not give the commission any new powers over and above those which they already possess. Indeed, they can do everything which is, in effect, implied by the words in the amendment of the noble Lord, Lord Taylor. So that, so far as the legalities are concerned, the amendment is not advancing us one whit.
I turn now to what I know is the desire of the noble Lord, Lord Taylor, the noble Lord, Lord Ross, and, possibly, my noble friend Lord Selkirk. They want to see to it that the commission play a rather larger part than they have played up till now. I hope noble Lords agree when we come to Amendment No. 18, which is a Government amendment, that we are going some way to doing what they want. But as regards this amendment—and I do not say this offensively—the words are quite pointless.
Lord Taylor of Gryfe: In view of the fact that we are to consider Government Amendment No. 18, which deals with this matter, at this stage I am prepared to withdraw Amendment No. 14. I hope that the points made will be taken care of, as the Minister assures us they will, in the amendment which he is to move. I beg leave, therefore, to withdraw Amendment No. 14.
Amendment, by leave, withdrawn.
5.10 p.m.
Lord Taylor of Gryfe Lord Taylor of Gryfe moved Amendment No. 15:
After Clause 1, insert the following new clause:
("Duties of Mental Welfare Commission.
For subsection (2) of section 4 of the principal Act there shall be substituted—
"(2) In the exercise of their functions as aforesaid and without prejudice to the generalities of these it shall be the duty of the Mental Welfare Commission:

(a) to ascertain any case where it appears to them that there may be ill treatment, deficiency in care or treatment, or improper detention of any person who may be suffering from mental disorder, or where the property of any such person may by reason of his mental disorder, be exposed to loss or damage, and to act in accordance with its duties and requirements under subsections (c) and (d) of section 4.

(b) to visit regularly, and as often as they may think appropriate, patients who are liable to be detained in a hospital or who are subject to guardianship and in the case of patients liable to be detained in a hospital, so to visit each of them at least once every' three years and on any such visit to afford an opportunity, on request, for private interview to any such patient as aforesaid or, where the patient is in a hospital to any other patient in that hospital.

(c) to bring to the attention of any Board of Management or of any Local Authority the facts of any case in which in the opinion of the Mental Welfare Commission it is desirable for the Board of Management of the Local Authority to exercise any of the functions of that Board or of that Authority to secure the welfare of any patient suffering from mental disorder by

(i) preventing his ill-treatment.

(ii) remedying any deficiency in his care or treatment.

(iii) terminating his improper detention, or

(iv) preventing or redressing loss or damage to his property.

(d) to bring to the attention of any Board of Management, Local Authority, Local Health Authority, or other body, any matter in which, in the opinion of the Mental Welfare Commission, that Local Authority, Board of Management or other body might exercise any of its functions to promote the welfare of persons suffering from mental disorder".").

The noble Lord said: In so far as it extends the responsibilities of the Mental Welfare Commission, Amendment No. 15 develops the argument which I advanced on Amendment No. 14. As the noble Lord, Lord Ross of Marnock, said, the commission tends to be a rather passive organisation, apart from the fact that it responds to individual complaints on discharge of maltreatment and so on. Because, by tradition, the commission has been rather circumscribed, apart from the law on the matter, it does not take the positive action which is called for in any new Bill dealing with the care of the mentally ill. The proposed Amendment No. 15 tries to give it a much more positive impact.
The key words in the amendment are that it shall be the duty of the commission in the exercise of its functions to ascertain any case where it appears to it

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that there may be ill-treatment, deficiency in care, and so on. It will not wait until a patient applies. It will try to ascertain where adequate care is not being provided. This does not mean that it will go and look at patients in hospital or visit hospitals which care for the mentally ill. It may try to ascertain where there is a need by going to places like model lodging houses in Glasgow to ascertain whether there is a need for treatment of people who find themselves in these unfortunate circumstances but who have never heard of the Mental Welfare Commission.
The amendment provides for much more extended and substantial responsibilities for the Mental Welfare Commission. First, it would give it the duty to seek out or to ascertain. It would give it the power to fund research into how far the mentally ill are being cared for. It might wish to find out how many people are taking advantage of the Mental Welfare Commission facilities and how many have not heard about it. It would have a monitoring and advisory role in connection with the policy of care for the mentally sick. For that reason it would have the additional responsibility of drawing attention to local authorities which perhaps make inadequate provision for the care of the mentally ill. These broad responsibilities are necessary in order to make the Mental Welfare Commission a positive and an important body for the care of the mentally ill.
Like the noble Lord, Lord Ross of Marnock, I spent some time over Christmas trying, though with great difficulty, to prepare amendments to the Bill. At the same time, I spent a good deal of time with some of the people who are engaged in caring for the mentally sick. It is a great national problem in Scotland. Indeed, it is a much bigger problem in Scotland than it is in England. In certain areas of medicine we have been able to pioneer new techniques. The original Act was a pioneering Act. I suggest to the Government that in this case they have a chance to lay down responsibilities which will make the commission a powerful, important and dynamic force in the treatment of the mentally sick in Scotland. I move this amendment with, I hope, some conviction.
Lord Lyell: I am sure your Lordships will have listened with very great interest to the eloquent moving of his amendment, and the principles which lie behind it, by the noble Lord, Lord Taylor of Gryfe. I assure the noble Lord, Lord Taylor of Gryfe, the noble Lord, Lord Ross of Marnock, and all your Lordships that the Government are very willing to accept in part—and I stress "in part"—the principle of Amendment No. 15. However, may I draw the attention of the Committee to new paragraph (d) of the amendment? Your Lordships will see that this amendment would substitute a new subsection (2) for subsection (2) of Section 4. The effect of paragraph (d) would be to require the Mental Welfare Commission to draw the attention of various bodies to the matters which would affect the interests of persons suffering from mental disorder.
May I draw the attention of your Lordships, and especially the attention of the noble Lord, Lord Taylor of Gryfe, to Amendment No. 18, to which I shall speak later? Your Lordships will see that Amendment No. 18 proposes that a new subsection (6) should be substituted for subsection (6) of Section 4. It would
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have the same effect as the new paragraph (d) of Amendment No. 15. But there is one part of Amendment No. 15 which is not reflected in the Government amendment. I refer to the amended text of paragraph (a) of subsection (2) in Section 4. The commission's present duty is to inquire into any case which comes to its attention where there may be ill-treatment, neglect or something of that kind. The amendment would make it the duty of the commission to ascertain any such case and then to act in accordance with its duties under the other provisions of Section 4.
I assure the Committee that the alterations suggested by Amendment No. 15 would have no real effect other than to cause a certain amount of confusion. The duty of the commission under paragraph (a) is properly expressed as a duty to make inquiry. A case might come to its attention in which it would be bound to pursue its inquiry until it was satisfied as to the outcome. At one extreme the inquiry may consist of such simple matters as a telephone call, or a visit by an officer of the commission or by a commissioner. At the other extreme it may consist of a formal inquiry under the powers which are set out in paragraph 3 of Schedule 2, which your Lordships will find on page 41 of the Bill. Certainly it is the duty of the commission to establish whether there is any case to be answered. A criminal charge case would be referred by the commission to the procurator-fiscal.
At this stage I agree to consider the implication of the words, "to ascertain any case". I shall certainly take that point on board. I hope that the noble Lord, Lord Taylor of Gryfe, will be content with the acceptance in principle of this part of the amendment which he has moved.
The Earl of Selkirk: As I understand the noble Lord, Lord Taylor of Gryfe—I have great sympathy for his point of view—in his amendment he is putting a clear duty on the Mental Welfare Commission. He says that it shall be the duty of the Mental Welfare Commission to ascertain. As far as I can see in Amendment No. 18, there is a duty to advise the Secretary of State but there is no clear duty to ascertain. That seems to be the difference. Could this be considered at another stage? I believe that the noble Lord is right in that the intention of Amendment No. 18 is much the same—but I am not clear that it is a negative action, rather than a positive action, which is what the noble Lord is trying to emphasise.
Lord Lyell: I hope that my noble friend will accept that we have agreed to consider this matter—the question of ascertainment—which has been raised. I am not clear about the negative or positive aspects raised by my noble friend as I consider that Amendment No. 18 will place a duty on the commission to advise the Secretary of State and to bring certain factors to his attention. I hope that before the commission carried out either of these two duties, they would certainly ascertain all the factors which lay in the particular case. I will give an undertaking that we will consider this matter of ascertainment raised in Amendment No. 15. I hope that the noble Lord, Lord Taylor of Gryfe, will accept that. We take on board the

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principle of Amendment No. 15, but we believe that this object can be achieved by Amendment No. 18.
Lord Taylor of Gryfe: I accept the noble Lord's assurance that the Government will look at the positive functions of the commission, but the noble Lord has not replied on the more general functions of the commission in its duties to conduct research or ascertain and monitor the performance of local authorities and other bodies in this area. I am not sure that Amendment No. 18 covers this point, but I await with interest the statement on Amendment No. 18 and will accept the assurance given by the noble Lord, Lord Lyell, in respect of the introduction of responsibility for ascertainment being a function of the commission.
Amendment, by leave, withdrawn.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 13:
Page 2, line 13, at beginning insert—
("(1) In subsections (1) and (2)(b) of section 4 of the principal Act references to "guardianship" shall be omitted.")
The noble Lord said: This amendment may strike some people as being rather curious, and I am the first to admit that it does not do what I would like it to do. Its function is to raise a subject which has been raised both publicly and privately by the Scottish Council for Civil Liberties and by the Scottish Association for Mental Health: the value of the whole question of guardianship with regard to mental health. In the Second Reading debate the figures were quoted showing those in Scotland who are subject to this type of guardianship, and they are remarkably few, which shows that there is less and less resort to guardianship.
Guardianship of this kind means the appointment of guardians who virtually take control of the comings and goings of a person. There is considerable encroachment on their liberty. I believe it is really regarded as an alternative to better community care, and as such has not really succeeded. There is an element of the whole ideology of compulsion which is repugnant to many people. The view is not that guardianship should be dropped and nothing else done. This worries certain people, such as elderly people with children who have some mental illness. They want a measure of reassurance about what will happen to their children when they are no longer around. Some are comforted by guardianship, but that is only a second best. They cannot be terribly reassured by that.
What we want is a much more specific type of community care which would give real reassurance in these cases. The same applies in respect of the Scottish Association for Mental Health. They are not aware of guardianship being used in respect of mental illness and would rather see it dropped from the Bill. I am not going that far, but this amendment gives the Government an opportunity to answer some of the points which have been made. Let the Government not think that I am out to destroy the Bill; they have almost done that themselves by its incomprehensibility. The reason is the nature of the Bill. This is a probing amendment and I hope that there will be a reasonable answer to the probing. I beg to move.
The Earl of Mansfield: Subsection (1) of Section 4
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requires the Mental Welfare Commission generally to exercise protective functions in respect of mentally disordered persons, and provides that, where such persons are liable to be detained in hospital or are subject to guardianship, the commission's functions include the discharge of such persons. Removing the reference to guardianship from this provision would mean that the commission would have no general duty to exercise protective functions in respect of persons under guardianship. The duty to discharge persons from guardianship in appropriate cases would also be removed, but this would not matter because the reference to discharge in Section 4 is just a forward reference to the specific duty to discharge contained in Section 43.
Subsection (2)(b) requires the commission to visit persons who are subject to detention in hospital or guardianship, and there may seem to be some merit in removing the reference to guardianship from this provision. Persons under guardianship will be subject to far less restriction of their freedom than persons detained in hospital. However, the duty to visit means that the commission must not only be accessible to such persons but must also take periodic steps to maintain direct contact. This ensures that the commission will have first hand knowledge of each patient.
Taking the two references separately, removal of the first would exclude patients under guardianship from the general protective functions of the Mental Welfare Commission, and I can see no good reason for doing this. Although a patient subject to guardianship will not be subject to the same degree of restriction as one detained in hospital, he will, because of his mental disorder, be subject to some interference with his personal liberty. As such, it is right that such a person should come within the ambit of the Mental Welfare Commission—and we are talking about extending the functions of the commission.
So far as the second part of it is concerned, I would have thought it better, and indeed for the benefit of the patient, that the commission should continue to have a duty to maintain direct contact at intervals and to have first-hand knowledge of the patient's circumstances. So I do not think that in this case the civil liberty argument really applies very much.
I have to say that guardianship is not very much used at present. It no longer has the place in the care of mentally handicapped persons which it once occupied and is not regarded as having much relevance for the mentally ill. The noble Lord, Lord Taylor, will know that there is a considerable division between some of the voluntary bodies as to the uses of guardianship in relation to the mentally ill, and more especially the mentally handicapped. For instance, the Scottish Association for Mental Health takes a diametrically opposite view from the National Schizophrenia Fellowship.
Lord Ross of Marnock: I explained that I was concerned about the implications of this not really in respect of the Mental Welfare Commission, but I think that if there has to be guardianship the functions of the Mental Welfare Commission should comprehend those functions covered by guardianship. What I was trying to get from the Government was an opinion about the merits and value of guardianship at all in the present day. That the noble Earl said it was very little

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used is in itself is a condemnation of carrying it on. I appreciate that to get the fundamental argument I should have referred back to some other Act. If we get through the next fortnight, toasting the haggis, and all the rest of it, I will have a look and find that other Act so that we can get down to the argument. In view of what the Minister has said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Duty of Mental Welfare Commission to visit patients]:
5.32 p.m.
Lord Lyell Lord Lyell moved Amendment No. 16:
Page 2, line 13, leave out ("subsection (2)(b) of").
The noble Lord said: With your Lordships' permission, I should like to speak to Amendments Nos. 16, 17 and 18 together. I may refer to other amendments which are also bound up with these amendments; I may make passing reference to Amendments Nos. 19 and 23. I hope that will not draw in the noble Lord, Lord Taylor, nor indeed the noble Lord, Lord Ross, if they would not wish to come to those at this stage, but I hope they will forgive me touching on the fringes of those two amendments.
Amendments Nos. 16, 17 and 18, which are bound up in one way or another with Amendment No. 15, as well as the fringe aspects of Nos. 19 and 23, seem to be rather a complex set of factors. I hope the purpose of the Government's amendments will be plain enough to your Lordships and, above all, to the two experts who have been speaking this afternoon, Lord Taylor and Lord Ross. I would hope that these three amendments will be acceptable to your Lordships and to the two noble Lords, whose objectives we hope they meet.
The three amendments, and indeed the replacement of Clause 3, seek to do two things. The first objective of these amendments is to combine in one clause all the amendments which relate to the duties of the Mental Welfare Commission. These are set out in subsections (1) to (6) of Section 4 of the principal Act. Thus we will find that the provisions of Clauses 2 and 3 of the Bill before us will be combined with two new provisions. The second objective, and indeed the purpose of the two new provisions, is to reflect the Government's acceptance in principle of certain aspects of Amendment No. 15 and of those we shall be considering, Nos. 19 and 23. I mentioned earlier the way in which the new subsection (6) in Amendment No. 18 will meet the aims of part of Amendment No. 15, which was spoken to earlier by Lord Taylor.
If I may draw your Lordships' attention to the new subsection (6A), this will impose on the Mental Welfare Commission a duty to publish a report on their activities every two years, beginning in the year 1985. This differs from Amendments Nos. 19 and 23 in that our amendment sets a date for the first report and it requires two-yearly reports rather than annual reports. I think it would be sensible to allow the commission time to adjust to the many changes which will be made by this Bill before requiring them to publish their first report under this provision. Also, we would do well to consider that for so small a body as the commission a requirement to publish an annual
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report would be unduly onerous and would divert a disproportionate amount of energy from their primary functions. The commission have of their own accord published reports at intervals of approximately five years. The Government accept that more frequent reports would be desirable. I hope your Lordships would accept that a report every two years would be a reasonable compromise. With that, I beg to move the amendments.
Lord Ross of Marnock: This amendment, instead of giving us annual report, as I understand it gives us a report every two years. I am not entirely satisfied that this is right. Most bodies report annually. If it is a matter of giving time to the commission to get into the way of the amended Act, as it will be, they are not going to start until 1985, and that is pretty generous to them. But then, every second year thereafter I cannot accept; I do not think that is right. We are coming to the further amendment to be considered. If we pass this amendment, that kills the debate on an annual report. If we decide it is going to be a report every two years, we cannot then discuss whether it should be an annual report. So we have to discuss this now.
I see no justification for accepting this idea. I have no objection to the rest of Amendment No. 18; I am sorry that the Minister did not speak about it. What is the real change in subsections (6A) and (6B)? I think that is worth talking about, because there was nothing like this in the original Act. The only thing in the original Act, so far as I recollect, is that it was the duty of the commission to advise the Secretary of State on any matter under the Act that he may refer to them, and to bring to his attention any other matter of which, in the opinion of the commission, he ought to be apprised. Here we have a reference to the Mental Welfare Commission with respect to matters referred to them, not just by the Secretary of State but by the health board and the local authority. This is a considerable advance. I am surprised that the Minister did not shout it from the housetops because a lot of people will be very pleased to see it. We read:
"to bring to the attention of the Secretary of State, a Health Board, a local authority or any other body any matter concerning the welfare of any persons who are suffering from mental disorder which the Commission consider ought to be brought to his or their attention."
That is a tremendous advance. However, I did not quite gather that from the speech that the noble Lord made from the Government Bench. This is a breakthrough. It is a breakthrough in that we shall have a report every two years. The Minister will have a record of the reports given by the Mental Welfare Commission for Scotland from 1962 onwards. Those reports have been very spasmodic indeed. This is an advance, but to my mind it is not good enough.
It is a great pity that we could not have broken these matters into two parts. I would not like to vote against the whole clause. Probably the best idea would be to accept it as it is and then to put down an amendment to the Government amendment when we come to the next stage of the Bill. This is an advance. The Government are going the right way. I hope that between now and the next stage of the Bill they will decide whether they can go the whole way towards an annual report rather than a report every two years. I do not think that

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there is an argument in favour of a report every two years.
Lord Taylor of Gryfe: I support the noble Lord, Lord Ross of Marnock, because Amendment No. 19 in my name requires an annual report. If we pass the Government amendment now I am not sure what happens to Amendment No. 19 in which an annual report is called for. Like the noble Lord, Lord Ross, I think the important item in the Government's amendment is not the annual report, though that is important, but the mere fact that the Government have in the amendment responded to some of the suggestions that have been proposed in earlier amendments and to some of the representations that have been made by the Scottish Association for Mental Health and other bodies. It is an indication which we very much welcome.
When it comes to the annual report, I am surprised that the Minister said that preparing an annual report would take up management time. Under the Companies Act companies have to prepare annual reports. Even in Government service and in the commissions over which the Secretary of State for Scotland presides annual reports are called for. I seem to recall regularly producing an annual report on the Forestry Commission for the Minister. It was a good thing because in an annual report one has to assess how one has done in the previous year. It then became the subject of public debate, of press comment and discussion in the Houses of Parliament.
If I may I will give the record of the Mental Welfare Commission to date. In 1972 it published a report on its work from 1962 to 1972—a 10-year period of duty. Then, it published another report in 1971 and a further report in 1981. It is little wonder that the people who should have access to the Mental Welfare Commission are hardly aware of its existence. I suggest that the annual report is useful not only to enable the commission to judge its work for the past 12 months, but to enable Ministers to monitor its work for the past 12 months, and it will enable the public and the press to comment on an annual report. For all these reasons I regard an annual report as a useful thing. It enables the voluntary bodies, too, to check on the activities of the Mental Welfare Commission. Like the noble Lord, Lord Ross of Marnock, I press the Minister to look again at the question of an annual report from his new, powerful, beefed-up commission and let us tell the world a little about what it is doing with its new remit, its new powers. I hope the Minister will respond.
The Deputy Chairman of Committees (Baroness Wootton of Abinger): In view of the wide range covered by the three amendments, and the fact that exception is taken to certain parts of them, the Minister would be well advised to move them separately.
On Question, amendment agreed to.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 17:
Page 2, line 15, after ("Commission)") insert ("—(a) in subsection (2)(b)").
On Question, amendment agreed to.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 18:
Page 2, line 18, at end insert ("; and
(b) for subsection (6) there shall be substituted the following subsections—
" (6) It shall be the duty of the Mental Welfare Commission—

(a) to advise the Secretary' of State, a Health Board or a local authority on any matter arising out of this Act which has been referred to the commission by the Secretary of State, the Health Board, or the local authority, as the case my be; and

(b) to bring to the attention of the Secretary of State, a Health Board, a local authority or any other body any matter concerning the welfare of any persons who are suffering from mental disorder which the Commission consider ought to be brought to his or their attention.

(6A) The Mental Welfare Commission shall in 1985 and in every second year thereafter publish a report on their activities; and copies of each such report shall be submitted by the Commission to the Secretary of State who shall lay copies before Parliament.
(6B) Where, in the course of carrying out any of their functions, the Mental Welfare Commission form the opinion that any patient who is—

(a) liable to be detained in a hospital; and

(b) either a restricted patient within the meaning section 60A of this Act or a person to whom section 60E of this Act applies

should be discharged, it shall be their duty to recommend accordingly to the Secretary of State. ".")
On Question, amendment agreed to.
Clause 2, as amended, agreed to.
Lord Taylor of Gryfe Lord Taylor of Gryfe moved Amendment No. 18A:
After Clause 2, insert the following new clause:
Amendment of s. 4 of principal Act.
(" . Section 4 of the principal Act shall be amended by omitting the words "a medical commissioner or "in subsections (3), (4) and (5).")
The noble Lord said: This amendment is not simply a matter of semantics. It is an important amendment. When the Government appoint the commission, the commissioners are equal in status as commissioners and therfore to differentiate between the medical commissioners and the other commissioners is not desirable. Similarly, in company law, one does not differentiate between the professionals on the board and the non-executive board members. The whole board has a total responsibility just as the commissioners have a total responsibility. Therefore, they should be referred to as "commissioners" without this professional distinction, which I do not think is desirable. The commission will employ its own professional advisers and consultants from outside as the board may require, but it is the responsibility of the board to stand above that as a central organisation which will assess the work being carried out in its name. I beg to move.
The Earl of Mansfield: The noble Lord, Lord Taylor, has taken me slightly by surprise because I am bound to say that I read his amendment, which is now Amendment No. 18A, with Amendment No. 22 and concluded that the object of the exercise, so far as the noble Lord is concerned, was to exclude medical commissioners from the commission; in other words, to have what I might call a lay commission. That is not his desire. I will be perfectly frank with the Committee.

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I am not sure what the implications would be of omitting from the statute the words in Amendment No. 18A. It would seem to me that it might bar the appointment of medical commissioners. If I may, I will take it away and think about it. I am rootedly opposed to any idea that there should not continue to be medical commissioners as there are now, but I do not think the noble Lord is at odds with me about that. I will take it away and consider it.
Lord Taylor of Gryfe: In view of the Minister's assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.50 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 18B:
After Clause 2, insert the following new clause:
("Duty of Mental Welfare Commission to report on local authority arrangements for care of mentally ill persons.
. In subsection (6) of section 4 of the principal Act there shall be added at the end "and the Mental Welfare Commission shall report to the Secretary of State within eighteen months of the passing of the Mental Health (Amendment) (Scotland) Act 1983 on the adequacy or otherwise of the arrangements made under section 7 of this Act for the care of persons who are or have been suffering from mental illness."
The noble Lord said: This is a really important amendment and a very thoughtful one, too. One of the linchpins of the care and protection of the people suffering from mental illness is that local authorities have been empowered, authorised or required to make arrangements under Section 27(1) of the National Health Service (Scotland) Act 1947, which deals purely and simply with the functions of local health authorities in respect of the prevention of illness, care and after-care or mental illness. Nothing could be finer when one reads the 1960 Act. Section 7(1) refers to:
"the provision, equipment and maintenance of residential accommodation, and the care of persons for the time being resident in accommodation so provided:

(b) the appointment of officers …

(d) the provision of any ancillary or supplementary services …

(f) the supervision of persons suffering from mental deficiency"—

although that is to be changed, it will be "mentally handicapped"—
"who are neither liable to detention in a hospital nor subject to guardianship."
We in Scotland decided, way back in 1960, that all these desirable things should apply to mental health. However, I am afraid that when we look at what has been achieved and what arrangements have been made, and whether they are satisfactory or not, the position is very chancy indeed when one part of the country is compared with another. There may be some parts of the country where the attention given and arrangements made are good. Everything started from different levels and some parts of the country probably had a good start. However, is it not about time to make it a duty to find out what these standards are and how good they are? Do we meet the hopes that we had in 1960? Who better to give the task of finding that out than the strengthened Mental Welfare Commission? That is the purpose and reason for the amendment. There is nothing ulterior about it.
Knowing that it would take some time, I have suggested that the commission should report to the Secretary of State within 18 months of the passing of
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the Act. I am prepared to change that, perhaps to two years, if noble Lords think that 18 months is too short a period for the commission to report to the Secretary of State on the adequacy or otherwise of the arrangements made under Section 7, most of which I have already quoted. All those arrangements are desirable and will be helpful. People would be very pleased if they applied, but sadly they do not. The new duty I propose for the commission, is to report on the adequacy or otherwise of the arrangements and to do this within 18 months. I beg to move.
The Earl of Mansfield: As the noble Lord said, the amendment would require the Mental Welfare Commission to conduct what I might describe as a nationwide survey of all local authority accommodation in which mentally ill people might be housed, and to report to the Secretary of State on the adequacy of the arrangements—no doubt not only as regards accommodation but on associated services—possibly before the end of 1984. That would be a Herculean task. The commission do not have the resources to carry out such a survey and even if the necessary professional staff could be devoted to the task it could not be done thoroughly within the timescale which the noble Lord lays down.
It is not reports that we need, but real improvements in services. Reports can point the way in which future efforts can be directed and are useful if attention is paid to them; but a report from the Mental Welfare Commission, as the noble Lord suggests in his amendment, would be in addition to the reports which have been, or are being, prepared by the Scottish Health Service Planning Council on various aspects of services for the mentally disordered. These reports are mainly directed at the health service, but they consistently draw attention to the vital part to be played by local authorities, and they have been, and will be, drawn to the attention of local authorities.
I need hardly say to the Committee that these are difficult times. Local authorities are constantly being urged to give priority to those in greatest need. Deficiencies in services for the mentally ill in the community cannot be remedied as rapidly as we all wish. It is not only unnecessary but it would not help to have a report which identifies such deficiencies. The resources which would have to be devoted to preparing the report would be more usefully employed in making improvements in services. Local authorities are very well aware that improvements need to be made. I have no doubt that, with the resources at their disposal, they do their best to make such improvements as and when they can.
I have a certain sympathy with what the noble Lord proposes, but I do not think that the situation would be helped, and it certainly could not be done by the Mental Welfare Commission in the timescale suggested.
Lord Ross of Marnock: I expected that final comment; that is why I said I was prepared to change the time from 18 months to two years. I would even grant the Minister three years. The Minister said that this would be a Herculean task. We are recreating the Scottish Mental Welfare Commission. We are already giving it new duties, so why not this additional

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important duty? If we mean what we say about services for the care and protection of the mentally ill, we cannot ignore Section 4 of the original Act. When the original Act was passed it was the local health authorities who were involved. Much of their work has passed to the hospital authorities and to the health boards. However, a considerable section of work still remains with the local authorities, and these are mainly the social work departments of the authorities.
Had the Minister been honest with me and said: "Oh well, forget about looking for the deficiencies; we know there are deficiencies. Do not spend money on a report, spend it on the deficiencies and make improvements", I wonder how far that would have got us. The real fact is that most people know what the deficiencies are and they would be glad to report these to the Mental Welfare Commission and have the support of the commission in pressing the Secretary of State to make the improvements. How are the improvements to be made and the deficiencies remedied? The Minister says that the Mental Welfare Commission do not have the money. Who gives them the money? We have been all through this earlier. The commission have no independence and have no money of their own. They have only money they obtain from the Secretary of State with the consent of the Treasury.
When the Minister says that the commission cannot do it, what he really means is that the Treasury will not provide the money. The fact is that many of our services are being cut at present and the deficiencies are being made worse, and this is in respect, probably, of some of the most helpless people in the whole country who need our help.
We take people into a mental hospital. We discharge them. We encourage them to go in for treatment, and they are there only because they can be treated and there is a possibility of a cure. But everyone knows—and the Minister spoke earlier about the Schizophrenia Society, who probably know better than anyone else—that there may be a temporary improvement in a patient's condition but sooner or later that patient will go back in. But, if the after-care, the continuation of local treatment and the watchfulness to ensure that the proper things are done, do not take place, then there will be a return of the patient. It depends on the local community care that is mentioned in Section 7 of the principal Act. Those are the matters that are being cut at present. If we really mean business, then let us give this task to the Mental Welfare Commission, but when they produce their report it will be embarrassing for the Government because it will demand that the Government spend more money on an essential service at a time when the Government want to cut money to that essential service.
It is about time we had a Division. This is an important matter; it is the touchstone of whether we mean business or not. I hope that we shall receive a favourable answer from the Government which is a little better than the one we had from the Minister of State on the last occasion. Is he going to think about it? He knows quite well the trials and tribulations of poor
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Mr. Younger, the Secretary of State, trying to get money out of the Treasury, trying to get it for the steel industry and trying to get it for the railways. We have all been through it and, if he accepts my amendment, then as sure as fate the pressure will again be on the Secretary of State to get money to improve the services for the mentally ill—but they need improving and must be improved.
The Earl of Mansfield: My Lords, I have no desire and certainly no intention of being drawn into a debate on the state of the National Health Service in Scotland or indeed the Secretary's of State's block vote and how he spends it. All I can say is that the ratio which has been maintained for some years is still being maintained and Scotland gets more than its fair share of resources, although I do not trumpet that about too loudly in the presence of the English. If the Secretary of State wanted to do so, he could devote such resources as he wanted in order to enable this body to carry out the survey which the noble Lord wants. But I have tried to explain to him that I think it would be money that would be ill spent. It is very much better, rather than identifying problems which are already obvious to all and not least to the local authorities, to use that money to try to improve the services as and when the local authorities can do so. For that reason I reject the entire contention behind the noble Lord's remarks.
Secondly, the noble Lord does not say how he suggests that this task should be carried out. I have said that it is Herculean, and in my view that is a perfectly reasonable word to describe it. It would require a large number of skilled professional people to carry it out and it would mean that a large amount of money and resources would have to be devoted to the commission for a purpose which it is really not set up to fulfil. Therefore, I am afraid I cannot give any undertaking to the noble Lord. His amendment is misconceived. I have said that I have a certain sympathy for him, and indeed I have, but not for his amendment.
Lord Taylor of Gryfe: I wonder whether the problem could be resolved by the Minister giving an undertaking. He has now accepted that there will be a report at least every second year after the passing of the Act—the commission will report every two years. Perhaps there could be an undertaking that the report of the commission will in fact be an assessment of the adequacy of the services such as the noble Lord, Lord Ross of Marnock, has suggested. It is the duty of the commission to measure how far their remit is being carried out. Would the report of the commission be some kind of assessment in that direction? I am not sure whether the noble Lord, Lord Ross, would accept that as adequate.
The Earl of Mansfield: The noble Lord, Lord Taylor, quite rightly points out that under subsection (6B), which is part of Amendment No. 18, it will be the duty of the Mental Welfare Commission to bring to the attention of the Secretary of State, a health board or a local authority, or any other body for that matter, certain matters which the commission consider ought to be brought to his or their attention. Therefore that gives them discretion as to how they are to advise the Secretary of State or the local authority

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and I should have thought, with respect, that that is probably the best way for the Mental Welfare Commission to go about their task, rather than to insist by statute that they enter this very large, complex and expensive exercise which the noble Lord, Lord Ross, would like introduced under his amendment.
Lord Ross of Marnock: The noble Earl says "large, complex and expensive", and yet we are told by the Minister that they already know the deficiencies. A lot of this is known to the Secretary of State already. It is purely a matter for a little co-operation between the Secretary of State's department and the Mental Welfare Commission, so that the Mental Welfare Commission would be able as regards the deficiencies to highlight the priorities in respect of improving the situation.
The noble Earl referred me to subsection (6B) and virtually said, "Oh well, it is there". He says, "Do not do this Herculean task, but if you want to do it you already have the power to do it". He is saying, "Do not embark on this complex task, but it can be done under subsection (6B). Do not embark on this expensive task, but it can be done under subsection (6B)". If that is how he really feels, how will he stop them doing it? Mind you, I do not believe for a minute that what he said in reply to the noble Lord, Lord Taylor, is true—they could not do it under subsection (6B), but if they can it will be changed, by the next stage of the Bill.
Of course I am not going to divide the Committee, but I want to highlight the fact that the Government put the responsibility on the local authority but they do not make it a statutory duty of the local authority. So long as they do not make it a statutory duty of the local authority we shall find one local authority accepting responsibility and spending desirable monies upon it, and other local authorities saving money. When it comes down to the question of rates we know on whose side this Government are. People will suffer because the desirable arrangements that can be made have not been made.
There is one matter that I have not highlighted in this connection because it is the subject of a separate amendment, and that is the whole question of aftercare. You already have it in England and I shall not be satisfied until we have it in Scotland. We were 20 years ahead of England but by the time the Government have finished with this Bill we shall be some years behind it if this type of answer carries on throughout our discussion of this Bill. I beg leave to withdraw the amendment so that we can proceed to something else which will probably receive an equally unsatisfactory answer.
Amendment, by leave, withdrawn.
6.9 p.m.
Lord Taylor of Gryfe Lord Taylor of Gryfe moved Amendment No. 19:
After Clause 2, insert the following new clause:—
("Annual report of Mental Welfare Commission.
After subsection (6) of section 4 of the principal Act there shall be inserted—
"(6A) The Mental Welfare Commission shall publish annually a report on its activities, and copies of every such report shall be sent by the Mental Welfare Commission to the Secretary of State who shall lay a copy before each House of Parliament.".").
The noble Lord said: I beg to move Amendment No. 19. This case has already been argued. I have looked up the record of the reporting of the Mental Welfare Commission so far, and it has done so three times in 15 years. As I argued when discussing the Government's amendment, in my view it is right that Government commissions should produce an annual report, in the same way as companies do, and that it should be the subject of public debate and comment. That will do good to the Mental Welfare Commission and make them more known and more responsible. I simply recommend to the Minister that he looks again at the question of annual reports as against biannual reports. I beg to move.
The Earl of Mansfield: We have had a good debate on this matter and we have passed Amendment No. 18 into the Bill. I am, of course, always sympathetic to anything that the noble Lord, Lord Taylor, suggests that I do, but I cannot give him any undertaking other than to look at it.
Lord Taylor of Gryfe: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 20 had been withdrawn from the Marshalled List.]
Clause 3 [Duty of Mental Welfare Commission to recommend discharge of patient]:
On Question, Whether Clause 3 shall stand part of the Bill?
The Earl of Mansfield: Amendments which have already been passed into the Bill have, in effect, meant that Clause 3 is surplus to requirements, if I may use that phrase. So I shall not be content for it to stand part of the Bill.
Clause 3 disagreed to.
Clause 4 [Power of Mental Welfare Commission to appoint persons to make enquiries or chair committees of commissioners]:
6.11 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 21:
Page 3, line 1, leave out subsection (2).
The noble Lord said: Clause 4 takes us back to Section 4(7) of the principal Act in which, as I recollect, the commission is given the power to appoint a committee of the commission to inquire into some matter that requires its special inquiry—it may be in respect of the treatment of a patient, negligence, or something of that nature.
Now we are going beyond that, saying that within that committee, instead of having a commissioner as the chairman, we could possibly have someone who is not a commissioner. Subsection (2) says that a person appointed under this new subsection who is not a commissioner:
"shall be—

(a) an advocate; or

(b) a solicitor

of not less than live years' standing."
I want to know whether advocates and solicitors of five years' standing are the only people who can chair an inquiry of this nature. I beg to move.
The Earl of Mansfield: We have to go back to Section 4 of the principal Act, as the noble Lord, Lord Ross, quite rightly directed us. It is necessary to distinguish between routine investigation of complaints or incidents and formal inquiries carried out by the Mental Welfare Commission under the provisions which are set out in paragraph 3 of Schedule 2. These provisions are to be more conveniently relocated after Section 4 of the principal Act as a new Section 4A.
It is in the conduct of formal inquiries having much of the character of court proceedings that the commission may find themselves in difficulties. Therefore, the purpose of Clause 4 is to enable the commission to call upon the services of a legally qualified person to conduct such an inquiry, if the legally qualified members of the commission are not themselves available to do so.
There is nothing to prevent the commission from asking other people to pursue informal inquiries on their behalf in the course of an investigation of a complaint or an incident; but it is desirable that this should only be a matter of convenience, not of necessity. The commission should employ sufficient staff to carry out their investigations without having to rely over much on outside help.
The provisions of Clause 4(2), therefore, are designed simply to express the intention that the person appointed to conduct a formal inquiry should be legally qualified. There is nothing sinister about this; it is merely to add a greater flexibility to the way in which the commission carry out their duties.
Lord Ross of Marnock: It is the way in which the Government tell them they will carry out their duties to which I object. Trust a lawyer to come along here with special pleading for lawyers! I have always been suspicious of lawyers. It was interesting that, when the Government set up a commission on legal aid and matters relating to the legal profession, it was not a lawyer, an advocate or a solicitor of "no less than five years' standing" who was made the chairman of that commission; I think it was my noble friend Lord Hughes, who, so far as I know, is no lawyer, but who is a capable man.
I object to this assumption that an inquiry of this nature must necessarily be something related to a court of law. I know some lay magistrates who are a darned sight better than many sheriffs or, indeed, many judges. I see another lawyer frowning at me; I see that I am on dangerous ground so far as the noble Earl, Lord Selkirk, is concerned, too. I am not satisfied that this is something we require. If this was not the assumption, it would not rule out the advocate or the solicitor.
In fact, we have already been told that there are to be two—are there not?—on the commission, and if they are available they would usually take up this task. We have to extend the commission; there is not even a maximum. We might have a whole retinue of
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advocates and solicitors of not less than five years' standing there, but when we come to this, do we need specifically to say that the person appointed "shall" be an advocate or a solicitor? There may be someone eminently suitable for this purpose who is not an advocate or a solicitor, but who will now be debarred by statute from being used, even though it might well be the best appointment that could be made. It is this restriction to which I object; hence, I suggest this amendment.
The Earl of Mansfield: I want to direct the noble Lord, Lord Ross, to what it is that he is complaining about in Schedule 2. If I may be a touch vulgar for a moment, this is not some sort of underhand way of squirting just a little bit more gravy at the legal profession. This is in respect of one part of the commission's activities when they are, in fact, instituting formal inquiries. The proceedings in a formal inquiry by the commission have the privilege of a court of law, for instance, and in many ways the proceedings have the character of court proceedings. Therefore, if the commission are not in a position to call upon the services of a legally qualified person to conduct the proceedings, they may well find themselves in difficulties and not be able to carry out the formal inquiry which they intend to, and which they have to in certain circumstances.
Therefore, as I have said, the purpose here is to give the commission a little bit more flexibility. In other words, they can hire the services of a lawyer if their own legally qualified commissioners are otherwise engaged or are unable to act. It is no more sinister than that, and I hope, with that explanation, that the noble Lord will realise that it is a comparatively small provision to correct what could be a complicated defect in the way in which the board carries out its duties if it comes to a formal inquiry.
Lord Ross of Marnock: The Minister of State has referred more than once to the "formal inquiry", relating it to a court of law and the rest of it. Can he tell me where in the statute it says this?
The Earl of Mansfield: I have referred the noble Lord to paragraph 3 of Schedule 2, which sets out these inquiries.
Lord Ross of Marnock: Which Act—the principal Act?
The Earl of Mansfield: If the noble Lord would care to withdraw his amendment, then he can peruse all this while we get on with the next one. It is in Schedule 2 to this Bill.
Lord Ross of Marnock: I asked a simple question—which Act or which Bill? I am sure that we could get on very much better if the Minister of State would just control himself and keep a little calm. He will get his meal in about 40 minutes. We have plenty of time. So far as getting on to the next amendment is concerned, I hope when we do consideration will be given to the points made with a little less bad temper than on this specific occasion.
The point I made is still worth making. There are

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people who can conduct these inquiries. The person conducting them can have legal advisers. No doubt the first thing he will do is appoint himself a legal adviser. There will be a fairly generous helping of gravy for the legal profession. I daresay that this is to make up for the disadvantages that are going to arise from the next Bill that the Government produce, when they are to take away from some of the Edinburgh advocates the ability to conduct divorce cases in the sheriff courts, which will make things much simpler there, but about which the lawyers are presently screaming. We shall hear about that Bill in due time.
I can assure the noble Earl that I am not satisfied. I am not going to press my amendment at this time. Far be it from me to embarrass him with a defeat of the Government on something as important as this. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to,
Clause 5 [Appointment etc. of staff by Mental Welfare Commission]:
6.22 p.m.
Lord Taylor of Gryfe Lord Taylor of Gryfe moved Amendment No. 22:
Page 3, line 31, at end insert—
(" (2) The Mental Welfare Commission shall appoint medically qualified staff to undertake the duties of the commission, and these shall not be the medically qualified "Medical Commissioners.")
.The noble Lord said: As in the case of so many amendments to this amending Bill, we have already touched on some of the matters raised by this amendment. The Minister has assured me that he is going to have another look at this question since he misunderstood the purpose of an earlier amendment in this connection. These amendments are to ensure that the Mental Welfare Commissioners sit largely as a voluntary body, but they are not appointed as consultant psychiatrists to the commission. None of the members of the commission sit as medical people or consultant psychiatrists, but as commissioners.
So far as I am concerned I am happy for three of the commissioners to have medical qualifications, but not that they should act as psychiatrists in the exercise of the commission's business. There must be a clear distinction between the commission's responsibility as a board, which is equal among the members, and their employment of people in order to discharge their functions. Consultant psychiatrists can be employed as staff of the commission, but we must not confuse the responsibilities of the commissioners with the discharge of their duties as consultant psychiatrists.
The commissioners must remain objective in judgment of all of the matters that are referred to them. Therefore, they are arbitrators, and it is wrong to confuse the medical commissioners who could act as consultant psychiatrists to the commission and the employment of staff so to do. There is an important distinction here. The medical commissioners—that is the three men who have medical experience—sit there as commissioners, and do not sit there as staff discharging the duties of the commission. That is an important distinction. The commission must be objective, and must be the arbitrators. The Minister
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assured me in the debate on the previous amendment that he was going to look at this matter, and I hope that he will be equally generous with this particular amendment. I beg to move.
The Earl of Mansfield: As I understand it, what the noble Lord is seeking to ensure is that the medically qualified commissioners of the Mental Welfare Commission shall not in fact sit other than in judgment over the efforts of other people. That, I think, is something for which I do not have a great deal of sympathy. Historically, the medical commissioners have visited patients and examined them. They have inspected medical records. Indeed, in many cases the work of the commission, I will not say would be affected fatally but would be considerably hindered unless the person undertaking the particular task in relation to whatever it is that the commission are doing is not only medically qualified but is a member of the commission.
It would be perfectly open to the commission to employ medically qualified staff, and indeed they do. They employ a variety of professional persons, sometimes for a period and sometimes on a part-time basis in relation to certain of their functions. I do not suppose that the noble Lord would want to exclude them from that. What he seeks to do is to see to it that the medical commissioners do not undertake the sort of work I have illustrated.
I do not think that the noble Lord has really given any very good reasons as to why the medical commissioners should be prevented from undertaking the tasks they have carried out previously. I know that there is a certain amount of internecine warfare among different branches of the medical profession about this, and I have the feeling that what the noble Lord suggests has perhaps been suggested by one or other of the branches. Unless the noble Lord can think of some more cogent reasons why in fact the medical commissioners should be debarred from acting as medical men as opposed merely to sitting as arbitrators, I cannot recommend that the Committee accept this amendment.
Lord Taylor of Gryfe: I am sorry I have been unable to convince the Minister about the wisdom of this amendment. It goes to the root of what we visualise as being the responsibility of the Mental Welfare Commission. I see that body as a body of equals, sitting there as a board sits, with certain responsibilities. But what you are creating is a board of 10 or 11 people with a few laymen on the board and some lawyers, there may even be someone from the voluntary organisations, and then you are to have three medical people. This is not a professional board. This is largely a voluntary board to which people give their services. These are matters of complaint where someone has taken the initiative in complaining about wrongful detention. They are matters concerning the duties and responsibilities of the hospital when caring, in which you have to have objective judgment; and to employ three members of the board to conduct that inquiry is not sound.
It is perfectly sound, of course, for the commission to employ consultant psychiatrists and medical people to give them advice, but it is wrong for the people who are in judgment of the matters to be professionally

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involved in doing that. This is an important amendment which goes to the heart of how you see this commission. It is not like the old commission; it is a new commission with new responsibilities, and I suggest that we should make that break now.
The Earl of Mansfield: The medical commissioners act as what I might call the executive directors of the commission; that is a convenient shorthand way of describing their role. It would of course be possible for them not to do that—in other words, for professional people to be employed to carry out the work they presently do in this field—but what the noble Lord has not produced are any arguments as to whether the system is wrong and, if so, why it is wrong.
A great many points have been raised as a result of the consultation document and a number of criticisms have been made about the work of the commission in other contexts, but nobody has suggested what the noble Lord is suggesting and, so far as I know, there has not been any complaint that by reason of their executive character, so to speak, the medical commissioners are in any way acting unfairly or in some way to the prejudice of the patient, or are doing something that should be stopped. That is what I find difficult about the noble Lord's argument; we have not had any complaints, and he does not produce any instances or cogent arguments as to why they should be stopped from acting in the future as executive directors.
However, I am prepared, if it would help him, to ask my officials if there have been any complaints, although I understand that in fact there have not. I am prepared to investigate the situation, but I must tell the noble Lord that I have no evidence before me at present—and, of course, once the amendments were tabled we pursued the necessary inquiries—to suggest that anything is wrong with the system.
Lord Taylor of Gryfe: It is difficult, of course, to make complaints against the commission. I am happy that the Minister is prepared to look at the matter again, because it impinges on a point made by the noble Lord, Lord Ross—the question of fees and duties—and I presume that the medical members of the commission, as well as being a distinct category on the commission (which I do not think they should be; they should all be equal on the commission), when discharging their responsibilities as medical members then collect their professional fees from the commission. I do not quibble about that.
Nevertheless, this is an important point of dividing the commission between fee-collecting members and other, voluntary members; and I should like the Minister to look at the functions of the commission as arbiters in judging matters that are referred, and whether the commission's judgment is impaired by the fact that one of their number conducts the inquiry. It would seem that it would be very difficult for the commission to reject anything that was done by one of their number. If, on the other hand, they employed, say, a consultant psychiatrist, they would be in a much more objective situation in judging the rightness or wrongness of the matter referred to them.
This is a fundamental point, and while I am not convinced by the Minister's reply I should be happy if he would look at the system as it now operates.
The Earl of Mansfield: I give that undertaking, but I could not give any commitment other than that.
Lord Taylor of Gryfe: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.34 p.m.
On Question, Whether Clause 5 shall stand part of the Bill?
Lord Ross of Marnock: I should like to know, before we allow the clause to stand part of the Bill, what sort of improvement, if any, it is on the original Act. I will not hark back to the arguments we had on Clause 1 in relation to the new subsection (7B). We have already decided that the Secretary of State may provide for the commission,
"such officers and servants and such accommodation as the Commission may require".
It is the Secretary of State who will provide all that, but under Clause 5 we see that the Mental Welfare Commission will be able to appoint officers and servants and fix their remuneration, and so on, including pensions and the rest. Then we return once again to the everlasting and ever-with-us Secretary of State and the Treasury: so long as they determine it, the commission can do it.
I should like to know what point there is in having the two things, and why they must be so separated—and this is relevant to the debate we just had about whether the Secretary of State appoints medical commissioners who then, as commissioners, employ themselves. This is a very serious matter. We have already been told that two of the medical commissioners are full-time. So here are two full-time people employing themselves. Do they get further remuneration, emoluments or allowances for the number of people they examine and the various visits they make, bearing in mind that they will be making more visits? The visits are to be at least once every three years.
I question the changes that are being made. A great illusion is being created about the independence of the commission. Would it not be a good idea, from the point of view of us all, for the Government to tell us what the Mental Welfare Commission of Scotland are now? Where do they meet, for example? I would hazard the guess that it might even be at the Scottish Office. How many people do they employ? Is the answer none because they are all employed by the Scottish Office, they are all civil servants? We would have the matter in better perspective if we were told the exact position of the commission today. Once we get the full picture, we should begin to understand why they do not report all that often.
While I am not necessarily against all that is proposed, there are so many bits and pieces of the old Act left, now being amended by something absolutely new, that it does not always make sense. That is why I want the Government to justify Clause 5. After all, it will be exactly the same as it was; the Secretary' of State and the Treasury were in the original Act and appear in this clause. However, we are told that somehow or other there will be some great change coming over the

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commission; they will be able to appoint their officers and servants and make provision for the payment of this, that and the other, but only if the Secretary of State agrees. That is already said, without the proposed change, so I want the Government to justify burdening us with the clause and pretending it is something new.
The Earl of Mansfield: We have been round this course before. As the Committee knows—and as the noble Lord, Lord Ross, certainly knows—at present the Mental Welfare Commission borrow staff (civil servants, if you like) from the Secretary of State to carry out their role. There are a number of disadvantages in that. For example, it can be suggested, and has been, that because of it the commission are not as independent as they should be, though they are carrying out a very independent role. It also means that the staff have first to become civil servants before they can work for the commission. It was therefore decided that the commission should, as it were, stand to one side from the Scottish Office and be given the power to employ their own staff, and to enable them to do that we have these perfectly routine provisions. Clause 5 in effect applies ordinary enabling powers to the commission so that they may employ people and pay them.
As the noble Lord, Lord Ross, has said, at the end it is subject to the Secretary of State because the payment for all this has to come out of his block and, like everything else in this country, there is in the background the eminence, although it may not necessarily be very grise, in the form of the Treasury. It really is not very suspicious. I beseech the noble Lord, Lord Ross, to accept that this is merely a way of ensuring a further degree of independence on the part of the Mental Welfare Commission and to give them the power, which they have not got at the moment, to employ their own staff. If Clause 5 is not written into the Bill then the Mental Welfare Commission will not be in a position to employ staff as is intended and as (I think it will be seen from what I have said) is manifestly desirable.
Lord Ross of Mamock: I still think it is an illusion of independence. The answer has not been given as to where they meet at the present time and where all this mass of staff is going to be accommodated in future. Could I have the answer to that before I agree with the rest of the Committee that the clause should stand part? Where do the Commission meet just now? Where do all these officers and servants—a lovely phrase, "officers and servants"—which the Secretary of State has been providing for them since 1962, since the 1960 Act was passed, all meet and congregate at the moment? Where is their accommodation at the present time, and where is it going to be in the future?
The Earl of Mansfield: I gather that they meet in 22, Melville Street, in Edinburgh. Whether they will thank me for giving their address to the noble Lord, Lord Ross, I do not know.
Lord Ross of Marnock: And who owns 22, Melville Street? This is what I want to know. Who is paying the rent for them at the present time?
The Earl of Mansfield: Probably the Secretary of State for Scotland, as they are a creature of the Secretary of State. They owe their existence and their continued existence to the Secretary of State. It comes from his block. I thought I had said that four, five or six times this evening.
Lord Ross of Marnock: The Minister has said that they have a new independence, that they can employ their own staff. They are still a creature of the Secretary of State, and the Secretary of State is still a creature of the Treasury. Every time it is mentioned the words are there, that "The Secretary of State may with the consent of the Treasury…". There is absolutely no change. And I wager that they will still meet in 22, Melville Street—and we will have spent all this time examining this complex, with all the help and the legal skill of the Minister of State. Eventually we have got to know what they are doing. They are making no change at all except in words—and, oh!, they are going to get pensions now, and emoluments. We are just going to spend more money. As soon as the Prime Minister discovers that, then I know who the next Governor of the Falklands will be.
Clause 5 agreed to.
Lord Ross of Marnock Lord Ross of Marnock had given notice of his intention to move Amendment No. 23:
After Clause 5 insert the following new clause:
("Annual Report.
. It shall be the duty of the Mental Welfare Commission to report annually to the Secretary of State who shall lay it before Parliament.")
The noble Lord said: We have had this debate twice. I am prepared to move the amendment, but I think it is far better that we leave it now. The decision has been taken that we have a report not annually but every' two years. I think we will leave it there and not move this amendment.
[Amendment No. 23 not moved.]
The Deputy Chairman of Committees (Lord Wells-Pestell): I have to inform the Committee that, if Amendment No. 24 is agreed, I cannot call Amendment No. 25.
Clause 6 [Definition of "mental disorder"]:
6.45 p.m.
Lord Taylor of Gryfe Lord Taylor of Gryfe moved Amendment No. 24:
Page 3, line 33, leave out subsection (1).
The noble Lord said: The purpose of the amendment, at least—and I can be guided, I hope, in the draftsmanship if this wording does not attain its objective—is to make a distinction between "mental illness" and "mental handicap". There is that confusion in the Bill. It is quite inappropriate that mental illness should be mixed up with the problems of mental handicap. Mental handicap is a permanent disability and requires specialist help of a quite different kind from mental illness, which is treatable and, in many cases, thankfully, transient. There is confusion over the two kinds of problem and it would be sensible if a separate Act were to concern itself with mental handicap. I know that this would mean new legislation. Nevertheless, I think it is very important to

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make that distinction when we are dealing with this matter. I beg to move.
The Earl of Selkirk: As my name is added to that of the noble Lord, Lord Taylor, on this amendment, perhaps I may add a word here. I gather that this change of the expression "mental deficiency" to "mental handicap" is possible. I would not disagree that in many ways the expression "mental handicap" is perhaps a more attractive one than "mental deficiency". It was pointed out several times in the Second Reading debate how important it is to distinguish between retarded development or delayed development and what is, properly speaking, mental disorder. I am bound to say that I think that changing the name at this stage may add a certain amount of confusion—confusion which, frankly, already exists.
The difference between these sorts of institution is not all that well understood by many people in the country. I believe that this was the opinion of the Scottish Office when the Green Paper was brought out in, I think, April. They said that mental deficiency has a long history of legal usage, and is well understood by the courts and all those concerned with forensic psychiatry. A change in legal terms would achieve no great clarity and would lead to some confusion.
I think that that is perfectly true. I do not think that we should make the change unless we are quite sure that it is a wise one. The trouble with the expression "mental handicap" is that it has no clear element of definition. If we are honest with ourselves, then probably everyone of us has some kind of mental handicap. I can tell you that, among other things, my memory has greatly decreased as the years have gone by. What is implied by "mental handicap" can perfectly well be implied by "mental disorder" just as well as by "mental defect" and it leaves the thing quite open. I must admit that I belong to the school that believes that a rose by any other name would smell as sweet. I cannot think that it is good enough to change a well-known phrase just because it sounds better. There may be better reasons than that but I think we should not change it unless there are better reasons.
I know that it will probably be said that the expression is used in England; but this is an expression which is of concern to people in Scotland and what is said in England does not really make a great deal of difference. I should add that there are a large number of expressions in this Bill besides mental handicap. There are "mental illness", "mental impairment", "severe mental impairment", "mental disorder" and "defective". Do we really want to muddle it further by having an additional one? There may be a very good reason for doing so; but I really have considerable doubts as to whether we should be wise to make this change just because the phrase sounds better.
Baroness Masham of Ilton: Perhaps I could say that the words "mentally handicapped" were taken out of the English Bill. It is a pity that the noble Lord, Lord Renton, is not here. He would have been able to explain very fully the difference between the expressions "mentally handicapped" and "mentally ill". It seems to me, being a Scot, a pity that Scotland might be lagging behind England in this matter.
Lord Ross of Marnock: I am right in thinking that if this amendment were carried the words "mental defective" would remain in the statute. That is the sole effect of the amendment. Frankly, I was faced with the same problem as to how to raise this particular point. I came to it with a different solution, one which I am sure the noble Baroness, Lady Masham, will support if she looks at the next amendment, No. 25. We make the change and refer to "mental handicap".
The noble Earl may have heard lawyers talk about "mental deficiency" and "mental defective". I think it is derogatory. Has he heard children talk about people being "MD", and all that that means? This is a desirable change, and it is true to say that when it was first suggested the Scottish Office said that it would cause too much confusion, but then they changed their minds. The feeling is very strong about it. When it comes to ordinary people who suffer or whose family are embarrassed by a particular phrase being attached to them, I am in their favour rather than that of the lawyers who are going to be a little incommoded by the change in language.
My amendment puts "mental handicap" in the Bill as the Government wish, but it inserts:
"and on a date determined by the Secretary' of State by order all reference to persons suffering from mental handicap shall be omitted from the Act."
I do not want to belabour the point at the present time. I want to warn my noble friend that I do not think this amendment to retain the terms "mental deficiency" and "mental defective" will be welcome.
The Earl of Mansfield: There are two amendments and really two questions in the way that this debate has proceeded. Amendment No. 24 is simply a matter of language. If it were accepted, then the expression "mental deficiency" would remain in use as opposed to it being replaced by "mental handicap". I take into account the views of the Committee about this, obviously; but I agree with the noble Lord, Lord Ross, that there has been considerable pressure to replace the term which is regarded in some circles as being derogatory. It is something which I can very well understand. If we were now to replace "mental handicap" by the old term of "mental deficiency" there would be a good deal of disappointment. But, as I say, I am very much in the hands of the Committee. If there was a consensus of opinion that the term "mental handicap" was unsatisfactory or undesirable, I would at once undertake to take the matter away and have more consultations. I should not like to accept Amendment No. 24 tonight.
Amendment No. 25 is in the name of the noble Lord, Lord Ross, and he has more or less spoken to it now. It is quite different in its effect. What it does is to say that the mentally handcapped shall be legislated for in a totally different way and in a totally different Bill from the mentally ill. That is quite a different matter. I have a certain sympathy with the view that if this was a perfect world it would be very nice if we could legislate totally outside a Bill such as this for what I prefer to call the mentally handicapped.
I have to say that the principal Act, which is the 1960 Act, was recognised as a great improvement on earlier legislation. It brought together a tangled web of

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enactments, most of which were out of date, and it dealt separately with those previously referred to I think as "lunatics" and "mental defectives". This process did not just happen; it took a long time. If we were to consider accepting Amendment No. 25, I think that we would have to give very considerable care and attention to disentangling legislation so as to achieve an even measure of separation. I am not saying that it would not be worth the effort necessary, but it would certainly require a great deal of thought. It would also require parliamentary time, which is not available.
Fundamental changes are taking place in the way in which mentally handicapped people are treated in our society. Naturally enough, with strained resources, many people say that changes are not taking place anywhere near fast enough. But there is a steadily increasing momentum in the move away from the large medically-orientated institutions which have come to us from the past. The pattern of care is still evolving, and I think that it would be premature in the midst of this process of evolution to start now to think of new legislation without having given fairly careful thought to the circumstances to which it is likely to apply.
I suppose, if we were to put our minds and the necessary resources to it, we would achieve two separate Acts which would be, if not identical, pretty similar in many respects. I am not sure that to go through that motion is something which appeals to me. Whether it would benefit the mentally handicapped is extremely doubtful, although I have no doubt that it would please those who care for them and are in many cases related to them. May I leave the Committee with this thought: the provisions in Clauses 6 and 8, and other parts of the Bill, make it clear that although the protective functions of the Mental Welfare Commission and various other provisions apply equally to the mentally handicapped or mentally ill, the provisions which relate to compulsory admission and detention in hospitals affect only a small proportion of the mentally handicapped.
If one goes to the original memorandum which was circulated to all Members of the other place and also to noble Lords who are interested, there were at the time when the suggestions were drawn up, I think in 1979, some mentally handicapped people, although very few, who were required to be detained in their own interests or for the safety of others, for no other reason than the behaviour which resulted from their mental handicap. That being so, the provisions of the Bill relating to compulsory detention in hospital or to guardianship are as relevant to the small minority of mentally handicapped people in question as they are to the much greater number of mentally ill people who require to be detained. Speaking purely from memory, I think the figure is 99; just under a hundred people.
The question of separate legislation, if one looks at it in this way, is much less attractive and much less justified than one might think at first blush. For those reasons, so far as Amendment No. 24 is concerned, I am very happy to take it away and look at it, if required by the feeling of the Committee. I hope that when it comes to the point the noble Lord, Lord Ross, will not feel it necessary to move Amendment No. 25.
Baroness Masham of Ilton: Just before the noble Lord decides what he wishes to do—
Lord Ross of Marnock: Might I inform your Lordships that I have not even moved my amendment yet.
Baroness Masham of Ilton: May I just ask the noble Earl whether he does not think it important, with the movement between England and Scotland of people, in whatever category they are, that they should be called the same thing? People do move with their families, with mentally handicapped children or with mentally ill people, from one country to the other. After all, this is supposed to be "Great Britain", and many complications may arise if, on one side of the Border, they are called "mentally handicapped" and, on the other side, they are called whatever that out-of-date word was. I cannot remember it.
The Earl of Mansfield: The term was "mentally deficient". May I try to help the noble Baroness by saying that it is an argument, though I do not believe it is a very strong one, and I do not see why we in Scotland should follow the English if, so to speak, our own people are urging us not to do so.
Lord Taylor of Gryfe: If it will help to progress the business of the Committee, in view of the fact that the Minister apparently accepts Amendment No. 24 because it is less complicated and would entail less legislation than Amendment No. 25, I am not sure, if I may say so to the noble Baroness, Lady Masham, that there is a unanimous view in the organisations that we are dealing with in England that the English terminology is better than that produced elsewhere. I would simply beg leave to withdraw my amendment, on the assurance of the Minister that he accepts it in principle, and will look at this matter further.
The Earl of Selkirk: Before the noble Lord sits down, may I say that I really do not feel strongly about this at all, but, if I may say so with great respect to the noble Lord, Lord Ross, "MD" will change to "MH" and it will make no difference whatever. I have considerable doubt as to whether it is worth legislating for something which will have no effect, if we all know a dozen words which are used commonly in place of either, and those terms will continue to be used. I feel that this will have no effect whatsoever and therefore I doubt whether it is worth putting into the Bill. That is my argument.
Lord Ross of Marnock: Was the noble Lord, Lord Taylor, right when he assumed that the Minister of State accepted the principle of his amendment? I did not get that impression. I am supporting the Minister in the amendment he has down. I entirely disapprove of what has been said by the noble Earl, Lord Selkirk. I have talked to some of these people, and in fact have found that this is the term which patients themselves and the parents prefer to use about their children—that they are mentally handicapped and not mentally defective. Whether he, as a lawyer, likes it or not, I, as an ordinary person moving among people, am telling him that they feel it very strongly and they put it very strongly to the Scottish Office. The Scottish

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Office did resist it, but the pressure was such that they decided to make the change, and I think they were right to do so. I hope that the Government stand by their position in respect of this amendment.
Baroness Elliot of Harwood: I, too, fully support what has been said by the Minister and by the noble Lord, Lord Ross. The words "mentally defective" have a slur attached to them, and I think that "mentally handicapped" is a much better term to use.
The Earl of Mansfield: Just so that there shall be no mistake—and I do not think there should have been, in view of what I said earlier—I said that I was really in the hands of the Committee and that the Government had prepared this legislation as a result of a lot of pressure, but that if there was pressure from the Committee on me to reconsider what had been done, I would go away and reconsider it. As things stand, however, I have to say to the noble Lord, Lord Taylor, that a lot of people in Scotland are pressing for the change in expression.
Lord Taylor of Gryfe: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Denham: Possibly this would be a convenient moment to break and go on to the next business. In moving that the House do now resume, may I say that we will not come back to this particular business before ten minutes to eight. I beg to move that the House do now resume.
Moved accordingly and, on Question, Motion agreed to.
House resumed.

Plant Varieties Bill [H.L.]
7.5 p.m.
Report received.
Clause 1 [Period for which plant breeders ' rights are exercisable]:
Lord Beaumont of Whitley Lord Beaumont of Whitley moved Amendment No. 1:
Page 1, line 5, at beginning insert—
("( ) In section 2 (conditions for grant of rights) of the Plant Varieties and Seeds Act 1964 (in this Act referred to as "the 1964 Act")—

(a) in subsection (2) the words "or discovered" shall cease to have effect in both places where they occur; and

(b) subsection (4) shall cease to have effect.").

The noble Lord said: My Lords, the more we look at this Bill the more some of us have come to see that there are very grave disadvantages and flaws in it. One of the major flaws is that of the serious problems which are caused by the establishment of breeders' rights in discoveries. In industrial patents, before a patent can be recognised a demand is made for an inventive step, without which the patent is not granted and is not valid. Anything which has the nature of just a fortuitous discovery which is not an inventive step does not get a patent.
If that is so in industrial matters, it seems to me how much more it should be so in the case of plants existing in the wild. There are vital and almost theological issues involved in the establishment of the idea of ownership and the protection of ownership of something which grows wild in many countries. It is this question which I presume to suggest that the Government have not fully plumbed to date and which I hope they will be able to comment on at this particular stage in the proceedings and see whether there is something they can do to improve the Bill.
The amendments which I propose fully grant the right to plant breeders to patent the plants they have produced through their own skill and hard work; but for the life of me I cannot see the case for patenting discoveries in the wild. To this extent I think the 1964 Act was wrong and, so far from extending it in this respect, we should correct it. Nor is it just a question of the basic principle of the matter. The developing countries are deeply concerned, as well they may be, about such developments. The great majority of these plants come from the third world and the steps which are now being taken will have the effect of taking from the third world some of the very few economic advantages they naturally have at this moment.
I am consistently appalled by the "rip-offs" to which these countries ae subject in the name of some kind of western advantage. Sometimes it is clothed, as it has been in the past, I admit, by my party in the beneficient name of free trade. Of course that is only when it suits us; this particular Bill does exactly the opposite. This is a Bill in restraint of trade. As a result, other countries are thinking of restricting trade with us, because there is no doubt that the developing countries feel extremely strongly on this matter.
Already, at the Food and Agriculture Organisation, developing countries have successfully called for that body to draw up a legally binding convention governing the exchange of plant genetic resources, and in this forum scientists and diplomats are speaking bluntly about an embargo upon the transfers of genetic material to countries with legislation of the kind which we are dealing with tonight. This already represents a threat to the long-term interests of plant breeding. Brazil, the Ivory Coast, Malaysia and Madagascar have already placed bans on the export of all, or some, materials.
Since the vast majority of new breeding material has its origin in the centres of genetic diversity, which are all in the third world, this emerging conflict will harm the free exchange of germ plasm throughout the world and could detrimentally affect future plant breeding and agricultural development in Great Britain and other parts of the world. I have a series of quotations here, which I shall not read at the moment, showing the great disturbance that there is in countries such as the Philippines, Ghana, Malaysia and other countries about these steps that are beginning to be taken.
I suggest that this Bill goes a lot too far at this moment, that it would be quite enough for this Bill and quite enough for the purposes for which it was originally brought forward if it confined itself to dealing with the patenting of plants which are truly bred by the efforts and inventiveness of plant breeders, and if it did not include this far wider concept, which

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probably has very little basis in either justice or equity. My Lords, I beg to move.
Lord John-Mackie: My Lords, when the noble Earl, Lord Ferrers, brought this Bill forward on Second Reading he explained very fully what was its purpose. Basically, it was to rationalise the EEC regulations on the number of years for which plant breeders can claim their royalties. The main object of the Bill was to amend the original Act to that extent. But the noble Lord, Lord Beaumont, has widened the Bill very considerably by his amendment. I have been lobbied by various people on the whole Bill, on what it does to developing countries and on the fact that it may be keeping back development of various genes that they have; although the noble Earl gave us an indication of the huge storage of genes that we have in this country.
I have in front of me a book written by Mr. Peter Mooney, who has produced all the arguments, which have a grain of truth here and there, but I think that they are grossly exaggerated. I ask the noble Lord, Lord Beaumont, to think of the tremendous advantage that it has been to this country in having people going abroad and discovering plants which have been brought back here and have been developed and multiplied to the benefit not only of this country, but of the countries from which they came, as well as others. It would be a huge mistake to inhibit people who do that sort of thing and I am certain that it would not help the countries concerned if people with the knowledge and the money to make these discoveries all over the world did not get some advantage from the work that they do. So I do not think that we can support this amendment, which goes a lot wider than the short Bill which we have before us.
7.15 p.m.
Earl Ferrers: My Lords, the noble Lord, Lord Beaumont, put a very persuasive case in moving this amendment. I could not agree with him that this is a Bill which restricts trade. It is, as the noble Lord, Lord John-Mackie, said, a Bill to protect the rights of those who have invested considerably in various forms of plant breeding, for which investment they are perfectly entitled to a return; otherwise, plant breeding will not continue.
I understand the sincere feelings which underlie the amendment of the noble Lord, Lord Beaumont, and his views on the importance of safeguarding the genetic resources of the world. But, after all, these genetic resources are a heritage of all mankind and I do not think the noble Lord was quite right when he referred to the "rip-offs" of other countries which have been carried out for the advantage of the west. It is true that some of the fundamental plant material which is used by breeders in Europe or North America is obtained from other countries, including those in the developing world, but this cannot justifiably be considered theft.
As a rule, great care is taken to ensure that only small samples are taken from an indigenous population of plants, and the national authorities and breeding institutions where they exist are usually involved. Therefore, this Bill does not, as I think the noble Lord said, give the discoverer ownership. Man
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has always transferred crops from one continent to another, and modern man is certainly no exception to that.
But, be that as it may, there is anxiety that genetic resources may be lost and, obviously, that must be prevented. A most effective means of prevention is to continue the establishment of a world network of gene banks, most of which, for the tropical crops, are held in international institutes which are located in third world countries. As I explained to your Lordships during the Committee stage, we in the United Kingdom play a very important role in that. One of the most effective safeguards against such loss is the existence of a progressive plant breeding industry, such as we have in the United Kingdom, which will naturally ensure that stocks of genetic material are properly maintained for the production of improved plant varieties in the future, many of which, as now and in the past, will be used to improve the agricultural productivity and food supply in developing nations.
Having said that, I must ask the House to reject this amendment, which would have the effect of depriving the United Kingdom plant breeding industry—which I would remind the noble Lord, Lord Beaumont, has made an immense contribution to the development of agriculture, not only in this country but in other parts of the world—of genetic material which has been available to it for literally hundreds of years. This would disadvantage our breeders, while allowing breeders in other countries to go ahead quite unfettered. It would rule out the plant breeders' protection not only of the commercially useful plants which are growing in the wild, but also of the genetic variant or "sport" which periodically occurs in the course of commercial or amateur plant cultivation.
It is rare that a wild species would alone be suitable for immediate exploitation. It is much more likely that it would be used as part of a commercial breeding programme, involving considerable cost to the breeder. It is the requirement for this heavy investment which has resulted in the development of indigenous plant species of the third world being undertaken to a very large extent by breeders in the developed nations. Had this not been so, valuable plant resources might have lain unused for many years, or would have been lost forever to the detriment, particularly, of the developing countries.
Where, rarely, a discovery in the wild or a chance mutant does occur, it is surely not unreasonable that the discoverer, who may have expended resources in exploration, who has imagination to spot the potential of a new plant and who is prepared to fund its development and wider distribution at great risk, should have the opportunity through grant of plant variety rights to share in the wealth which his discovery has created. Years before the introduction of plant breeders' rights in the United Kingdom it was the practice to bring into this country flowers, shrubs and trees from other countries. There are many examples. I think immediately of rhododendrons, azaleas, prunus. They are just a few of the obvious ones which had their origins in countries very far distant from ours. Every country with a market for flowers and shrubs does likewise, and I can see nothing wrong in their doing so. I do not see that to deny the genetic

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potential of these species would be of benefit either to the countries concerned or to mankind as a whole.
Lord Beaumont of Whitley: My Lords, the longer I stay in politics the more I should learn not to be amazed at anything, but I still am. I am always particularly amazed at the way in which efforts to gain commercial advantage of one kind or another can be wrapped up in high-sounding language. On this occasion, I am particularly amazed and rather distressed by the attitude taken by the Labour Front Bench. I can only hope that in the other place there will be another look at the matter. I cannot believe that the fine traditions of the Labour Party in dealing with the third world over matters of this kind are going to be treated in quite the way they have been treated tonight.
I do not intend to go over the arguments. I just want to make the point that it is the countries affected who are deeply concerned about this; namely, the countries where the plant germ plasm come from, which can expect in time to benefit most strongly from whatever the development of these plants may be. They are already putting pressure on those countries in the developed world which are behaving in the way that our country is behaving. Bills like this have been withdrawn in several countries as a result of pressure from the third world.
I will quote one of the sources which I refrained from mentioning in my previous speech. Mr. Adansi, the chief research officer of the Oil Palm Research Centre, Ghana, is just one of a number of spokesmen for the developing countries. He is utterly in favour of promoting an international network of genetic resource centres,
"to further collection, conservation, documentation, evaluation and use of plant germ plasm and thereby contribute to raising the standard of living and welfare of people throughout the world".
Those are fine words which we all use. However, Mr. Adansi goes on to say:
"Patent protections can only jeopardise this lofty ideal, especially when breeders obtain gratis the germ plasm they use."
This is the attitude of the developing countries. This is what they feel about what is happening. They are the source, so often, of the plants which we are talking about.
I am deeply disappointed by the Government's reaction, but I do not believe that it is worth pursuing the matter further tonight. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Plant breeders' rights in special cases]:
[Amendment No. 2 not moved.]
7.25 p.m.
Lord Beaumont of Whitley Lord Beaumont of Whitley moved Amendment No. 3:
Page 2, line 21, after ("varieties") insert ("whose commercial value is based exclusively on their decorative qualities").
The noble Lord said: My Lords, this is a slightly different situation. The purpose of the clause and, to a certain extent, of the Bill, is the protection of the cut
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flower growers of the Channel Islands. The Government explained to various people interested in the matter, including international bodies, as late as October 1981 that that was one of the purposes of the Bill. There is a certain amount of sympathy for this aim. If the Bill only did that and did not do it in such a way as to damage other people, we should have no objection to it. Clause 5 covers the Channel Islands. Clause 2 opens the door to all sorts of protection of end products. In some ways one can say that this clause is even more horrifying than Clause 1.
The simple patenting of a plant can be extended by the Minister to the protection of any end product. If, therefore, I find a wild flower in Malawi, bring it to this country and discover that its seed is a useful product of some kind—for instance, a useful drug—I can embargo the sale by anybody else in Great Britain of that drug, even if it is produced easily in the wild in any other country. I suspect that that is wrong. Indeed. I am fairly certain that it is wrong. I suspect that the Government did not intend to do that. They were merely trying to extend plant patenting to cut flowers and Clause 2 was the simplest way of doing it. If, however, one follows the possibilities of Clause 2 through to the end, one sees that almost any end product of a plant could be patented and protected in this kind of way. This is rather absurd and I do not believe that it was intended.
I suggest that a simple solution is to limit the effect of this clause to the aim which was intended; namely, the protection of flower growers. Although I am prepared to admit that my amendment may not be drafted in the best way, I believe that it manages to do just that, and I beg to move.
Earl Ferrers: My Lords, the noble Lord, Lord Beaumont of Whitley, has an uncanny knack of lifting up stones and seeing what kind of slugs are underneath them. I am bound to say that this particular amendment of his is not necessary, since its effect is obtained by the provisions of Clause 2 of the Bill as it stands. One of the main purposes of the clause is to delete from the 1964 Act the provision which enables plant breeders' rights to be extended to the sale of end products such as blooms or fruit obtained by the seller from plants of protected varieties of plants which he has multiplied up in the United Kingdom. This provision has never been used, since it has been considered undesirable that a breeder should enjoy double protection. He should not be able to obtain royalties in respect of a product which has been obtained through the multiplying up of his variety as well as the royalties obtainable on the multiplication itself.
The provisions of paragraph 1 of Schedule 3 to the Act have applied since 1964 without difficulties of the kind which the amendment moved by the noble Lord is apparently designed to avert. But, even if Ministers were disposed to make a scheme extending breeders' rights to cover the production of plants for the sale of processed foods, medicines and so forth, there are fully adequate safeguards in Section 1 of the Act, which requires Ministers to consult representatives of interests concerned and then to proceed by way of statutory instrument subject to annulment by resolution in either House of Parliament.

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The noble Lord, Lord Beaumont of Whitley, referred to the Channel Islands, and there may be some misunderstanding regarding the application of the Bill to the Channel Islands. Clause 5(2) does no more than enable the Bill's provisions to be extended to the Channel Islands by Order in Council, in the same way as the provisions of the Act may be so extended. So far, the Channel Islands have declined such extension. In any case, the problem of imported cut blooms and so forth is not confined to the Channel Islands; other countries in Eastern Europe and Africa are involved in the trade. The official record of the UPOV Council meeting—that awful abbreviation stands for the International Union for the Protection of New Varieties of Plants—to which reference was made, shows that the United Kingdom representative referred to:
"cut flowers from the Channel Islands, for instance, or from more distant regions".
I hope that the noble Lord, Lord Beaumont of Whitley, will realise that his amendment and the worries with which it concerns itself are already covered by the Bill.
Lord Beaumont of Whitley: My Lords, I am grateful to the noble Earl for his explanation. I will go away and study it, and no doubt those who will have to deal with this Bill in another place will be doing the same. I was not entirely satisfied with the reassurance that the interests concerned will be consulted on this matter because I was making the point that the interests concerned are very often of such a nature that the Minister will be most unlikely to consult them. I suspect that the Minister will not be consulting any of the developing nations in whose land a number of these plants have their origin. The particular point about the development of the end product is a complex one, and whereas I believe we do need to look at it again—and by "we" I mean Parliament as a whole—I do not propose taking it any further at this time. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 4 not moved].
Schedule 1 [Amendments of the 1964 Act]:
Earl Ferrers Earl Ferrers moved Amendment No. 5:
Page 4, line 16, leave out from ("section") to end of line 18 and insert ("the words "in connection with the registered name of a plant variety" shall be omitted and for the words from "other than" onwards there shall be substituted the words "if—

(a) that mark or name and the registered name are juxtaposed; and

(b) the registered name is easily recognisable.".").

The noble Earl said: My Lords, I beg to move Amendment No. 5 and speak to Amendment No. 6, which is consequential. At the Committee stage of this Bill the noble Lord, Lord Walston, tabled an amendment to Schedule 1 to the Bill, which he was good enough to withdraw later on the basis of my assurance that I would examine the point which he had made and, if necessary, incorporate it into the Bill. As that point is related to the one which is the subject of the current amendment, I should like, with your Lordships' permission, to deal with that point first.
The concern expressed by the noble Lord was, in essence, that the term "reproductive material" as defined in Section 15 of the Plant Varieties and Seeds Act 1964 could be interpreted as including any kinds of material—for example, cut blooms, apples, and other fruit or vegetables for consumption—which were capable of being used for reproductive purposes, whether or not they were commonly so used and regardless of whether or not the purchaser intended to use them in that way. Had the noble Lord's interpretation been correct, the implication was that all such material would have had to be labelled with the registered variety name. To use again the example which was given by the noble Lord, his fear was that the apple which was sold and known generally as "Crispin" would have had to be labelled with its registered Japenese name, which I am told is "Mutsu", when it was displayed for sale on the greengrocers' shelves. After consideration, I find that the noble Lord's fear is unfounded.
Interpretation of the law is, of course, a matter for the courts. However, I am advised that the term "reproductive material" can properly be applied, in the case of non-ornamental plants and parts of non-ornamental plants, only to material for reproduction and not to material for consumption or some other use. It follows that apples and other fruit—and potatoes and other vegetables which are obviously being sold for consumption—are not reproductive material.
In the case of ornamental plants and parts of ornamental plants, however, the term "reproductive material" is in addition applied to material of a type—and I emphasise the word "type"—which is used commercially for purposes of propagation in the production of ornamental plants and cut flowers. For example, if a person buys a rose bush to plant in his garden for ornamental pleasure, he is nevertheless purchasing material of a type which is used for propagation in commerce and, therefore, the label must contain the varietal name as well as the trade name. Therefore, rose bushes and other ornamental plants which are used as propagating material in the trade—but not cut blooms which are not used for that purpose—must be regarded as reproductive material, and so are subject to the requirements of the Act concerning the use of registered variety names. I think that it is desirable and proper, both for the holders of rights—whose interests deserve protection—and for the buyers of plant material, who are entitled to know what registered variety they are purchasing, that this should be the case.
With regard to the amendments themselves, perhaps I may remind your Lordships that subparagraph 2(2) was introduced, with other provisions, in order to enable the United Kingdom to comply with, and to ratify the revised text of, the International Convention for the Protection of New Varieties of Plants. The convention requires that where a trade mark or trade name is used in association with a registered variety name the registered name must nevertheless be easily recognisable. Sub-paragraph 2(2) was drafted in order to provide that the trade mark or trade name should be given no greater prominence than the registered name.
It has been represented to the Government by the industry that the provision in the Bill as now worded is unduly onerous, and it could even be confusing to the average purchaser who would have no means of differentiating between the two names if they were given equal prominence in a label or catalogue. We have taken careful account of the industry's views and consider that they are right. Hence the amendment which stands on the Marshalled List; and we suggest, therefore, that the two names be juxtaposed. I beg to move.
On Question, amendment agreed to.
Schedule 2 [Repeals]:
Earl Ferrers Earl Ferrers moved Amendment No. 6:
Page 6, line 8, column 3, after ("section 5A,") insert ("in subsection (4) the words "in connection with the registered name of a plant variety" and").
On Question, amendment agreed to.

Fishing Vessels (Temporary Financial Assistance) Scheme 1982
7.38 p.m.
Earl Ferrers Earl Ferrers rose to move, That the scheme laid before the House on 1st December 1982 be approved.
The noble Earl said: My Lords, this scheme provides for the fishing industry. Your Lordships will be aware of the exceptional circumstances with which our fishing fleet has had to contend; in particular, the difficulties within the European Community over reaching a satisfactory common fisheries policy have unfortunately but inevitably created a climate of uncertainty in the industry.
The Government have been conscious of this problem, and of the need to help the industry to continue to operate effectively while the negotiations proceed. The Government made special payments to the industry of £17 million in 1980 and £25 million in 1981. After a review of the costs and earnings in the industry, the Government concluded that further special aid of £15 million should be provided for 1982. The aid was announced by my right honourable friend the Minister of Agriculture, Fisheries and Food on 27th October, and the statutory instrument was laid before Parliament on 1st December, It came into effect on the following day.
The scheme reflects closely the arrangements used to distribute the special payments made in 1980 and 1981. It provides for a single payment to the owners of each commercial fishing vessel which was registered in the United Kingdom fleet and available for fishing on 27th October. The scheme seeks to ensure that only vessels genuinely in the commercial fleet receive the aid, although there is provision for payment to an owner who was replacing a vessel and so had no active vessel at the crucial date.
One specific change from previous practice has been made to take account of the concern in the industry about certain vessels re-registered in our fleet, especially from Spain. The Government are taking measures to tighten the conditions for access to our fleet with the aim of permitting only genuinely British
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vessels to be accepted as being part of the fleet. Meanwhile, this scheme requires that in order to be eligible for aid any vessel must be crewed as to at least 75 per cent. by persons ordinarily resident in the United Kingdom. This condition should exclude from eligibility those vessels about which concern has been expressed.
The rate of payment under the scheme depends on the length of the vessel. In response to the views of the inshore sector of the industry we have increased the share of the total payments allocated to vessels of under 60 feet in length. While it is important to ensure that the larger vessels continue to receive a fair share of the aid, we have been able to set the rates for the smaller boats at about 8 per cent. higher than a direct conversion of last year's rates would have implied.
My Lords, this scheme has been welcomed by the fishing industry. It reflects the Government's continuing commitment to the wellbeing of the fleet. I commend it to your Lordships. I beg to move.
Moved, That the scheme laid before the House on 1st December 1982 be approved.—(Earl Ferrers.)
Lord John-Mackie: My Lords, I am sure the fishing industry are bound to be delighted with £15 million, and I think they deserve it. They have been in an uncertain state since all the argument started in the EEC. They are an industry that we have got to keep going, and I think this is the right way to do it.
There are three points that I should like to ask the noble Earl. The first one may be slightly facetious. Why the 27th October? Why not just seven months? That date is a Tuesday, if I remember rightly. It seems strange to finish the thing in the middle of the week.
In paragraph 8 it says that under the scheme no grant shall be made to any fishing vessel unless in the opinion of the appropriate Minister at least 75 per cent. of the vessel's crew were ordinarily resident in the United Kingdom on that day. How can he have an opinion about 75 per cent.? It is either 75 per cent. or it is not 75 per cent. What happens if there is a crew of three? How do you get 75 per cent. of a crew of three, or a crew of two? I just wonder how you solve that one.
The other point is that the noble Earl mentioned that the Government have altered the payments downwards, making them greater towards the smaller vessels. I do not know if my calculations are correct, but if you look at the figures you find that in the payments the bigger boats have 20 times the cash potential. If you take a 200-ft, boat, it has 20 times the potential of a 50-ft, boat as far as cash is concerned, but in size it has only four times the potential. It must have been an interesting exercise, deciding the amount of payment to the various sizes of boat. I wonder if the noble Earl could expand on that. Apart from those comments, we welcome the scheme and give it our support.
7.44 p.m.
Lord Campbell of Croy: My Lords, I should like to thank my noble friend for explaining the purposes of this order and for showing how these financial payments are going to fit into the programme of payments to fishing vessels over the last two to three years which has helped the fishing industry through a

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difficult period while the new Common Fisheries Policy for the EEC was being negotiated.
I should like to ask questions about one point concerning paragraph 8 and the question of Spanish vessels which have registered as British vessels in this country. My noble friend said that paragraph 8 was aimed to exclude them, but I wonder whether he could provide more information. There was an article in Lloyd's List on the 4th of this month, only a few days ago, which stated that there were no less than 60 of these Spanish fishing vessels registered at various ports in the United Kingdom, and it specified the ports and numbers of vessels. I would remind your Lordships that provided these vessels and the companies which own them meet various requirements, there is no legal reason why they should not operate, or there has not been in the past. For example, I understand that each vessel has to have a British skipper and a British mate. They have to meet the requirements of registration, such as having a United Kingdom company with its base in this country. I understand that they have been paying their United Kingdom taxes correctly.
The exclusion which paragraph 8 appears to make is one based on the percentage of the crew. As the noble Lord, Lord John-Mackie, pointed out, it is that 75 per cent. of the vessel's crew on a certain date should be ordinarily resident in the United Kingdom. It is left to the Minister's opinion, and I would be perfectly ready to leave it at that myself, given that there could be approximations connected with the numbers of the crew and dividing men into bits. What I should like to ask is whether the Government and my noble friend can give an assurance that all 60 of these vessels will be excluded from these payments.
I would remind your Lordships that the existence of these vessels fishing as United Kingdom vessels has caused great resentment among the British fishing industry, because they have got round all the agreements about the quota of fish to be caught by Spanish fishing vessels, Spain not being a member of the EEC, within the 200-mile limit of the EEC. I do not need to remind my noble friend that the whole question of agreement within the EEC is difficult enough, but when one then has these additional boats, which are to all intents and purposes Spanish and not British, coming in, it naturally causes a great deal of resentment. I spoke on this in your Lordships' House and your Lordships' Select Committee on a number of occasions when I was a member of the sub-committee concerning enlargement of the EEC, and therefore concerning Spain's application.
When Spain becomes a member the whole question of the Spanish fishing fleet and how that will fit into the Common Fisheries Policy is one that will need to be negotiated. But that this should be happening now, that 60 Spanish vessels should be able to fish as if they were United Kingdom vessels, is indeed something which causes resentment. That any of them should actually receive subsidy from the Government in addition, that they should actually get financial assistance under an order such as this, really would rub salt into the wounds. So I sincerely hope that my noble friend will be able to assure us that not one of these vessels will be able to qualify for these payments. As this order is drafted at the moment, should any of
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these vessels be employing some British crew in addition to the skipper and mate, who I understand they have to employ anyway, they might be able to get round paragraph 8.
I am afraid I have not been able to give my noble friend notice of this question. I have only recently flown from Scotland, the House having resumed only yesterday, and have myself been much involved in today's business, the Committee stage of the Scottish Bill. I nonetheless hope that my noble friend will be able to give me an assurance about this matter this evening.
7.50 p.m.
Earl Ferrers: My Lords, I am grateful for the views expressed by the noble Lord, Lord John-Mackie, and by my noble friend Lord Campbell of Croy. The noble Lord, Lord John-Mackie, was puzzled about why 27th October was the date specified. That is the date on which my right honourable friend made the announcement of the intention to pay aid and it is quite appropriate to make the basis for qualifying for aid the date which he used for the announcement. That is the reason why 27th October was chosen.
The noble Lord is also very worried about the difficulties that the rule about 75 per cent. of the crew being British will bring. I do not think that the noble Lord need be quite so worried about that because it is really a simple question of mathematics. He asked what would happen if there were only two people on the boat. In that case if one were British that would be 50 per cent. British. That would be ruled out. What happens if there are three chaps on the boat? If two are British, 66 per cent. will be British. In other words, that is under 75 per cent., so that will be ruled out. If there are four on the boat, I leave the noble Lord, Lord John-Mackie, to make his own mathematical calculations. I do not think that there is great difficulty there.
My noble friend Lord Campbell quite rightly referred to the anxiety created about the Spanish vessels re-registering as British. We are urgently considering legislative changes to overcome this problem with the Secretary of State for Trade. The Commission is also looking into this but in the meantime everything possible is being done to ensure that ex-foreign vessels comply with United Kingdom laws. As a result of that, a number of these prosecutions have been made recently and others are pending. Our decision to refuse aid to these vessels is an earnest of our intentions. We are confident that the rules will keep out the 60 vessels from benefit under the scheme. Of course I cannot give a guarantee that that will be so because it all depends on what happens when applications come forward, but the intention of the scheme and the intention of the way in which it is drafted is that they would not be eligible for benefit.
Lord Campbell of Croy: Before my noble friend sits down, may I ask whether that means that the Government are confident that, on a particular day, a day in the past which is the qualifying day for 75 per cent. of the crew being normally resident in the United Kingdom, in all the 60 vessels at least 75 per cent. of the crew were normally resident in Britain?
Earl Ferrers: What I said I was confident about was that the scheme, which includes the requirement, among other things, for 75 per cent. of the crew to have been British on that particular date, and all the other things which had to apply on that particular day, will result in those 60 vessels not being applicable for grant.
On Question, Motion agreed to.

Mental Health (Amendment) (Scotland) Bill [H.L.]
7.54 p.m.
House again in Committee on Clause 6.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 25:
Page 3, line 34, at end insert (" and on a date determined by the Secretary of State by order all reference to persons suffering from mental handicap shall be omitted from the Act.")
The noble Lord said: Mention was made of this amendment when we discussed the last amendment on the confusion in respect of "mental deficiency" and "mental handicap". I supported the Government: a change has been made and "mental handicap" is now the phrase, and I hope remains the phrase, to describe those who hitherto have been labelled "mentally deficient". I want to add to the end of Clause 6 another phrase,
"and on a date determined by the Secretary of State by order all reference to persons suffering from mental handicap shall be omitted from the Act."
People who are suffering from mental handicap are not mentally ill. They are mentally handicapped, which they may well have been from birth or from an accident, but they are not mentally ill. They are people who are not able to be cured of that disorder. It is not a mental illness, it is a handicap; and from that point of view it has been some people's feeling for a long time that, as the change has been made in England, the mentally handicapped should be dealt with in a Bill of their own. Because changes would need to be made in legislation which might take some time, I have not stipulated a date by which it would have to be done in respect of Scotland, because it means gathering together suitable legislation in respect of handicap and putting that into a separate Bill. Instead, I have said that,
"on a date determined by the Secretary of State by order",
this shall be done. It is not a year. It is not 18 months. It is not two years. I know that there are difficulties about it, but the power to do it will be there and the work can be done by the Scottish Office until such time as there is an opportunity for making this change, and then it shall be put before Parliament. I am sure that that would meet the wishes of most people concerned and it would meet the practical needs of the Government in respect of parliamentary legislative timetables. I beg to move.
The Earl of Mansfield: The noble Lord, Lord Ross of Marnock, spoke to his amendment on the last occasion, when Amendment No. 24 was discussed, and I also spoke at length. I do not think that I can really say very much more. What I have tried to say is that, although one has considerable sympathy with the relatives and those who are concerned with the mentally handicapped, I do not think the mentally handicapped themselves either know or care what is
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the legislation which affects them. The great mass of the public at large do not read the statutes and I do not suppose they appreciate that, for the purposes of legislation—although the provisions are similar in many cases and therefore it is convenient—the mentally ill and the mentally handicapped are the subject of legislation together. If they know it at all, they must realise that there is a complete difference as between these and the other provisions, except in such matters as the function of the Mental Welfare Commission.
What this comes to is whether we should legislate in this way in the hope that on some future occasion a Secretary of State will make the necessary order, realising, as I have said, that he will have had to work to produce a massive Bill which will take into effect all the legislation which has been more or less embodied in the 1960 Act. I believe it would be a mistake to do that. It would arouse public expectation. I think that there would be continuous pressure on the Secretary of State of the day to review all the processes which would have to be gone through before the legislation could be brought forward. It would be, in a way, unkind to the relatives of the mentally handicapped to engender hope or make them believe that there was an imminent change in the law when, in fact, as I have tried to tell the Committee, there is no imminent change, and we all know it. As I have said, the resources are simply not available to do this. In the circumstances, I have considerable sympathy with what is behind the amendment but for the reasons I have given I cannot recommend the Committee to accept it.
Lord Campbell of Croy: While I do not dissent from what my noble friend has said, whatever may be happening south of the Border I am not convinced that we need separate legislation for mentally handicapped people as compared with those who are mentally ill. However, I feel I must say something because some of your Lordships may recall that I was chairman for Scotland in the International Year of Disabled People in 1981, and one of the messages I was receiving, particularly through a publication of mine and also in other articles and speeches, concerned the difference between those who are mentally ill and those who are mentally handicapped.
I entirely agree with the noble Lord, Lord Ross of Marnock, that this difference has not been known in the past. Both categories of person, if they are severely affected, are disabled, but their condition—I speak in the presence of at least one medically qualified person, and I hope he will not mind my saying this as a layman—and normally their treatment, is quite different. At the beginning of the International Year I was disappointed to find so many people among the public I met or addressed at meetings who would say afterwards that they did not understand what I meant by the difference between mentally ill and mentally handicapped. I think the message is getting through, and it is important for everyone connected with both categories, but particularly for those who are mentally handicapped and who will be like it all their lives, and their relatives.
I agree with the sentiments expressed by the noble Lord, Lord Ross of Marnock, but I do not think that

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completely separate legislation is required in Scotland for the category of mentally handicapped.
Lord Winstanley: I very much agree with what has been said by the noble Lord, Lord Campbell of Croy, and it therefore follows that I agree with much of what has been said by the noble Lord, Lord Ross of Marnock. I do not want to go into the merits of the argument about the precise wording that is used, but in the earlier measure which we dealt with in your Lordships' House relating to England and Wales we spent a great deal of time on this particular matter, and the arguments were developed at great length. I think that noble Lords were satisfied by the force of the arguments.
The noble Lord, Lord Ross of Marnock, referred to the fact that as regards England and Wales we have taken certain steps to make this differentiation, which we regard as important. In replying to an earlier amendment the noble Earl stated quite categorically that there is not the slightest reason why people in Scotland should necessarily feel obliged to do the same as in England and Wales. If the Scots wish to do something differently, why not? Why not, indeed? I am poking my half-English nose into Scottish affairs; but perhaps I may suggest that the other half is Scottish, and as an excuse for intervening I could perhaps claim to be the only Member of your Lordships' Committee to have played "The Earl of Mansfield's March" on the bagpipes at the Braemar Gathering. I therefore have some kind of right to say something.
If in this Scottish Bill we are to do something differently and are to use words that are substantially different from words used for England and Wales, the obligation rests on the Minister who is dealing with the Bill to give the reasons for that. If things are to be done differently (and I am not saying that they should not be) the onus rests on those in charge of the Bill to say why they are taking a slightly different course from that which your Lordships adopted in relation to the other measure. I hope that the noble Earl can say a little more on why we should deal with this matter differently.
Baroness Masham of Ilton: All I want to say is that I support the amendment and the noble Lord, Lord Ross of Marnock, in this matter. After all, the amendment says that it is up to the Secretary of State to act when he can, and I believe that there is no harm in giving people hope. I do not believe that this would raise their hopes too much or too quickly, because the amendment does not say that.
Lord Ross of Marnock: I am disappointed that the Minister has given the very old reply that the people just do not know which Bill these measures are in, or what Act of Parliament. I do not know whether many Members of your Lordships' Committee know which Act of Parliament is concerned. Actually, it is not one Act of Parliament. We have given a lot of attention to this. We have made advances in the early detection of handicap, and have placed responsibility for that on the local authorities and health authorities. We find this in changes made in recent years for the mentally
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handicapped as regards education and pre-school education. We are not referring to one Act, but are taking them out of three or four Acts. I do not regard the 1960 Act as a massive Act. I have sufficient knowledge of the Scottish Office to have confidence in its ability to extract the mentally handicapped from it and, if necessary, to extract from the Education Acts those aspects concerning the mentally handicapped in respect of which they are singled out for special treatment in education, and to put that all into one Bill.
The people who know the difficulties about legislation are the parents of the mentally handicapped. They are the people who have never taken an interest in it, like many Members of Parliament and many Members of your Lordships' House, and who suddenly find it affects them, their families and their lives and who try to scramble through all sorts of pieces of legislation. They then discover that the main part deals with what used to be called the "insane". I do not suppose we are going back to that term, although for a moment I saw the Minister wavering in respect of "mental defective". When we used that more readily it was "lunatics", and "mental defectives". We got away from "lunatics", and it is now "mental illness". There is a difference.
The other point is that they will still be connected with the Mental Health Bill, because like everyone else the mentally handicapped can suffer from mental illness; but we are treating them in the same way as we are treating other people. I become more convinced of this the more I hear the kind of arguments we get from the Minister about the massive nature of the task. That is absolute nonsense. We can do this quite well. We can extract the mentally handicapped from the Bill and they can have their own Bill in our own time, or in the Secretary of State's own time, although I trust it will not be all that long.
I can remember that Scotland took the right to raise the school leaving age to 16 in 1918, but it was not done until 1946. The action was not exactly immediate. We are being reasonable in suggesting that, given a reasonable amount of time, to be determined by the Secretary of State, this change should be made. The change has been made elsewhere in the United Kingdom, and while we do not glory always in the difference, is there any reason in this case why the mentally handicapped should not be treated in the same way in England and in Scotland? That has been the tendency as regards new legislation. I see no reason why we should differ in respect of this matter. The Minister will know that this was urged upon him during the discussions which took place prior to the Bill. The argument put forward then was confusion, the massive nature of the matter and no real gain. The same was said about changing "mental defective" to "mentally handicapped", but the Government were convinced by the pressure.
I do not want to divide the Committee on this matter, certainly not at this stage. I want to give the Government time to think about it and to make some assessment of the views of those in Scotland who are interested in the problem. We are not asking for the impossible; we are being very reasonable in what we are doing. I do not know whether the Minister has anything more to say, or whether he can give me any

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heart about the matter. However, I assure him that if I withdraw this amendment today I shall put it down again at the next stage of the Bill, hoping that the House will then be a little less crowded than it is at present so that there will be more opportunity for more people to urge their case!
Meanwhile, I am very grateful for what was said by the noble Lord, Lord Campbell of Croy. We recognise his special interest in this matter, and we are very much aware of the work that he did during that momentous International Year of Disabled People. I wish to express my thanks, too, to the noble Lord, Lord Winstanley, for his remarks. He also knows something about this matter and probably, if we take the neutral voice of the neutral half "Noes", we might be coming to the right conclusion. If the Minister has nothing more to say I shall certainly withdraw the amendment, but I promise him that he will see it again and hear from us again on this subject. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.13 p.m.
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 26:
Page 3, leave out lines 39 to 42.
The noble Earl said: I beg to move Amendment No. 26. The subsection in question appears to me to cast the reflection on the medical profession that they are putting into hospital those who are, in fact, suffering not from mental disorder but from other defects of character. I do not quite know whether it is not satisfactorily worded or whether I fully understand the intention. It is true that people suffering from mental disorder are sometimes, and perhaps not infrequently, promiscuous. That is very undesirable because the progeny may also be slightly unbalanced in mind. It is also true that people who depend greatly on alcohol and on drugs may eventually suffer from mental disorders. But I am not quite certain that that is really what the subsection is intended to cover. It may be the other way round, that there are occasions on which hospitals are used as drying out institutions. That is clearly a misuse of a hospital.
I thought I understood from the recent Criminal Justice Act that there were going to be special institutions or special arrangements for people to dry out. I am not certain whether that is correct. However, I suggest that the wording here needs some change because it is casting on certain medical officers the aspersion that they are misusing hospitals intended for either the mentally ill or possibly even mentally disabled people, and using them for purposes for which they were not intended. If that is so it could possibly be a matter that should be dealt with by the medical authorities themselves. However, the wording at present is:
"under this Act as suffering from mental disorder".
It looks accordingly as though someone is making a misstatement. I do not know whether it is true or not. I am not clear what exactly is the purpose of this clause.
The Earl of Mansfield: The Scottish definition of "mental disorder", which is set out in Section 6 of the
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principal Act, says that "mental disorder" means mental illness or mental handicap however caused or manifested. That means that no person who exhibits promiscuous, immoral, deviant or addictive behaviour should for that reason alone be taken to be mentally disordered. Such behaviour may be symptomatic of mental disorder but it does not by itself constitute evidence of mental disorder.
Let me say at once that it is not strictly necessary for the provision in Clause 6(2) to be made. Indeed, it has been taken from the English Act. But there was thought to be an advantage in having this clear statement of principle incorporated into the legislation. People may not appreciate the full implications of the definition of "mental disorder", and I do not think that it does any harm to ensure that the law is perfectly clear on this point. However, one point that I would mention to my noble friend is that certainly nobody intends to cast any aspersions upon the medical profession.
The Earl of Selkirk: It clearly suggests that people are improperly put into hospital. I would only ask my noble friend to look at it to see whether the words could be changed. Am I correct in thinking that hospitals have been used as drying out institutions for people who are not mentally disabled but who are suffering from other defects? Is that what it is trying to get at? If it is, then I think that the wording could be changed to make the intention clearer. I am not very-happy with the wording as it stands. I have no particular desire to protect the medical profession, but it is suggested that hospitals are being misused. That may be the case, and if it is I should have thought that the subsection could be worded in slightly different terms.
The Earl of Mansfield: I think that I had better take the matter away and make some inquiries as to why it was considered necessary to have this declaratory subsection. It may be that it would be better out, but I shall see what I can do.
The Earl of Selkirk: I am very grateful to my noble friend.
Lord Ross of Marnock: The important point to remember is that it concerns not just those who are detained in hospital, but those people who were encouraged after the 1960 Act to go into hospital as voluntary patients. There could be abuse by people going into hospital because they are alcoholics—they are not suffering from a mental illness but they are alcoholics. We all know that it happens. I have even heard them referred to as "weekend visitors". They go in as voluntary patients and then discharge themselves, and probably reappear in another two or three months. Is it purely a matter of dependence on alcohol or drugs? The point which the noble Earl, Lord Selkirk, makes is very relevant. Maybe there is the implication that they are being treated when, according to the Act, they should not be treated, because that will certainly be the case if we pass this clause as it stands. I sincerely hope that the Minister will look very carefully at the implications as regards not only people detained, but treatment that can be given to voluntary patients in respect of both drugs and alcohol.
The Earl of Selkirk: I am grateful for what the noble Lord, Lord Ross, has said. It seems to me that there is a broad suggestion that hospitals are being misused. I do not think that we should say that in a statute. However, in view of what my noble friend says, I am very happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lyell Lord Lyell moved Amendments Nos. 27 and 29:
Page 4, line 4, leave out (" "severely mentally impaired" ") and insert (" "protected by the provisions of this section" ")
Page 4, line 5, after ("impaired";") insert—
("(aa) after subsection (6) there shall be inserted the following subsection—
"(6A) A woman is protected by the provisions of this section if she is suffering from a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning.";")
The noble Lord said: With the permission of your Lordships' Committee, I beg to move Amendments Nos. 27 and 29 together, because I understand that Amendments Nos. 28 and 30 have been removed from the Marshalled List. Section 96 of the principal Act which we find amended by subsection (3) of Clause 6, makes provision for the protection of those whom it describes as "female defectives".
The amendments to Section 96, which are set out in the Bill, are intended to retain the protection but to replace the term "a defective" and, above all, the definition of that term. In wishing to do this, unfortunately and quite unintentionally, the use of the term—which we would quote and which your Lordships may see in Amendment No. 27—"severely mentally impaired", relying as it does on the definition of that term which is to be inserted into the Act by paragraph 23 of Schedule 2 to the Bill, would restrict the protection offered at the moment by Section 96 to only those very few mentally handicapped females who are liable to compulsory admission to hospital.
The effect of Amendments Nos. 27 and 29 will be to restore and, indeed, we hope, to extend very slightly the protection which Section 96 affords against sexual abuse or exploitation of mentally handicapped females. With that brief, and I hope not too complicated explanation, I beg to move, if it is in order, Amendments Nos. 27 and 29 together.
On Question, amendments agreed to.
[Amendments Nos. 28 and 30 had been withdrawn from the Marshalled List.]
Clause 6, as amended, agreed to.
8.21 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 31:
After Clause 6, insert the following new clause:
("After Care.
. In section 7 of the principal Act there shall be added after subsection (1) a new subsection as follows:
"(1A) Without prejudice to the generality of the said section 27 the relevant authority in each area shall in respect of those who are or have been suffering from mental illness make provision for an after-care service and that service shall meet the requirements laid down by the Mental Welfare Commission of Scotland." ")
The noble Lord said: I am here proposing an important new clause. The Minister of State or, indeed, some other members of the Committee, may
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not be entirely happy with the wording, but I think that the general principle will be acceptable, if not to the Government, to everyone else. The clause insists that in each area there shall, in respect of those who are or have been suffering from mental illness, be suitable provision for an after-care service.
Earlier in the Committee stage I referred to the number of patients who leave hospital and who, because of lack of attention and after-care service, which is really essential, before very long find themselves back in hospital. It is probably a question of home treatment; it may well be a question of discipline. But there is no doubt at all that we require an after-care service which will pay for itself by keeping people out of hospital.
I understand that an after-care service is now mandatory in the English scene. Please do not let us have: "Because England has it, should Scotland have it?"; we have had enough of that today. It is common sense. This is the kind of thing we need. I sincerely hope that the Government will think so too.
It may be that the Government will object to requirements laid down by the Mental Welfare Commission of Scotland. I do not necessarily stick to that possibility. It could be the Secretary of State who lays them down. After all, in the long run he is responsible for the services of the local authorities. This is something that would be done by the local authorities and so, if the Government think that it would be far better to have this laid down by the Secretary of State as part of the local government functions of local authorities, then I am prepared to agree to that and would gladly withdraw the amendment so that that change could be made at a later stage.
But I must insist on this. If we care, if we want to protect and help those suffering from mental illness, let us not have them leave hospital in the sure and certain knowledge that, without proper after-care service, they will be back in hospital within two or three months. I beg to move.
Baroness Elliot of Harwood: I should like to comment on this. In the many years during which I was chairman of a health committee and a social work committee, after-care was the most important thing we had to do. We used to spend an enormous amount of time and trouble either getting the social work department to deal with this—because mostly it was that department that did so—or getting the help of voluntary organisations interested in mental health and in the after-care of mental patients. I am sure that it would be to the advantage of any local authority or health authority dealing with this aspect to know that no one leaves a mental hospital of any kind without the health committee or the health authority in the area being notified, and being absolutely certain that from that moment there is someone available to supervise, look after and care for that person, to ensure that he will not return to hospital, which otherwise is almost inevitable.
I beg the Government to include this facility in the Bill and to make it perfectly certain that we have the same after-care service in Scotland as is available under the English Act—such after-care as will prevent people returning to hospital.
Baroness Masham of Ilton: I moved an amendment in your Lordships' House concerning after-care when we were discussing the English Bill, and Amendment No. 88 which comes later is really the same amendment. However, there is a need for after-care for all mentally ill patients when they are discharged. As I am sure the noble Earl knows, many of them are schizophrenic, and when they are in hospital they are given treatment. Often when they leave hospital they throw away their tablets or do not take them and then all the problems return and, as the noble Lord, Lord Ross, has said, they find themselves back in hospital again. Therefore, it is essential to provide an after-care service for them; at the same time, by keeping them out of hospital, money would be saved. I fully support the amendment.
Lord Winstanley: In order that the noble Earl will be aware that the feeling on this particular matter is the same in all parts of your Lordships' Committee, I, too, should like to support what has been said. We have seen a change in attitudes towards the mentally ill throughout the whole of Britain in all its component parts. There has been a move away from the idea of hospitalisation and institutionalised care for the mentally ill, and suddenly community care has become the kind of popular catchphrase: that, provided these people are in the community, there is a general feeling that all is well; that we can close down the big institutions and make them smaller and smaller as long as people are cared for in the community.
That is all very well, but it is only all very well if you actually supply services of the kind which are necessary in the community to enable those people to remain in the community in a satisfactory condition. As has been said by the noble Lord, Lord Ross, and others, if we spend an enormous amount of money, as we do, on hospital care for many of these cases—the schizophrenics to whom the noble Baroness, Lady Masham, referred—and allow them to go home without the kind of support and after-care which they need, we are merely pouring those hospital resources down the drain. I think that the noble Earl should be under no illusions that this is a matter of desperate importance, and I am quite sure he will find that all Members in all parts of your Lordships' Committee feel the same about it.
The Earl of Mansfield: I can be brief in my reply to what has been said. It may help save time if I anticipate what I imagine the noble Baroness is going to say in support of Amendment No. 88. The Government accept that a specific provision in relation to after-care should be included in the Bill. The noble Lord, Lord Ross, has it right in seeking to include the provision in Section 7 of the principal Act and that it should apply to all mental patients. The draftsmen do not altogether like his wording, but if he will withdraw the amendment for now I shall undertake to come forward with a Government amendment at a later stage to give effect in substantial measure to what is proposed both in this Amendment No. 31 and in Amendment No. 88.
Lord Ross of Marnock: We have to thank the Minister of State for that response. I am sure it was in
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the knowledge that there was a blast coming both from the noble Baroness, Lady Masham, and from the noble Baroness, Lady Elliot, that he said: "I had better sort out these civil servants and make them change their minds about this. But don't worry, we will get away with it. We will blame Ross's words and get our own in". We shall watch these new words carefully, because there are times when we do not like the draftsman's words. When it comes to the examination of the new words I am sure I shall have the help of the noble Earl, Lord Selkirk, as well, because the pair of us are getting more and more suspicious with every line we read of this Bill.
I thank the Government for appreciating the feelings of the Committee in respect of the importance of, and the need for, after-care. In view of what the noble Earl says, I gladly help him by withdrawing the amendment, and eagerly look forward to the acceptance he has given us in principle of the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Viscount Simon): I have to tell the Committee that I have overlooked a mistake in the marshalling because Amendment No. 32 is not in fact an amendment to Clause 7. It is an amendment to Clause 6, and should have been taken before Amendment No. 31.
Clause 6 [Definition of "mental disorder"]:
8.32 p.m.
Baroness Stedman Baroness Stedman moved Amendment No. 32:
Page 4, line 8, at end insert—
("(4) After subsection (2) of section 7 of the principal Act there shall be inserted—
"(2A) (a) It shall be the duty of each Local Authority to present to the Secretary of State by such date as he will order made by statutory instrument appoint, and again five years after that date and so on at intervals of five years, a Mental Health Care Plan for their area.
(b) For the purposes of this subsection, each Local Authority shall appoint a Planning Group which shall include as members of it, representatives of the Health Board or Boards with responsibility for the area and appropriate Voluntary Organisations within the area. In appointing persons to that group, the Local Authority shall have regard to such matters as the Secretary of State may direct.
(c) In preparing a Mental Health Care Plan for the purpose of this subsection, it shall be the duty of a Planning Group to consider such matters as the Secretary of State may direct.".").
The noble Baroness said: It is with some diffidence that I intervene in a purely Scottish affair, but needs must since my noble friend Lord Taylor is at this moment extolling the virtues of Robbie Burns somewhere or other, and the noble and learned Lord, Lord Wilson of Langside, is snowed up in Scotland and cannot get down. Therefore, I am afraid that I have to be a rather inadequate substitute for the pair of them.
In moving this amendment, we feel that it would be helpful to the Scottish Office and all those concerned if the local authorities were asked to review their services. We ask only that the local authority shall appoint a planning group, and that that planning group shall include representatives of the authority, of the health board, and of the voluntary organisations concerned with looking after these people. It is something that local authorities do in most other

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fields. They have forward planning departments. They know that perhaps the resources are not available to do everything as they want, but they have at least got a plan to work to. What we suggest is that the local authority should form one of these planning groups for this purpose; that they should look at the services they see as being appropriate for their areas, and, even if they cannot implement them immediately, they can at least work towards them. I beg to move.
The Earl of Mansfield: This amendment seems to me to duplicate arrangements which already exist for co-operation between local authorities, health boards and voluntary organisations, not just for the mentally disordered but across the wide spectrum of health care provided in hospitals of various kinds and in the community for different client groups. Under Section 20 of the National Health Service (Scotland) Act 1972, health boards and local authorities already have a statutory duty to co-operate with one another. In 1977, the Secretary of State for Scotland, in a circular addressed to local authorities and health boards, strongly supported the setting up of Joint Liaison Committees between health boards and local authorities. This was one of a number of recommendations made by a working party, comprising representatives of health boards, local authorities and the Scottish Office, which was set up in 1975 to examine the pattern of relationships between health boards and local government and to advise on any special arrangements which might facilitate or improve the relationship.
In all parts of the country the local authorities and health boards already co-operate with one another in a constructive manner. In most areas formal Joint Liaison Committees have indeed been set up, with representatives of both the local authorities and the health boards, and these bodies advise on the planning and operation of services of common concern to both types of authority. These services, of course, include those in the fields of mental illness and mental handicap, where both the health and social work agencies have statutory responsibilities. Under the existing arrangements, it is already open to the Joint Liaison Committee to set up working groups to advise the Committee on particular issues of joint concern such as those to which this amendment refers, and in a number of instances this has indeed been done.
In my view it is unnecessary and almost unreasonable to make further statutory provision the effect of which will be to duplicate the existing machinery for consultation, which has not been running for a very long time. Furthermore, I think it would be wrong to impose on local authorities specific additional duties which would have expensive resource implications, and, for those reasons, I hope that the noble Baroness will see fit to withdraw this amendment.
Baroness Stedman: I am grateful to the noble Earl. Our information is that there are not very considerable resource implications in establishing such a planning board within the local authorities. I am sure that my noble friend will want to read what the noble Earl has said in Hansard tomorrow, and at this point of time I withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: The Committee has already agreed that Clause 6, as amended, shall stand part, and we come to Clause 7, Amendment No. 33.
Clause 7 [Appointment and functions of mental health officers]:
[Amendment No. 33 not moved.]
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 34:
Page 4, line 13, leave out ("officers") and insert ("persons")
The noble Lord said: It is nice to rise to move an amendment that you know is going to be accepted. I am perfectly sure that the Government will accept it, because if they look at line 30 they will see:
"In considering the appointment of a person as a mental health officer."
They are not officers. They are not officers until they are appointed. They are persons first. I beg to move.
The Earl of Mansfield: I am not going to quarrel with the noble Lord. I will accept his amendment.
On Question, amendment agreed to.
Lord Taylor of Gryfe Lord Taylor of Gryfe had given notice of his intention to move Amendment No. 35:
Page 4, line 13, leave out ("officers") and insert ("approved Social Workers")
Baroness Stedman: I beg to move Amendment No. 35, and may I at the same time speak to No. 41, which is really on the same subject. We feel that it is important that the mental health officers—
The Deputy Chairman of Committees: I am afraid that this amendment cannot be moved because Amendment No. 34 has already taken the word "officers" out and put in "persons".
Baroness Stedman: I beg your pardon.
[Amendment No. 35 not moved.]
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 36:
Page 4, line 16, after ("be") insert ("so")
The noble Lord said: This is really another piece of drafting, if we take it with the next amendment. Instead of saying,
"no person shall be appointed"—
there is the justification again for the change to "persons": the Government themselves use it—
"as a mental health officer unless",
That would be far better if it read,
"no person shall be so appointed unless".
It is purely drafting. I beg to move.
The Earl of Mansfield: I agree with the noble Lord.
On Question, amendment agreed to.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 37:
Page 4, line 16, leave out ("as a mental health officer")
The noble Lord said: I beg to move.
The Deputy Chairman of Committees: This, I understand, has been wrongly printed. It should be, "leave out 'as a mental health officer'."
On Question, amendment agreed to.
8.40 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 38:
Page 4, line 17, leave out ("local authority") and insert ("Secretary of State").
The noble Lord said: If this amendment is made the provision will read:
"no person shall be so appointed … unless he is approved by the … Secretary of State"
I am sorry that the noble Lord, Lord Taylor of Gryfe, who has shown considerable interest in the Bill, was not able to deal with Amendment No. 35 and the question of approved social workers. That term was used in the English Bill. It was considered in relation to Scotland, but it was decided to stick to the existing wording.
I pointed out on Second Reading that the wording here does not really make sense with the modern local government set-up. Under the 1960 Act the local health authority was dominated by the medical officer of health, who had medical officers under him, and he designated some of them as mental health officers. Today that task is being done by the social work department. They are not even social work officers, but are just social workers. The government discovered that more or less anyone in the social work department was being given the authority of a mental health officer. The position is not satisfactory yet, in my view, and I have sought to improve it by ensuring that those who will be doing the important tasks performed by mental health officers shall be qualified and competent; so the public will have a certain measure of guarantee by the reference to the Secretary of State in this provision.
The local authority is the body which has transgressed hitherto by appointing in many cases anybody at all from the social work department to become a mental health officer, without any qualification or training for that very important task. That is why I suggest that, from our experience of local government in relation to mental health officers, it would be far better to have it in the hands of, and approved by, the Secretary of State. That is the reason for and effect of the amendment, which I beg to move.
The Earl of Mansfield: The effect of the amendment would be to transfer from local authorities to the Secretary of State the responsibility for approving persons who are to be appointed as mental health officers as having appropriate competence in dealing with persons suffering from mental disorder. As the clause stands, no person is to be appointed a mental health officer unless he is approved by the local authority as having appropriate competence. So the question is whether it is to be the local authority or the Secretary of State who makes the decision.
It may be helpful if I explain that we have in mind two main concerns in relation to the appointment of mental health officers. The first is that they should be approved by their employer, the local authority, as having appropriate competence in dealing with
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persons who are mentally disordered. The second is that in considering the appointment of a person as a mental health officer a local authority should have regard to centrally determined minimum qualifications and standards of experience and competence. These will be the matters in relation to which the Secretary of State will give directions.
Consultation is taking place with professional and training bodies about the qualifications, training and experience which mental health officers should have, and guidance will be issued to local authorities in due course in the light of this consultation. Local authorities will be directed to have regard to this guidance, but will be able to appoint as a mental health officer anyone who is approved as having "appropriate competence". I feel sure that local authorities will welcome these guidelines because they will help to ensure that all mental health officers undertaking duties under the measure have received adequate specialised training and are experienced in dealing with mental disorder.
I should at this point stress that we are talking about guidelines, not about rules. Individual authorities will be able to work out the details of their local training programmes. But the new provisions will have real meaning only if all the local authorities concerned apply similar standards in approving social workers as mental health officers. Those are the Government's intentions, and I hope that, in the light of that explanation the noble Lord will feel able to withdraw the amendment.
Lord Ross of Marnock: I shall be able to withdraw it, though I am slightly troubled about a few other drafting matters to which we will come later and which relate to the possibility that we shall have different standards throughout the country. As the noble Earl said, they are guidelines—there will be nothing statutory about them—so that local authorities need only "have regard" to them. This is so important a matter that we want the standards to be set by the Secretary of State and those standards to be followed by the local authorities. Perhaps we should wait to see what the guidelines are. The noble Earl suggested that it would be up to the local authorities as to whether they accepted the guidelines and standards, and he hoped there would be uniformity of standards. We must go beyond that if we are really concerned about the matter.
Lord Winstanley: My knowledge of this subject is related much more to what is now happening in England and Wales than to what happens in Scotland, but my understanding is that this arose largely as a result of the Seebohm Report and the move to what are called generic social workers instead of specialist social workers in different fields. At one time, mental health officers and social workers doing mental health work had a detailed training. We then moved to a situation in England and Wales in which all social workers were "social workers"—full-stop. Some of them happened to look after children, others looked after the mentally ill, and so on.
My understanding of the present situation in England and Wales is that there has been substantial progress recently in redefining the training and

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qualifications of those appointed to be social workers in the mental health field. I wish to underline the request of the noble Lord, Lord Ross, that in all parts of Britain we proceed in a uniform way; one would not want one part of the nation to have mental health workers with less specific training than those in another part.
I therefore hope that when we return to the subject, as we no doubt shall, the Minister will be in a position to say precisely what is the present state of play in Scotland with regard to the negotiations which have been going on with those responsible for the profession of social workers—many noble Lords have had a great deal to do with the progress which has been made recently with training schemes; for example, the noble Baroness, Lady Faithfull, has done a great deal of work in that sphere—to provide for a uniform qualification in relation to the amount of training actually done. I hope the noble Earl will then be in a position to tell us that Scotland's standards will be every bit as high as those standards which, I understand, must apply in the rest of the United Kingdom.
The Earl of Selkirk: My amendment, to which we shall come next, is concerned with exactly the point just raised by the noble Lord, Lord Winstanley. The social worker with whom we are concerned here is a vitally important element. He is the man whom the local authority immediately puts in touch with someone who may require attention. He it is who, I suppose, collects two doctors to get their certificate and who then makes the application; and apparently he must make the application whether or not he likes it. This is a peculiar arrangement.
What I should like to know is this. I have put down two words—and it is merely a question of emphasis. They are "competence" and "capacity"; that is to say, whether a man is qualified or whether a man has a special ability to do the job. What are the qualifications? What sort of men (or women, for that matter) are you getting for this important job? They are not qualified doctors, they are not registered nurses. Have they any specific qualifications? This matter of protecting and handling people who through illness of some kind are of unbalanced mind is very difficult. Some people have a gift for it; others do not. In my mind it is difficult to conceive of a short training to enable a man to fulfil what I feel to be a fundamental role in the whole working of our system. I wonder whether we can be given any enlightenment. It is quite true that directions will be given. One can give directions, but how can one achieve the recruitment of someone who must hold the confidence of most of the community and, indeed, of the patient? I take it that it is meant to be that he should be personally acquainted with the patient. That is very difficult. There will not be many such. I should be very glad to have a little enlightenment on this important matter.
Lord Ross of Marnock: I am grateful to those noble Lords who have spoken. I think that they appreciate the complexity. I do not know whether the noble Lord, Lord Winstanley, appreciates that we started off in the 1960 Act under a different local government set-up in which the medical officer of health really was
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something. Then local government was re-organised, and the importance of the medical officer of health was very considerably changed, many of his services being spread over different authorities. But then you have to add the fact that there was a change made—I think it was in 1967; I should know because I was the Secretary of State who instituted it—when we introduced a social work Act in Scotland. Under that they took over tasks that used to be specific tasks. There used to be a children's committee, and there was no longer a children's committee; and there used to be a welfare committee, and there was no longer a welfare committee. They were all under the one, and that one was the social work committee.
In Scotland, more so than in England, there was the general term of "social work" and general training for social work even to the extent that you do not have in England. Probation officers in Scotland come under the social work department. I think that in England they are still separate and come under the Home Office. This is what makes me worried about whether or not there has been some failure to follow through all the changes in function of local government and, now, the new changes in function of the medical officer of health which stem form a different set-up altogether.
Knowing the set-up of social work historically, I am concerned about this. Are we in Scotland going to break away now from general social work? Are we going to have someone specialised in a particular field? This is what I want to know. It may well be that the person who is carrying out the after-care service—which I hope will be adequately provided for—or some other kind of service with those who are mentally ill will require more than one type of specialism because of the type of problem that will arise.
I will withdraw this amendment, where I seek to lay the responsibility on the Secretary of State. I will leave it with the local authority and hope that we will be able to get from the Minister of State a lucid explanation that will satisfy us all in respect of the training that will be given. I have another amendment which deals with the question about competence and capacity raised by the noble Earl, Lord Selkirk; it concerns the word "appropriate". I will not speak about it now, but will beg leave to withdraw this particular amendment.
Amendment, by leave, withdrawn.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 39:
Page 4, line 17, leave out ("appropriate")
The noble Lord said: This amendment seeks to leave out the word "appropriate". I think it is otiose and useless to specify "appropriate" competence in dealing with persons who are suffering from mental disorder. They either have competence or they have not got competence. The word "appropriate" does not add anything. I suggest that we leave it out. I beg to move.
The Earl of Mansfield: I am prepared to accept this amendment.
On Question, amendment agreed to.
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 40:
Page 4, line 18, leave out ("competence") and insert ("capacity")
The noble Earl said: I beg to move Amendment

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No. 40. I have really spoken to this. I wonder whether we can possibly elicit a little explanation. I admit that my amendment is purely a "fishing" amendment. There is a slight difference of emphasis between "competence" and "capacity". "Competence" indicates to me that a person has the qualification and "capacity" that the person has the ability to do the job. I would not pretend that there is a wider difference than that. This is a key point, as I see it, in this whole Bill, which turns on the quality of people who can fulfil this role. At the moment my mind is absolutely blank as to who that person is. I can think of friends who are good at it; and those who are not. There are perhaps not so many in the world who are able to fulfil this extremely delicate social task. I wonder whether we can expand a little upon this, if not now, then later on. It is really a most important appointment and the essence of this Bill will fall to the ground if we do not get the right people.
Lord Airedale: I do not think I would quarrel with the word "competence" in this context, though, if it were to be changed, I think that "capability" would perhaps be a better alternative than "capacity". But I really do not quarrel with the word "competence".
Baroness Elliot of Harwood: Having run a social work committee for a number of years, and a children's committee as well, and dealt with people who came from mental hospitals, I would assure my noble friend Lord Selkirk that in no circumstances would anyone be appointed to that job who was not a trained social worker with, very often, training in dealing with mental patients. At no point was any amateur or anyone who could just be described as "good with people" appointed to a post of that kind. It was extremely carefully advertised; people were interviewed and the whole thing was done in the most professional way possible. Certainly in the area where I operated, we would never have appointed anybody who was not absolutely first-class at this difficult job. I hope very much that that standard (which I am bound to say applied up to the year 1975) is continuing. It is certainly so in the area where I lived and where the social work department was responsible for these things. They are all trained people with great experience. Far from the word "competence", or whatever it is that people are putting forward, I would use the word "trained". What is needed is social work training, and it certainly takes three or four years before anybody should be allowed to undertake a job as important as this.
The Earl of Mansfield: If I may first of all reply to the actual narrow amendment of my noble friend, "competence" is the right word because one can have the capacity to do something and yet not be competent until one has been trained. If one has not the capacity, one is unlikely ever to become competent. That is the essential difference.
What I can tell the Committee regarding subsection (3) of this clause is that a working party is at present working on the guidelines. The working party consists of representatives of the Association of Directors of Social Work, the Central Council for the Education and Training of Social Workers and the British Associ-
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ation of Social Workers. My department is also represented. For the benefit of the noble Lord, Lord Winstanley, the working party is keeping a close eye on what is going on in England. The matter is being taken seriously. Between this stage and the next I shall make further inquiries, and if I can then help I shall do so. In the meantime, I hope that my noble friend will agree that "competence" is the right word in this particular instance.
The Earl of Selkirk: I shall not press this matter, but we have not learned a great deal. My noble friend Lady Elliot of Harwood told us that training in the Borders is of a high order.
Baroness Elliot of Harwood: Everywhere.
The Earl of Selkirk: Maybe everywhere. May I ask what certificate people get at the end of training? How do we know what the qualifications are? Who does the training? Is it a university or medical course? Do they give a certificate at the end of it?
Baroness Elliot of Harwood: Yes, it is a university course. They give a degree.
The Earl of Selkirk: I did not realise that. I should be interested to know whether all social health workers have a degree from a university. Perhaps the noble Earl will tell us about this at a later date. I shall now withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 41 not moved.]
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 42
Page 4, line 30, leave out ("In considering the appointment of') and insert ("Before appointing").
The noble Lord said: Perhaps we can take Amendm Amendment No. 42 together with Amendment No. 43.
The Earl of Mansfield: I would rather not do so.
Lord Ross of Marnoek: Then we shall take them separately. I suppose the Minister will accept the first one because it is purely drafting. But, for the weakness of this subsection, one has to read it as a whole:
"(3) In considering the appointment of a person as a mental health officer, a local authority shall have regard to …"
It does not say they "must" but they "shall have regard to". To my mind that is weak. I do not think that the phrase "in considering" is right, as the Secretary of State may direct. I suggest that we leave out "In considering the appointment" and insert "Before appointing". That will be much more decisive. I also consider that we should leave out:
"… shall have regard to such matters …"
and insert—and I hope this will please the heart of the noble Earl—the following:
"ensure that the person has the qualifications, experience and competence in respect of dealing with mental disorder and such other matters as the Secretary of State may direct."
That will be much clearer and nearer the type of question that has been sought from the noble Earl about qualifications than we have in the rather weak, watery words that are in subsection (3). I beg to move.
The Earl of Mansfield: I am prepared to accept this amendment.
On Question, amendment agreed to.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 43:
Page 4, line 31, leave out from ("shall") to ("matters") in line 32, and insert "ensure that the person has the qualifications, ex[experience and competence in respect of dealing with mental disorder and such other").
The noble Lord said: I beg to move.
The Earl of Mansfield: I am with the noble Lord in principle, but the draftsmen are not wholly with him. If he will withdraw the amendment I shall take it away and produce something else.
Lord Ross of Marnock: If the noble Earl, Lord Selkirk, allows me to withdraw the amendments, I shall gladly withdraw them. I know he is very anxious to see qualifications, experience and competence all tied together. That being so, and having had the right nod of the head from the Bench opposite, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 44 not moved]
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 45:
Page 4, line 45, after ("required") insert ("in writing").
The noble Lord said: This is a small amendment, but I recollect that somewhere else in the Bill we are insisting on somebody who agrees to something doing so in writing. I do not think that there is anything more important than a relative agreeing to someone being detained in a mental hospital. From the point of view of the safeguard of other people concerned it would not be a bad idea that we should put the words "in writing" in the Bill, so that it will read:
"It shall be the duty of a local authority, if so required in writing by the nearest relative".
They may well agree to it and then subsequently deny that. But the proof would be there in writing. That is the reason for the amendment. I beg to move.
The Earl of Mansfield: The effect of this amendment would be to require the nearest relative to apply to the local authority in writing. Most relatives in this predicament are faced with the urgent need to make an application, and they are more likely to make it by telephone or in person; therefore it would be inappropriate to require this application to be in writing. Indeed, it would negate the purpose of the provision. The whole point is to ensure that a nearest relative can obtain help when he or she may well be uncertain as to the steps to take. One has to visualise the situation where the nearest relative will probably be in some emotional state. He or she will probably have undergone an experience which will not be very pleasant and is therefore driven to make the application.
I would impress upon the noble Lord what I am sure he knows very well already—that this is the beginning of quite a long chain of proceedings. There is therefore no question of somebody being taken away from his home or wherever it is and incarcerated in a mental hospital, without proper regard being had to his rights, interests and welfare. So I really do not think there is any particular point in making an application in
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writing in such circumstances, and, as I have said, it may well negate the whole point of the subsection.
Lord Ross of Marnock: The Minister has been at his most persuasive. I gladly agree to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 46:
Page 5, line 4, leave out ("his admission to hospital") and insert ("admission or a guardianship application in respect of the patient").
The noble Earl said: A patient's nearest relative may be in doubt as to how to set about making an application under the 1960 Act, or may prefer that a mental health officer should make the application if he is prepared to do so. The new subsection which is inserted into Section 26 of the principal Act by paragraph (a) of subsection (3) of Clause 7 will enable a patient's nearest relative to require a local authority to direct a mental health officer to take the patient's case into consideration with a view to making an application for admission to hospital. There are, however, two kinds of application: applications for admission and guardianship applications. The nearest relative may require help with either kind, and the amendment will extend the provision to cover both. I beg to move.
On Question, amendment agreed to.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 47:
Page 5, line 33, leave out ("nevertheless").
The noble Lord said: We can make sense out of this only if we take Nos. 47, 48 and 49 together for discussion. The matter was raised by one of your Lordships concerning surprise that a mental health officer has to make an application for the detention of someone in hospital even though he himself thinks that the application should not be made. I, too, feel that this is quite wrong. I think it was the noble Earl, Lord Selkirk, who drew attention to this. What I have done, therefore, is, in the first amendment, to leave out the word "nevertheless", and, in the second amendment, to leave out the words
"the application; and it shall include—".
Therefore, the wording should now read:
"… but who is of the opinion that such an application should not be made shall make:

(a) a statement that in the opinion of the mental health officer the application should not be approved; and

(b) a statement of the grounds on which that opinion is based."

We then add a new subsection:
"Where a mental health officer considers that an application should not be made the application may be made by the medical practitioner approved for the purposes of section 27 of this Act.".
I think it would be quite wrong that an approved social worker or a mental health officer should be placed in a position in which, although he disagrees that an application for detention of someone in hospital must be made, he must make it, although he says that it should not be made and is not necessary. I think in a case like that you have to relieve the mental health officer of that obligation and ensure that something should be done on medical advice or on overwhelming advice—although the decision is eventually to be made by the sheriff—and then the medical practitioner should be allowed to make the application. Then, when it comes to the decision, the matter can be sorted out and the statement opposing it

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is already there from the mental health officer. I beg to move.
The Earl of Selkirk: I must say that I think the noble Lord, Lord Ross, is right. It is a slightly absurd position. Supposing the mental health officer refuses to make the application, there is no sanction upon him. You cannot put a duty on someone and say there is no sanction if he does not fulfil his duty. I think that something of this sort is really necessary, although this may not be the right way to do it.
The Earl of Mansfield: The provision in this Part of the clause is to avoid a fortunately rare possibility in which a mental health officer could find himself on the horns of a somewhat awkward dilemma. Circumstances can arise in which a psychiatrist who believes that a patient ought to be detained has no choice but to ask a mental health officer to make the necessary application. If the mental health officer honestly believes that the application should not be made he must either suppress his own views and make it or else take the risk that if the patient does, for example, commit suicide, he will be blamed for having brought about this tragic outcome by refusing to co-operate.
The provision which the noble Lord, Lord Ross, seeks to amend would rescue the mental health officer from this uncomfortable position. He would be obliged to make the application, but also to include a statement of his own opinion. The matter would then go before the sheriff, who is well qualified to weigh the merits of the opposing views and take an objective view as to whether he approves or refuses the application. This is a perfectly sensible way out of what could be an unpleasant situation.
But where I take issue with the noble Lord is over the matter of Amendment No. 49, because that flies in the face of one of the basic principles of the Act. Except in emergency, the detention of a patient is in pursuance of an application which must come from someone other than the doctors who are responsible for treating that patient. The application must be founded on two unbiased and objective medical recommendations, but the doctors would be placed in an invidious position if the application were to be made by one of them. I can assure your Lordships that there would be no support from any professional quarter—medical, social work or other—for this amendment.
So there is a dilemma here, as I have sought to illustrate, and this is a reasonable way round it, because it allows the mental health officer honestly to dissent from the view that has been taken. But, at the same time, it does the best for the patient and, above all, it does not breach the rule that the person who makes the application should be in no way connected with the persons who are, in fact, going to treat the patient. In those circumstances, I very much hope that the noble Lord will come to agree that this, and certainly not his amendment, is probably the best way out of it.
Lord Ross of Marnock: It may certainly not be my amendment, but if we have not got my amendment we have not got a way out. We are still compelling a man who believes that no application should be made to make an application. That, to my mind, is quite wrong. If I withdraw the amendment, it means that I
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will apply myself and I hope that others will apply themselves, to this dilemma and find a way out.
I am glad that the Minister appreciates that it is a dilemma. But I think it is absolutely ludicrous that, although a man who will be subject to all this experience, competence and so on, and who has been dealing with a person for quite a time, says, "No, this person should not be compulsorily detained in hospital", the Minister says that he has to make the application and be satisfied with making a statement as to why he opposes the very thing for which he is compelled to apply.
It may well be that my amendment does not meet the dilemma, but there is this other difficulty in respect of the medical practitioner. I am perfectly sure that we could find some other medical practitioner. I beg leave to withdraw my amendment, but I can promise the Minister of State that I will be searching, and I hope that others will help me to search, for another solution.
Amendment, by leave, withdrawn.
[Amendments Nos. 48 and 49 not moved.]
Clause 7, as amended, agreed to.
Clause 8 [Grounds for compulsory admission to hospital or guardianship]:
9.18 p.m.
Baroness Stedman Baroness Stedman moved Amendment No. 50:
Page 6, leave out from beginning of line 41 to end of line 3 on page 7.
The noble Baroness said: I should like to speak to Amendments Nos. 50 and 51. We have had a lot of discussion on the differences between mental illness and mental handicap in the process of this Committee stage. This is really just another attempt in these two amendments to try to clarify the position, and make it a little more understandable to those who will have to operate the Act. I beg to move.
The Earl of Mansfield: I take it that the noble Baroness would like me to deal with Amendment No. 50 first, because it is a very different matter from No. 51. The provisions which apply in this clause are identical, in effect, to those which were debated at considerable length in the House less than a year ago, in connection with the amendment of the equivalent legislation in England and Wales. In Scotland we go our own way where there is a good reason for doing so, or where we prefer our own methods. But, in this event, I do not think that there is any good reason for taking a different line on provisions which, I suggest, reflect a sensible compromise on a contentious issue.
The use of the terms "mental impairment" and "severe mental impairment" make it clear that mental handicap in itself can never be grounds for compulsory detention in hospital. For the grounds to be satisfied, a mentally handicapped person must be suffering from one of two specifically defined conditions, both of which are associated with abnormally aggressive or seriously irresponsible behaviour. Even then, in the case of mental impairment which is less than severe, there must be a likelihood that treatment in hospital will be of benefit to the person concerned.
I do not think that we are likely to come up with a better compromise on this particular issue than the provisions of this clause, and I hope that in this particular instance the noble Baroness will see fit to withdraw her amendment.
Baroness Stedman: In the light of what the noble Earl has said and in the absence of my Scottish friends, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 51 not moved.]
Clause 8 agreed to.
Clause 9 [Medical recommendations]:
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 52:
Page 8, line 15, after ("patient") insert ("or to the safety of other persons").
The noble Earl said: Where a patient is to be admitted to hospital or received into guardianship under Sections 24 or 25 of the principal Act, the relevant application must be supported by two medical recommendations. Section 27 provides that one of these medical recommendations must be made by a psychiatrist and the other, if possible, by the patient's general practitioner. It also provides that only one of the recommendations may be made by a doctor on the staff of the hospital to which the patient is to be admitted.
Clause 9(2) seeks to provide for the circumstances which can sometimes arise in which the patient is not known to a general practitioner or any other doctor outside the hospital. In such circumstances, hospital, medical staff may have great difficulty in finding an outside doctor who is willing to come and examine the patient and make a recommendation. The new provision will permit both medical recommendations to be made by doctors on the staff of the hospital, subject to certain stringent conditions. These conditions are designed to ensure that the two recommendations are made independently and that the normal rule is relaxed only in cases of urgency.
One of the conditions is that compliance with the normal rule would result in a delay involving serious risk to the health and safety of the patient. Elsewhere in the Act and in the Bill, the element of danger which may stem from a patient's mental disorder is expressed in terms of risk to both the health and safety of the patient and the safety of others. The purpose of this amendment, therefore, is to ensure that the new provision is consistent with others in this respect. I beg to move.
On Question, amendment agreed to.
[Amendment No. 53 not moved.]
Clause 9, as amended, agreed to.
Clauses 10 and 11 agreed to.
Clause 12 [Amendment of law relating to emergency admissions]:
The Deputy Chairman of Committees (Lord Murton of Lindisfarne): If Amendment No. 55 is agreed to, it will not be possible for the noble Lord, Lord Campbell of Croy, to move Amendment No. 56.
9.24 p.m.
Lord Campbell of Croy Lord Campbell of Croy moved Amendment No. 55:
Page 9, leave out lines 32 to 34.
The noble Lord said: I beg to move Amendment No. 55.I believe it would be for the convenience of the Committee if at the same time we were to discuss Amendment No. 56. As has just been pointed out,
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Amendments Nos. 55 and 56 are alternatives. Only one of them can be selected, not both. Amendment No. 55 would have the effect of reducing the period from seven to three days for Scotland as a whole. Amendment No. 56 would reduce the period for the areas of the islands councils, not for the whole of Scotland.
I realise that this provision of three days is already in the 1982 Act for England and Wales, and I accept that in this matter there is some advantage in having uniformity north and south of the Border. However, I am glad to note that my noble friend has already said today, and from amendments which he has down—notably Amendments Nos. 90 and 94—that he is not slavishly copying the legislation that was enacted last year for England and Wales.
Against the uniformity advantage there is the geographical problem in Scotland; the barriers of mountains and sea and the remoteness which exists in parts of Scotland. These are to be found in Scotland to a degree not experienced in England and Wales. In particular, there are the problems of transport between the islands and the mainland and between the islands themselves. There could be a patient in Stornoway or Lerwick and, if the procedure was followed, he could be taken to Inverness or Aberdeen respectively within three days and the medical assessment carried out. I would add that that is not necessarily as easy as one might think because, certainly, Inverness Airport is open for only two hours on a Sunday, as I myself know very well.
But I am thinking also of the remote islands—for example, Barra or Yell where the transport between the islands, before one gets anywhere near an airstrip or an airfield, can be slow or subject to delay. As for areas served by sea transport, it is not uncommon for ship connections between the islands and the mainland to be much delayed. My noble friend Lord Mansfield will know of the number of interruptions there have been so far this winter in the sea transport around Northern Scotland and the islands because of the winter gales.
If a patient is detained on an emergency recommendation on a Saturday in a remote place in Scotland, there may not be time for him to travel and for the medical assessment all to be carried out within 72 hours. I have been speaking about the islands, but there are areas of the mainland too where the remoteness means delay. Some areas are normally served by sea and not overland. In the news recently there has been the area of Knoydart; like other remote areas of that kind it is sparsely populated although served by sea. We have to legislate none the less for the single case.
I believe there is a good argument for the first amendment in my name; that is, deleting the proposed change from seven days to three days for the whole of Scotland. Members of the medical profession in Scotland are worried about this proposal to reduce the period. The problems are likely to be much more frequent in the areas of the three islands councils—that is, the three groups of Orkney, Shetland and Western Isles. So I come to my second amendment, Amendment No. 56, which I suggest that the Government might adopt if they are reluctant to accept Amendment No. 55.
Amendment No. 56 would cover the most difficult areas as regards remoteness, distances and reliability of transport. It would also illustrate a matter that arises from time to time in relation to the three islands groups. Recently the government have appointed the Montgomery Committee to examine the special problems of Orkney, Shetland and the Western Isles.
I would be grateful if my noble friend could make some comment this evening, or could perhaps consider in his own time an amendment of this kind and in this form—making an exception of, or making different arrangements for, the areas of the islands councils. Do the Government, for example, see any difficulty in including an amendment of this kind in a public Bill? The persons who are resident in the areas of the islands councils fall within a clear category within Scotland, and the three islands councils are themselves in a clear and distinct category, by their nature and also because their functions are entirely different from all the other local authorities in Scotland. So, even if the Government do not accept this amendment on this health subject, I would be interested in their comments on whether they see any difficulty about a section containing this kind of wording in a public Bill, or whether this kind of amendment would have to be treated, or might be thought to have to be treated, as private legislation.
The Earl of Selkirk: I would like to support what my noble friend Lord Campbell has said. I think these fixed periods are rather dangerous to leave as they stand. Supposing they are exceeded. There is no criminal sanction to it, but are these certificates invalid? Does the whole thing fall to the ground? I am quite certain many of these periods will be exceeded from time to time. What happens then? I suppose nothing happens; the doctor has done the best he can to meet the requirement. I think to stand too closely on these rigid figures may be a little counter-productive.
The Earl of Mansfield: I think I can take it that my noble friend Lord Campbell is concerned solely with geographical troubles and is not really suggesting that the period of seven days should not be reduced to 72 hours, as it were, on merit. If that is so, I think his concern is perhaps misplaced, and I say that for this reason. If one goes to Section 31(3) of the 1960 Act one can see there that three days are allowed for the removal of the patient, and the period of detention does not begin until the patient is admitted to the hospital. In other words, what we are saying is that, even if somebody is to be removed from the Western Isles to, let us say, Inverness, a period of no less than three days is allowed for them to get there. The period of 72 hours during which the patient may be detained in hospital naturally begins only when he is admitted to the hospital, and it is of course that period which is designed to provide sufficient time for a psychiatrist to decide whether further detention is necessary.
Even in the worst of the weather I think it will always be possible to get from Stornoway or somewhere in the outer isles to Inverness within a period of three days, particularly having regard to the modern flights which operate every day between those places. If that is so, my noble friend may agree that neither of his amendments is necessary. If I have got his point wrong, or if he really feels that three days is
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not necessarily sufficient to get from the outer isles, or any of the isles, to the hospital, which, as he says, is likely to be either Inverness or Aberdeen for these purposes, I will look at the matter again. Certainly from the information I have, I really do not think it is necessary.
Lord Campbell of Croy: Perhaps I could return to that point because I thought I had made it clear that it was not simply the journey between Stornoway and Inverness—which is one that I know quite well—or between Stornoway and Lerwick (one I know even better, having done it four times in the last few weeks) because from the capitals of those island groups to Inverness or Aberdeen is an easy flight, once one is in the air. But I thought I had made it clear that it is islands that are some distance from the capitals of the main groups, the lesser isles, which are the ones which often have difficulties with transport between the islands especially when there is no airstrip on those isles.
When my noble friend says that there are flights every day, I assure him that there are no flights on Sunday from Inverness to these places. I was allowing for the situation when these things happen at weekends. I was speaking also of a combination of factors. I was naturally emphasising the geographical barriers, the distances and remoteness, because that is the particular difference between the problems in northern Scotland and the position in England and Wales. I do not think there are places as remote or as difficult south of the Border, for which legislation of this kind was passed last year. That is why I am suggesting that there needs to be a different approach to the problems which I have described.
I emphasised the questions of distance and geography but I also included the accessibility of the appropriate psychiatrist. Members of the medical profession who have been in touch with me are worried also about their availability when these questions of distance and remoteness arise, because a psychiatrist may well go off to another part of the area, having to deal with some other case. Therefore, the question of his availability on the medical side also arises.
If my noble friend is quite confident that there will be no case of somebody who requires treatment—I am thinking of a patient on one of the smaller islands of the three island groups or in some other remote part of Scotland—being in difficulty owing to the provisions which he has been describing, then, naturally, I shall be satisfied. But I can tell him that the members of the medical profession to whom I have been speaking in northern Scotland, in the area around my home, are definitely worried about the proposed reduction. They accept that it is not something that is of any great concern perhaps in England and Wales, but different factors apply in Scotland, especially in the remoter areas of Scotland.
I am grateful to my noble friend for giving me the assurance that he has so far, but—it was with the particular cases of patients in Stornoway or Lerwick that I am concerned about—someone who has to get to Stornoway or Lerwick from another island first. He may find that in bad weather conditions it takes him a

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day or two to reach the starting point at Stornoway or Lerwick. That is the kind of situation I have in mind.
The Earl of Mansfield: With whatever sanity I possess, I must say I have knocked all round the Western Isles in all sorts of weather in the last three and a half years and I have never taken anything like 72 hours to get back to Edinburgh or Glasgow. I think what I should do is this. As my noble friend says that apparently the medical gentlemen have expressed anxieties to him, that is something I must go into. I shall do that if he will be good enough to withdraw his amendment for now.
Lord Campbell of Croy: I am very grateful to my noble friend. I would not ask him without notice to comment on the more general point I was putting, which is of wider application but of great interest. I am referring the question of the form of the second amendment; that is to say, whether an amendment which would make exception for the areas of the three islands' councils is an amendment in a form acceptable in a public Bill. I hope that he will be able to get in touch with me about that in due course. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 56, 57 and 58 not moved]
9.40 p.m
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 59:
Page 10, line 1, leave out subsection (2).
The noble Earl said: I have already spoken to this amendment on Amendment No. 54. I beg to move,
Lord Ross of Marnock: I know that I am in terrible company on this amendment. I did not recognise it. I thought that the Minister said Amendment No. 54, but it is Amendment No. 59 on which his name is strangely bracketed with mine. It is more than just a formal amendment. We are seeking to save the draftsman from a terrible error. This is something that should never have been done on a Scottish Bill, anticipating dealing with something in this subsection as renumbered by Clause 13 of this Bill. We have not yet come to Clause 13. It is very bad drafting and I am glad the Minister agrees with me. I hope that he will also agree that when we reach Clause 13 another amendment is required to put things right. I support the Minister in this amendment.
On Question, amendment agreed to.
[Amendment No. 60 had been withdrawn from the Marshalled List.]
Clause 12, as amended, agreed to.
Clause 13 [Power to detain patients already in hospital]:
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 61:
Page 10, line 8, after ("section") insert ("and after the word "or" where first occurring there shall be inserted the words "subject to section 31(6) of this Act".").
The noble Lord said: Having done what we did on the last amendment, we have to put it in the right order and that is the purpose of this amendment. It is a redrafting between Clause 12(2) and this opening subsection of Clause 13. I beg to move.
The Earl of Mansfield: On the face of it, the proposal in Clause 13 might, I suppose, constitute an unjustifiable addition to the existing powers to detain patients and be contrary to the spirit of the 1960 Act. It is however of the essence of the 1960 Act that a patient should not be detained unless it is absolutely necessary. If a patient is willing to enter hospital voluntarily for the treatment which he requires, he should not be detained simply because there is a possibility that he may at some time act unpredictably so as to place himself or others at risk. It surely follows, in full accordance with the spirit of the Act, that powers should be available to prevent a voluntary patient from leaving hospital if it is thought that serious harm would be likely to result from his doing so—if, for example, he had made it clear that his intention was to commit suicide.
Such circumstances are not likely to arise with any great frequency, and in most cases a doctor would be available to decide whether the patient should be detained under an emergency recommendation. In some cases, however, there may be no doctor immediately available, and it is left to the nurses to prevent the patient from leaving the hospital. Nurses are uncertain as to whether they have any right to stop a voluntary patient who intends to leave. I hope your Lordships will agree that it would be undesirable and potentially dangerous to allow that uncertainty to persist. Without the provisions made in Clause 13, the uncertainty would not merely persist: it would become more serious in Scotland because similar provisions have been made in respect of England and Wales by Section 6 of the Mental Health (Amendment) Act 1982. The absence of such provisions in the Scottish legislation could have tragic consequences and I hope your Lordships will agree, therefore, that Clause 13 should stand part of the Bill.
The noble Lord, Lord Ross, has moved three amendments—
Lord Ross of Marnock: I have moved only one.
The Earl of Mansfield: He has put down three amendments.
Lord Ross of Marnock: Yes, but with all due respect, I never mentioned the principles of the Bill. I dealt with a purely drafting point which was consequential on an amendment that should have been moved to the previous clause. I have never mentioned the substance of the Bill at all; that will come in my later amendments.
The Earl of Mansfield: I suppose that my desire to limit the debate to a reasonable time was probably ill advised. As regards Amendment No. 61, I accept the principle of the amendment but not its form. If the noble Lord will seek to withdraw it, I will arrange for a substitute to be prepared.
Lord Ross of Marnock: I shall be very glad to do so and also very glad for it to be suggested to me where the amendment is wrong. However, I shall take the draftsman's word for it. I beg leave to withdraw Amendment No. 61.
Amendment, by leave, withdrawn.
9.47 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 62:
Page 10, line 14, leave out ("of the prescribed class")
The noble Lord said: I beg to move Amendment No. 62. A power is being given to a nurse—a unique power in Scotland—to detain a patient against his will for, I think, six hours. We have no indication as to the nature of the nurse or the qualifications of the nurse; it just says, "of the prescribed class". I would like a little more information about the specialties of this nurse to whom the Government suggest that we should give this unique power, which we have previously never had in Scotland. I beg to move.
The Earl of Mansfield: This is very similar to Section 6(3) of the Mental Health (Amendment) Act 1982. Nurses of the prescribed class are nurses who have experience of these particular types of mental care. I am not sure whether the noble Lord is actually attacking what is proposed. Nursing organisations, including the Confederation of Health Service Employees, have requested that some provision be made to clarify their position.
It should be pointed out that these detention powers are to be used only when absolutely necessary. It is essential that powers are available in circumstances where the need for detention may arise suddenly and unexpectedly and the only alternative would be a wider use of detention in cases where there is a risk of unpredictable behaviour.
So far as this amendment is concerned, if it were to make sense it would have to be coupled with an amendment to remove subsection (4) of the new provisions. If such an amendment had been moved and agreed to, any nurse would be able to exercise the new power. The nursing profession does not want that. As I have said, the intention is that the new power should be exercised only by registered nurses qualified in mental illness or mental deficiency.
Lord Winstanley: The Bill states:
"a nurse of the prescribed class".
Can the noble Earl tell the Committee who prescribes?
Lord Ross of Marnock: It comes under subsection (4); it is the Secretary of State, by order. Had I intended to attack this whole matter, I should have gone the whole hog. I should have suggested another amendment to leave out subsection (4)—which is the answer to the noble Lord, Lord Winstanley.
"In subsection (2)… "prescribed" means prescribed by an order made by the Secretary of State".
But, with all due respect to that, "prescribed" means prescribed. That is world-shattering information; I am sure that we are all very much happier about that; we are all clear as to what that means. Of course we are not.
I want the Minister to explain "of the prescribed class." The noble Earl referred to experience. Experience for how long?—a fortnight, a week, two days? I think that we are entitled to be treated as reasonably intelligent individuals and should be given some information as to what is in the Government's mind in respect of that. We have to be satisfied here and in another place, as well as some nursing association
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being satisfied. I think that the nursing association would be very worried indeed about it. It may well be that they have been given more information than we have. I want the information as to what type of nurse and what will be prescribed.
The Earl of Mansfield: As the noble Lord has already said, it is the Secretary of State who will prescribe. He is to make an order and will lay down those registered nurses who are qualified in mental illness or mental deficiency. There are classifications of registered mental nurse and registered nurse in mental deficiency.
Lord Ross of Marnock: Mental handicap.
The Earl of Mansfield: I do not know the precise details of who can be classified as a registered mental nurse, but I shall try to obtain the information as to the sort of order that the Secretary of State is likely to make when he carries out his duty under subsection (4) of this clause.
Lord Ross of Marnock: I do not think that we are going much further forward, but at some time or other we are to be told, and we are grateful for that. I shall certainly be even more grateful if the Minister, having wiped out in an earlier amendment the term "mental deficiency", will remain of that view and meantime use the words "mental handicap" when that is what he now means. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 63:
Page 10, line 25, leave out from ("hours") to ("or") in line 26.
The noble Lord said: This amendment raises another detail that concerns me. The Bill says:
"the patient may be detained in the hospital for a period of six hours from the time when these facts are so recorded".
It might be three hours before these facts are "so recorded". There is nothing to say that they have to be recorded immediately. When we are dealing with a period of time as short as six hours, the delay of a further hour is quite considerable. That is why I seek to leave out these words. I think it should start from the point of detention, and should provide:
"the patient may be detained in the hospital for a period of six hours"
and that is that; but not:
"from the time when these facts are so recorded",
without any qualification to ensure that these facts will be recorded at once. I beg to move.
The Earl of Mansfield: I am not at all certain that I can help the Committee. If a patient can only be detained once the nurse has made a record, he can walk out of the hospital while the record is being made. The noble Lord's amendment is unnecessary and would merely remove an explicit statement of what is in any case implied. In a matter of interpretation it is clear that the patient can be held while the record is being made, and the time taken to enter a few details on a prepared form would only be a matter of moments.

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This, I must say, does not convince me, and I do not think it will convince the noble Lord, Lord Ross. If I may, and if he will withdraw his amendment, I will take it away and consider it.
Lord Ross of Marnock: When the Minister suggested that what he was saying could not help me I was about to say how right he was. He quickly discovered he could not help himself. He did the wise thing, and on that promise I shall withdraw the amendment.
Amendment, by leave, withdrawn
On Question, Whether Clause 13 shall stand part of the Bill?
9.56 p.m.
Lord Ross of Marnock: This is new to Scotland. As far as I know, no one in Scotland has ever asked for this. Before we allow this to go through I hope the Government will tell us about threats of suicide, or actual suicides that have happened, because this power was not available. I am not convinced at all. There are very few people convinced that this is necessary. It would be wrong for us to let this pass. If this was early in the day I would divide the Committee on this, probably the most important thing in the Bill from this point of view.
I do not know whether or not my noble friend agrees with me. If he is trying to get me to create a Division, it is not on at this hour of the night. I am far too reasonable a person. It is a serious matter. I have not been convinced about it. To detain a person who may have been a voluntary patient, who went in on the understanding that he could come out when he wanted to, and to give power to a nurse to say, "No, you are not going out for at least six hours", requires far more proof than the fact that it was in the English Bill.
Where in Scotland has this difficulty arisen? It is strange that it should suddenly arise after this power has been given in respect of English hospitals. It is a pity there are not a few more of the Members here who were here earlier, but who preferred the delights of a Burns supper in this noble place to doing their work here. Well, I have always called the SDP the "superior drinking party". I am sure that they feel exactly the same way as I do about this particular clause. If we do not handle it now, we shall have to return to it later. May I have information about where these difficulties have arisen in Scotland, and how many there have been?
The Earl of Mansfield: I am not in a position to give chapter and verse as to the representations which have been made by the nursing professsion that in this particular instance Scotland should go down the same road as England and Wales. I am slightly surprised that the noble Lord had taken against Clause 13 quite so fiercely. It is a difficulty which can arise, that a voluntary patient who has arrived in circumstances where he would be a voluntary patient able to go announces that he is going to go, and a nurse is certian that a tragedy could very well ensue if the patient is allowed to leave—particularly, for instance, if he announces or it is obvious that he is going to commit suicide.
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If there is no doctor immediately available and the nurse is left in the position of having to prevent the patient from leaving the hospital, then what position is the nurse in? It is, at best, a position of uncertainty. All that Clause 13 does is to remove the uncertainty. It would be extraordinary if, in an area such as this, in England and Wales they quite happily pass Section 6 of their Act and, for reasons which I quite appreciate that the noble Lord harbours, we decide that we are not going to have any such provision in our Bill, and we do not really mind whether or not there could be these tragic consequences.
If the noble Lord really wants chapter and verse as to what cases there have been and the representations that have been made to us following the publication of the consultative document, I shall of course obtain the information; but for now I should have thought it would be only proper to allow the clause to remain in the Bill.
Lord Ross of Marnock: When a Government bring forward a Bill containing a power as new as this, they should already have all the arguments. I can only assume that when the Minister says. "Let us have the Bill and I will bring along all the arguments later", he does not have them, and I think he does not have them because he does not have any. However, I shall not divide the Committee on the issue.
Clause 13 agreed to.
Clause 14 [Short term detention]:
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 64:
Page 11, line 17, leave out ("(5)") and insert ("(6)").
The noble Earl said: This is a drafting amendment to correct a reference to a provision which was renumbered at some stage in the preparation of the Bill.
On Question, amendment agreed to.
Clause 14, as amended, agreed to.
Clause 15 agreed to.
Clause 16 [Duration of authority for detention and guardianship]:
[Amendments Nos. 65, 66 and 67 not moved]
Lord Lyell Lord Lyell moved Amendment No. 68:
Page 13, line 15, leave out ("have been") and insert ("appear to him to be").
The noble Lord said: This amendment seeks to resolve a drafting difficulty in relation to the requirement placed on a responsible medical officer to consult other professionals before he assesses the need for the detention of a patient to be renewed. The purpose of the provision is to ensure that a representative of every profession engaged in the medical treatment of a particular patient is consulted. Medical treatment is broadly defined for the purposes of the measure as including nursing and also care and training under medical supervision. It is conceivable that in a particular case a nurse, a psychologist, a social worker and an occupational therapist could all be brought into the consultation. In other cases, however,

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it might be that no professional other than a nurse would be involved. The important point is that where the patient is receiving attention from members of a variety of different professions, a member of each of those professions should be consulted.
It has proved difficult to express without ambiguity the intention behind this provision. However, the words "one or more other persons" and "appear to him to be professionally concerned" do not, as may be suspected, give the responsible medical officer discretion to consult just one person whose concern may be less apparent than another's. Where only nurses are involved in the patient's treatment, it will be sufficient to consult one nurse. But where, for example, both nurses and psychologists are involved, it will be necessary to consult one of each.
The amendment does not stand entirely on its own. Amendments Nos. 90 and 94, which I shall beg to move at a later stage in our proceedings, will have a similar effect on the requirement to consult which is included in the new provisions relating to consent to treatment. The explanation I have given, I am afraid in some detail, will be repeated in the code of practice which is to be published in accordance with the new provisions introduced by Clause 33. This will have considerably more authority than notes of guidance on the measure and will prevent deliberate exploitation of any ambiguity which may be read into the provisions in question. I apologise for the detailed nature of that explanation, which, I fear, was required by the nature of the amendment. I beg to move.
On Question, amendment agreed to.
10.5 p.m.
Lord Lyell Lord Lyell moved Amendments Nos. 69 and 70:
Page 13, line 31, leave out ("and")
line 35, at end insert ("and
(iv) at the end there shall be added the words "if such a report has been obtained.";")
The noble Lord said: I beg to move Amendments Nos. 69 and 70 together. These two amendments hang together. Amendment No. 69 is a paving amendment for Amendment No. 70 which is the substantive amendment. They are consequential upon an earlier amendment. No. 68. The new sub-paragraph which it is proposed to add to paragraph (c) will insert at the end of Section 39(4) of the principal Act the same words as appear at the end of the new subsection (3) which is substituted by paragraph (b) of Clause 16. I beg to move.
On Question, amendments agreed to.
[Amendment No. 71 not moved]
Clause 16, as amended, agreed to.
Clause 17 [Discharge of patients]:
Lord Lyell Lord Lyell moved Amendments Nos. 72 and 73:
Page 14, line 30, leave out ("subsection (2) of")
line 32, leave out paragraph (a)
The noble Lord said: I hope that it will be for the convenience of the Committee if I move Amendments Nos. 72 and 73 together. These are technical
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amendments. The words "under this Part of this Act", which appear in Section 43(1) of the principal Act, make it unnecessary to insert additional words as proposed in paragraph (a) of Clause 17. The amendment therefore removes paragraph (a) and makes the necessary consequential changes.
On Question, amendments agreed to.
Clause l7, as amended, agreed to.
Clauses 18, 19 and 20 agreed to.
Clause 21 [Right of appeal of restricted patients etc.]:
Lord Lyell Lord Lyell moved Amendments Nos. 76, 77, 78, 79, 80 and 81 en bloc:
Page 18, line 42, leave out ("discharged under") and insert ("remitted under subsection (2) of)
Page 19, line 12, leave out subsection (4) and insert—
(" (4) Where the sheriff makes a recommendation under subsection (1)(b) of this section the Secretan' of State may by warrant give a direction under subsection (2) of this section and in any case where the Secretary of State does not give such a direction the patient shall continue to be detained in a hospital under the relevant transfer direction and restriction direction.")
line 20, leave out ("discharged under") and insert ("remitted under subsection (2) of)
line 22, leave out (", 60C")
line 31, leave out ("has not been") and insert ("is not")
line 39, leave out subsection (3) and insert—
(" (3) If in any appeal under subsection (1) or (2) of this section the sheriff is satisfied as mentioned in section 60B(1) or (2) of this Act, he shall uphold the appeal and—

(a) where he is satisfied as mentioned in the said section 60B(1), he shall direct the absolute discharge of the patient;

(b) where he is satisfied as mentioned in the said section 60B(2), he shall direct, or (as the case may be) continue the conditional discharge of the patient; and, in either case, he may vary any condition to which the patient is subject in connection with his discharge or impose any condition which might have been imposed in connection therewith.

(4) Where a patient is absolutely discharged in an appeal under subsection (1) or (2) of this section he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.")
The noble Lord said: I beg to move Amendments Nos. 76 to 81 en bloc. These amendments seek to correct certain defects in the new Sections 60C and 60D which are among the new provisions to be introduced into the principle Act by Clause 21.
Where a transferred prisoner appeals under Section 60C for discharge from hospital, it would clearly be wrong for the sheriff to be required to discharge him into the community if he finds that there are no grounds for continuing his detention in hospital. Section 60C therefore provides for the sheriff in such cases to notify the Secretary of State of his finding. Where the sheriff finds that the patient would be entitled to absolute discharge the matter is straightforward: the patient should not any longer be detained in hospital, but should be returned to prison, to be released in due course in accordance with the normal arrangements applying to prisoners.
However, where the sheriff finds that the patient would be entitled to conditional discharge, it would not always be appropriate for the patient to be returned automatically to prison. What is required here is consideration as to whether the patient may be discharged from the hospital into the community under certain conditions, or whether he should be returned to prison. The effect of Section 60C, as

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amended, will be to enable the sheriff to recommend that the patient should remain in hospital while this matter is being decided.
The amendments to Section 60D will make clear the provision for the outcome of an appeal by a patient who, having been conditionally discharged, is then recalled to the hospital. At present, Section 60D(1)—that is approximately where Amendment No. 79 is concerned—merely provides for a right of appeal against recall. It is necessary to provide also for what is to happen if the appeal is upheld by the sheriff. That is what the new subsections (3) and (4) will do.
I have explained the purpose of some rather technical amendments to a set of very complex provisions. I think the Committee will agree that if they look right through Clause 21.I am confident that with the amendments that I have moved these provisions will now be in accordance with the Government's obligation to provide rights of appeal for patients who are subject to restrictions. If there are any points in relation to these provisions on which the Committee are not entirely satisfied I hope that—given the lateness of the hour—the Committee will allow me to go into greater detail in writing. I beg to move.
On Question, amendments agreed to.
Clause 21, as amended, agreed to.
Clause 22 [Restriction orders and restrictions directions]:
On Question, Whether Clause 22 shall be agreed to?
The Earl of Selkirk: May I refer to the last words in that clause: "from serious harm". Will the noble Lord consider whether the word "serious" is too strong? One might even leave it out. The words, "from harm" seem quite enough.
Lord Lyell: We are very grateful to my noble friend for his detailed scrutiny of the Bill. He is quite correct. There is clearly a need for the words "serious harm" as written. We shall consider his point. We thank him for raising it and we shall write to him, if that is acceptable.
Clause 22 agreed to.
Clause 23 [Continued detention in hospital]:
Lord Lyell Lord Lyell moved Amendment No. 82:
Page 21, line 32, leave out ("184") and insert ("183, 184, 384")
The noble Lord said: This amendment adds to the paragraph which Clause 23 inserts into Section 68 of the principal Act. The amendment adds a necessary reference to two further sections of the 1975 Act under which probation orders may be made. The paragraph would have been incomplete without these references. I beg to move.
On Question, amendment agreed to.
Clause 23, as amended, agreed to.
Clauses 24 and 25 agreed to.
Clause 26 [State Hospital Management Committees]:
[Amendments Nos. 83 to 86 not moved.]
Lord Lyell Lord Lyell moved Amendment No. 87:
Page 24, line 29, leave out ("to") and insert ("and")
The noble Lord said: This is a drafting amendment which has precisely the same purpose and effect in relation to the provisions concerning the state hospital management committees as Amendment No. 10 had in relation to those concerning the Mental Welfare Commission. With that brief explanation, I beg to move.
On Question, amendment agreed to.
Clause 26, as amended, agreed to.
Clause 27 agreed to.
10.15 p.m.
Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede moved Amendment No. 88:
Before Clause 28 insert the following new clause:—
"After care of persons leaving hospital or detention.
(.—(1) This section applies to persons who, having been detained under section 24, 31 or 32A of the principal Act, or having been admitted to the hospital in pursuance of a hospital order made under section 55 of the principal Act, or having been transferred from a hospital in pursuance of a transfer direction given under section 66 of the principal Act, cease to be detained and leave hospital.
(2) It shall be the duty of the Local Health Authority and of the Local Authority to provide, in cooperation with relevant Voluntary Agencies, after care services for any person to whom this section applies.
(3) The duty laid down by subsection (2) above shall continue until the Local Authority and the Local Health Authority are satisfied that the person concerned is no longer in need of such services.
(4) In this section "the Local Health Authority" means the Local Health Authority for the District and "the Local Authority" means the Local Authority for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained.")
The noble Lord said: On behalf of my noble friend Lord Ross of Marnock, I formally move this amendment.
Baroness Masham of Ilton: I should like very strongly to support this amendment as it was one which we moved successfully with the support of your Lordships in this Chamber. These are patients who are detained, some of whom can be exceedingly dangerous, and it is more than unwise to discharge them into the community without after-care. Some of them are psychopaths, murderers and sex offenders. Not only is it for their own good but for the good of their families and the community; and therefore I hope the Government will support this.
The Earl of Mansfield: I do not know whether the noble Baroness was in her place when we were discussing the last amendment regarding after-care, but I then gave the undertaking that not only would I consider it but I would bring forward a Government amendment on the subject.
Lord Campbell of Croy: May I just ask whether in fact it is correctly worded? In subsection (4) of this new clause, I wonder whether it is correct for a local health authority in Scotland to be the local health authority for the district. I only draw attention to the fact that the local authority units in Scotland are quite different, as are the health units; and it may be that, unless someone has given attention to the necessary changes, the amendment will need to be drafted rather differently if it is in a Scottish Bill.
Baroness Masham of Ilton: I should like just to say to the noble Earl that I was in my place but we were speaking to a different amendment and that one did not include detained patients. I am very pleased to hear what the noble Earl has to said.
The Earl of Mansfield: It may not have' been included, but I included it specifically.
Lord Ponsonby of Shulbrede: I have pleasure in begging leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 28 agreed to.
Clause 29 [Consent to treatment]:
Lord Winstanley Lord Winstanley moved Amendment No. 89:
Page 27, line 3, leave out ("is capable of understanding") and insert ("understands").
The noble Lord said: This is indeed a very important part of the Bill, dealing as it does with the rights of detained patients in relation to certain forms of treatment which it is considered should not be given to those patients without their express consent and a clear understanding that they have consented, and with a number of safeguards attached thereto. The matter being so important, I make no apology, despite the lateness of the hour, for dealing with it here and now, because, if I may say so, I think it is every bit as important as some of the matters about which we took a considerable time earlier and I do not think we should skate over this particular part of the Bill.
In many ways what is contained in this Bill in relation to the special forms of treatment is very satisfactory. There is treatment requiring consent and indeed certain safeguards; namely, a medical practitioner not being the medical practitioner responsible for the particular patient, and, in addition, two other persons who are appointed by the commission must certify in writing,
"that the patient is capable of understanding the nature, purpose and likely effects of the treatment in question and has consented to it".
The kinds of treatment we are considering in this section are matters like psychosurgery and certain other matters which will be listed by the Secretary of State in regulations which will be made. There are certain forms of treatment which were described in the English and Welsh Act as "treatments of special concern".
I regard this part of the Bill as satisfactory, but we could clarify it. It requires those certifying to state,
"in writing that the patient is capable of understanding the nature, purpose and likely effects of the treatment in question and has consented to it".
I may say here that I am also speaking to Amendment No. 93, which deals with precisely the same point at a later stage, so it will not be necessary to detain your Lordships' Committee again. The amendment merely seeks to delete the words "is capable of understanding" and to insert the word "understands". That is surely what matters. We are all capable of understanding many things, but it may be that we do not always understand. A patient may be capable of understanding the nature of the treatment and its likely effects, but he may not understand. He may not understand, perhaps, because of his own lack of attention. That is one factor. But he may also not understand because it may not have been explained to him with sufficient clarity. What we need to know is not just that the patient is capable of understanding, but that he does, in fact, understand.
The whole intention of this part of the Bill, which deals with all these cases except those covered under Section 93G, under which certain forms of treatment can be carried out in an emergency situation to protect the patient, is that we must be sure that the patient has consented. We must know that he has consented. If he does not actually understand, he can never say that he has consented. The fact that he is capable of understanding should not necessarily assure us that he has given an informed consent. Therefore, this amendment merely takes out the words "is capable of understanding" and substitutes the word "understands". I beg to move.
Lord Lyell: I am sure your Lordships will be very grateful to the noble Lord, Lord Winstanley, for very clearly and succinctly explaining the purpose of these two amendments, Nos. 89 and 93, which are in his name. We are fully in sympathy with the spirit of these amendments, but I would say immediately that we believe they would ask too much of those who are appointed to give certificates for the purposes of the new provisions in Clause 29.
Certainly, we need to ensure that where a specified form of treatment is to be given with the patient's consent, the patient both knows and understands what it is he is agreeing to. That is, indeed, the purpose of the provisions in question. However, while we can reasonably expect someone to talk to the patient and come to a view as to whether the patient is, or is not, capable of understanding what has been explained to him, it is quite another matter to ask that person to certify that the patient has definitely understood the full implications of a proposed form of treatment. The point is that no one can be absolutely certain as to what is going on in someone else's mind. One could ask a patient to say what he believes to be the nature, purpose and likely effects of a proposed form of treatment and receive a perfectly lucid and satisfactory answer. On that basis, one could honestly certify that the patient shows every evidence of full understanding. But, in our view, that would not be sufficient to enable one to certify with complete confidence that the patient does, in fact, understand.
Let me make it quite clear that, although there is an important difference between the words "is capable of understanding" and the word "understands", from the point of view of the person signing a certificate there should be very little difference in effect so far as the

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patient is concerned. We do not see how, in practice, one could reasonably form a view that the patient is capable of understanding the matters in question, without being confident in one's own mind that he does understand. However, being confident is one thing and signing a certificate to the effect that one is absolutely certain is another. Clause 33 of the Bill makes provision for a code of practice, in which it will be possible to express the intentions behind the new provisions more effectively than can be done by juggling with words in the Bill itself. We give the assurance that clear guidance on this point will be included in the code of practice. In the light of what I have said, I hope that the amendment will be withdrawn.
Lord Airedale: I do not think that the noble Lord, Lord Lyell, has fully understood the point which my noble friend made when he implied that there might be a case where a doctor is in a hurry and does not have the time and patience to go to the fullest lengths in order to make this perhaps rather dimwitted person understand fully. If the matter is not patiently, at length, explained to him, the doctor escapes liability because the patient is capable of understanding and that satisfies the paragraph, but care has not been taken to make certain that the patient does understand. That is why my noble friend wants the word "understands" to be put in the place of "is capable of understanding".
The noble Lord says that nobody knows exactly what goes on in the mind of somebody else. That is perfectly true. As a possible alternative, would the noble Lord consider saying that the doctor should be satisfied that the person understands or is of opinion that the person understands, rather than simply leaving it at "is capable of understanding"?
Lord Lyell: When I attempted to reply to the noble Lord, Lord Winstanley, it appeared to me that it was not so much a question of whether the patient was capable of understanding or being understood: it had far more to do with the doctor, psychologist, psychiatrist or whoever was speaking to the patient, because it was this person who had to sign the certificate. The effect I was striving to put to the noble Lord, Lord Winstanley, was that if one had to sign a certificate it was different from merely expressing an opinion or wondering whether the patient was capable of understanding, or did understand. There has to be a great deal of certainty if an expert is to sign a certificate. I wonder whether the noble Lord, Lord Airedale, would consider that merely expressing an opinion would be a strong enough basis upon which to sign a certificate. Signing a certificate is the basis of what we have included in 93A, 93B and 93C of Clause 29. However, I shall certainly take on board the point which has been raised by the noble Lord, Lord Airedale. I believe that the noble Lord, Lord Winstanley, has another point to put to me.
Lord Winstanley: I am grateful to the noble Lord. I was merely going to say that I am most certainly capable of understanding the noble Lord, though at this hour of the night I am not wholly satisfied that I totally understand him. I am grateful to my noble friend Lord Airedale for his support and for the
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suggestion which he has made. I am also grateful to the noble Lord for saying that he will consider the most helpful suggestion which was made to him by my noble friend.
Although I am not wholly reassured, may I say at this stage to the noble Lord, Lord Lyell, that I am partially reassured by what he said about the code of practice? It is possible that this point could be provided for effectively in the code of practice, but I shall wait until I have had the opportunity to study the noble Lord's words with a little more care. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.29 p.m.
Lord Lyell Lord Lyell moved Amendment No. 90:
Page 27, line 15, leave out from ("consult") to the end of line 19 and insert ("any one or more persons who appear to him to be professionally concerned with the patient's medical treatment.")
The noble Lord said: I beg to move Amendment No. 90, and with your Lordships' permission I wish to speak also to Amendments Nos. 94 and 95. The purpose of these amendments was explained when we considered Amendment No. 68, to which I spoke earlier, in relation to Clause 16.
The persons to be consulted under the relevant provisions in the new Sections 93B and 93C will be at least a nurse—and, wherever they are also involved in the care of the patient, any psychologist, social worker or other professional person who is so involved. I hope your Lordships will agree that all three of the amendments to which I have spoken—Amendments Nos. 90, 94 and 95—are sensible. I beg to move.
Lord Campbell of Croy: Amendment No. 95 is indeed one of my amendments, but I quite understand that my noble friend should wish my Amendments Nos. 95 and 90A—which is a similar amendment to the same wording in a previous passage—to be discussed with the Government amendments. The reason for this is that the Government have more than met the point in my amendments; they have taken my point and gone further. I rise to thank and congratulate them for that.
My concern was that there seemed to be a bias against anyone who is medically qualified. As the Bill is now worded, the action has to be taken by one medical practitioner and by four other people who, specifically, are not medical practitioners. As the Bill is at present drafted, this is prescribed in paragraph (a), where two persons have to sign the certificate and they must not be medical practitioners; and in sub section (3) there are two others, one of whom has to be a nurse and the other a person who is not a nurse. Neither of them are to be medical practitioners, but both have to have been professionally involved in the case. It is quite a problem to consider who that fourth person is going to be, who must be neither a nurse nor a medical practitioner. Except for a social worker, it is not easy to visualise enough professional people who might be involved in an individual case.
I believe my noble friend has made a good decision because, as I understand it now, in both sections, instead of two people it can be just one person—one or more—and they have simply to be people who, in the

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opinion of the medical practitioner, are professionally concerned in the case. That makes both sections very much more workable and will make it easier for the medical practitioner, who is basically the person who has to take the action.
On Question, amendment agreed to.
[Amendment No. 90A not moved.]
Lord Lyell Lord Lyell moved Amendment No. 91:
Page 27, line 26, after ("and") insert ("(b).").
The noble Lord said: At the outset I must apologise to my noble friend Lord Campbell of Croy for moving Amendment No. 95, which was in fact his amendment. He was very kind and I understand that we have fully satisfied him. If I may return to Amendments Nos. 91 and 92, your Lordships will recall that a minute ago I was dealing with Amendments Nos. 89 and 93 in the name of the noble Lord, Lord Winstanley, which dealt with the form of the certificates which are to be given in respect of the patient's ability to understand the nature, purpose and likely effects of certain forms of treatment. For the purpose of giving such certificates, the medical practitioner and two other people concerned are to have the right to visit and interview the patient in private and to inspect his medical records. Quite properly, only the medical practitioner is to have the right to examine the patient.
It has been strongly represented to the Government that the right to inspect medical records should also be confined to the medical practitioner, and that would be the effect of the amendment. This is a question of the patient's right to have the confidentiality of his medical records respected. In reaching a conclusion about the patient's ability to understand what is involved in the proposed form of treatment, the medical practitioner may well glean or obtain useful information from the patient's medical record. The information would not, however, be likely to be useful to the two non-medical people. Indeed, the purpose of requiring certificates from them is to have a non-medical view of the patient's ability to understand the matters in question, and they should not be swayed by what has been set down in the medical records.
On Question, amendment agreed to.
Lord Lyell Lord Lyell moved Amendment No. 92:
Page 27, line 29, leave out (" (b)")
On Question, amendment agreed to.
[Amendment No. 93 not moved.]
Lord Lyell Lord Lyell moved Amendment No. 94:
Page 28, line 31, leave out from ("consult") to the end of line 35 and insert ("any one or more persons who appear to him to be professionally concerned with the patient's medical treatment.")
On Question, amendment agreed to.
[Amendments Nos. 95 and 96 not moved.]
Clause 29, as amended, agreed to.
Clause 30 [Duty of boards of management of hospitals to give information to detained patients and nearest relatives.]:
10.37 p.m.
Lord Lyell Lord Lyell moved Amendment No. 97:
Page 31, line 9, leave out (", section 102 and section 104") and insert ("and sections 102, 102A and 104A")
The noble Lord said: This is a drafting amendment, the purpose of which is to ensure that appropriate references are made in the new provisions introduced by Clause 30 to other provisions which may affect patients and about which, where relevant, they should be informed. I beg to move.
On Question, amendment agreed to.
Clause 30, as amended, agreed to.
Clause 31 agreed to.
Clause 32 [Correspondence of patients]:
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 98:
Page 32, line 23, leave out ("Any") and insert ("No")
The noble Earl said: This clause deals with correspondence, and I have made two amendments here. First, I think it has the wrong emphasis. It says:
"Any postal package addressed to any person … may be withheld".
Quite frankly, it needs to say the opposite, that no postal package addressed by any patient may be withheld. That is really what they are saying, except with one minor exception. I suggest this is a better way of expressing that first part.
I have omitted paragraph (a) which says:
"if that person has requested that communications addressed to him by the patient should be withheld."
I am very anxious that there should not be any inhibition on patients writing letters. They have not very much to do and one of their entertainments is writing letters; it may be to the Lord Chancellor or other people. I think they should be given very free licence to do so as far as possible. There is one limitation, and it may be that I go too far in taking this out altogether; that is, if it causes distress to other people. That is a very small limitation. I do not think we should say, "You must not write any letters", for no reason. I wonder whether the Government would consider an amendment on the lines "unless the letter gives distress to the recipient", to indicate a valid and proper reason why a letter should not be written. Otherwise, I believe people in this distressing situation should be given the utmost liberty to write letters as they see fit. No doubt many of your Lordships receive letters of this sort; there is no harm in it, and on the whole it provides an outlet which, where possible, should not be denied. I beg to move.
The Earl of Mansfield: If one considers Clause 32, as opposed to Section 34, for instance, of the 1960 Act, in fact this clause introduces new provisions which much reduce the present powers to intercept patient correspondence. The reason for the change is that it is felt that patients should enjoy their freedoms, unless there is good reason to take them away; and that, of course, is entirely consistent with the European Convention on Human Rights. As I say, Clause 32 liberalises the régime as far as patients' correspondence is concerned.

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My noble friend's first amendment, Amendment No. 98, would drastically alter the effect of the new Section 102. That effect, taken together with the effect of Amendment No. 99, the second amendment, would be to provide explicitly that "no" rather than "any" postal packet addressed to a patient in a mental hospital would be withheld by the Post Office if the hospital was a state hospital and the board of management considered that the postal packet was likely to cause distress or danger. I do not believe that my noble friend is as hard-hearted as that implies. In fact, he says that he is not.
I believe that it is humane and reasonable to provide for a person who is receiving letters from a patient to be able to ask for them to be withheld. I appreciate what my noble friend says, that if mental patients, who do not have much to do, want to write letters which may embarrass their friends and relations, I suppose that is something which their friends and relations will probably put up with. Nevertheless, they very often write to third parties who really do not want to be embarrassed, and I think it is only reasonable to provide for such letters to be withheld. For instance, a patient can suffer from delusions which lead him to write a constant stream of letters to a particular person, which may be distressing in a variety of ways. Such a person should be given some right to protect himself against such distress.
In subsection (3) your Lordships will see included the noble and learned Lord the Lord Chancellor, who, I am afraid, obtains no protection. The persons concerned can write as many letters as they like and such will not be intercepted.
I take my noble friend's point. It might be an improvement if we were to write something into the clause to the effect that a person who wishes to have the letters intercepted should claim some kind of distress. It would be impossible to monitor. It would merely enjoin the person who, as it were, is claiming relief, to satisfy himself that he was not doing it merely out of a spirit of pique or irritation. If I undertake to think about the matter, perhaps my noble friend will be persuaded to withdraw the amendment.
Baroness Masham of Ilton: Before the noble Earl sits down, may I suggest that if he or I received a letter it is not really necessary to read the letters, if we do think they contain nothing we want to hear. It does no harm. I get lots of letters from people who perhaps have been in mental hospitals or are still in mental hospitals, and who ramble on. I do not always read them all, but it does no harm.
The Earl of Mansfield: I am afraid that I always do read the letters, because I always feel that among the dross one is going to find a nugget of gold. It occasionally happens that somebody who is receiving mental treatment and complains bitterly, suddenly actually points the finger in the right direction and one is in a position to help them. I have found that on more than one occasion, but I am afraid I do read all these letters and I read them right through.
The Earl of Selkirk: May I venture to agree with the noble Baroness, Lady Masham. I get some letters
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which I do not even open. I know the handwriting well and I have read a great many of them, and I have given up doing so altogether.
I do not agree with what my noble friend has said. It is much easier to say that no postal packet will be interfered with, lest they cause distress. I must say that my noble friend has subsection (3) wrong. Subsection (3) does not apply to people in hospitals. It applies only to people in state hospitals. That is a different proposition. May I, as a matter of drafting, suggest that it should be under quite a separate subsection. As it is, it is in a paragraph dealing with state hospitals, which is totally different from dealing with just hospitals. I should have thought that it would have been simpler to say "if it causes distress". It is a pity if people are discouraged from writing. As the noble Baroness said, one does not need to open the letters; they are generally pretty simple.
I merely want to make it clear that there is no easy way of stopping people from doing what is a very simple and innocent thing. I may be wrong, but I should have thought that comparatively few letters from hospitals really cause distress. It is only in those circumstances that it is necessary to take appropriate steps.
If the noble Earl shows that sympathy which is characteristic of him and looks at this again, I should be extremely grateful and will withdraw the amendment.
The Earl of Mansfield: I am grateful to my noble friend for putting me right on subsection (3). Of course I shall look at it again.
The Earl of Selkirk: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 99 not moved.]
Clause 32 agreed to.
Clause 33 [Code of practice]:
[Amendment Nos. 100, 101 and 101A not moved.]
Lord Winstanley Lord Winstanley moved Amendment No. 102:
Page 35, line 18, at end insert ("and the code of practice shall, in particular, give advice regarding the use of treatments which are not fully established and the need to obtain the informed consent of patients upon whom such treatments are attempted.")
The noble Lord said: I hope we can deal with this amendment fairly rapidly. It is essentially a probing amendment. It seeks to look further into what can be said in the Bill to define what will ultimately be included in the code of practice, which we all know will be very important to the working of the Bill when it becomes an Act. The amendment specifies certain matters which I believe will be helpful if included in the code of practice.
My understanding is that during the passage of the English and Welsh Bill an undertaking was given that such words would be included in the code of practice, and I merely seek an assurance that a similar undertaking might be given on this Bill. I beg to move.
The Earl of Mansfield: I am happy to give that undertaking if the noble Lord will withdraw the amendment.
Lord Winstanley: I am most grateful, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Winstanley Lord Winstanley moved Amendment No. 104:
Page 35, line 21, leave out from ("bodies") to end of line 23.
The noble Lord said: I am sure that this amendment, too, can be dealt with rapidly. The noble Earl will recollect, if he will cast his mind back several hours, that when he was speaking to his own Amendment No. 4, which sought to do precisely what this amendment proposes, he said that when we reached this amendment he would accept it. I beg to move.
The Earl of Mansfield: The noble Lord is right. I gave that assurance several hours ago, and I am happy to accept the amendment.
On Question, amendment agreed to.
Clause 33, as amended, agreed to.
[Amendment No. 105 not moved.]
Schedule 1 [Transitional provisions and savings]:
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 106:
Page 39, line 39, leave out ("regulation") and insert ("recommendation")
The noble Earl said: This is a drafting amendment to correct a mistake. I beg to move.
On Question, amendment agreed to.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 107:
Page 40, line 11, leave out ("transfer") and insert ("restriction")
The noble Earl said: This is a drafting amendment to correct an error. Paragraph 9 of Schedule 1 makes a transitional provision in relation to the effect of the amendment made to the principal Act by Clause 24. The provision should relate to "restriction" directions, not "transfer" directions, and the amendment will make the necessary substitution. I beg to move.
On Question, amendment agreed to.
Schedule 1, as amended, agreed to.
Schedule 2 [Minor and consequential amendments]:
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 108:
Page 40, line 34, leave out ("in") and insert ("to")
The noble Earl said: This is a straightforward drafting amendment. I beg to move.
On Question, amendment agreed to.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 109:
Page 41, line 1, at end insert—
(" . In the following provisions, for the words "local health authority" or "local health authorities", in each place where they occur, there shall be substituted the words "local authority" or "local authorities" respectively—

Section 5(2)

Section 7(1A)(c)

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Section 7(2)

Section 10(1)

Section 12(1)

Section 12(3)

Section 12(4)

Section 25(2)

Section 25(3)

Section 26(1)

Section 29(2)

Section 29(3)

Section 29(4)

Section 33(1)

Section 33(2)

Section 36(2)

Section 37(1)

Section 37(2)

Section 37(3)

Section 38(1)

Section 38(2)

Section 38(3)

Section 39(4)

Section 39(6)

Section 43(4)(b)

Section 43(5)

Section 44(2)

Section 44(3)

Section 48(2)

Section 49(2)

Section 51(1)

Section 53(2)

Section 87(1)

Section 87(2)

Section 88(2)

Section 91(1)

In Schedule 2, the entry relating to section 53.")
The noble Earl said: I beg to move Amendment No. 109, and it may be convenient if I also speak to Amendment No. 114, which is consequential to this amendment. The effect of these amendments is to remove from the Social Work (Scotland) Act 1968 a paragraph which provides for references in the principle Act to "local health authorities" to be construed as references to "local authorities" as defined for the purposes of the 1968 Act, and to amend the text of the principal Act so that references to "local authorities" will replace references to "local health authorities" wherever they appear. It is inconvenient and confusing to have an out-of-date expression occurring so frequently in the principal Act, and I hope your Lordships will agree that these amendments will make a desirable textual improvement. I beg to move.
On Question, amendment agreed to.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 110:
Page 41, line 50, after ("and") insert ("shall")
The noble Earl said: This is a small but important amendment. It inserts the word "shall" into the words which paragraph 5 of Schedule 2 will substitute for part of subsection (1A) of Section 7 of the principal Act. This will ensure that local authorities are required to comply with any directions given by the Secretary of State in relation to the making of arrangements for the purposes of Section 7. I beg to move.
On Question, amendment agreed to.
The Earl of Mansfield The Earl of Mansfield moved Amendments Nos. 111, 112 and 113:
Page 43, line 38, leave out ("(1)")
line 39, after ("directions)") insert ("—
(a) in subsection (1)")

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line 42, after ("Act") insert (";and—
(b) in subsection (2) for paragraph (c) there shall be substituted the following paragraph—
"(c) persons detained under the Immigration Act 1971.".")
The noble Earl said: I beg to move Amendments Nos. 111, 112 and 113 en bloc. These amendments bring up to date a reference in Section 66 of the principal Act to persons detained under the Aliens Order 1953. Section 66 provides for the transfer from prisons and other institutions to hospitals of prisoners who are found to be suffering from mental disorder. The amendment will substitute for the present reference a reference to persons detained under the Immigration Act 1971. I beg to move.
On Question, amendments agreed to.
Schedule 2, as amended, agreed to.
Schedule 3 [Repeals]:
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 114:
Page 48, line 34, column 3, leave out lines 34 to 36 and insert ("In Schedule 8, paragraph 50.")
On Question, amendment agreed to.
Schedule 3, as amended, agreed to.
House resumed: Bill reported with the amendments.

Dartford Tunnel Bill [H.L.] King's College London Bill [H.L.] Kingston upon Hull Bill [H.L.] Lloyds Bowmaker Bill [H.L.] Parkeston Quay Bill [H.L.] Pwllheli Harbour Bill [H.L.] Staffordshire Bill [H.L.]
Presented and read a first time.
House adjourned at six minutes before eleven o'clock.