HL Deb 18 January 1983 vol 437 cc1289-98

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 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 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'", 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 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 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 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 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.

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 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 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 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.

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