Sitting of 25 January 2005

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Manchester.
The Earl of Glasgow, having received a Writ of Summons in accordance with Standing Order 10 (Hereditary Peers: by-elections) following the death of the Earl Russell—took the Oath.

Army Uniforms
Lord Hoyle asked Her Majesty's Government:
What criteria are used in the procurement of uniforms for the Army.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach): My Lords, under the EU public procurement regulations, we may only consider the award criteria directly relevant to the nature of the items or services to be supplied in order to apply the principles of "most economically advantageous tender".
The published award criteria, in accordance with the public procurement regulations, for the recent cut and sewn garments contract, which includes combat uniforms for the Army, were technical compliance, cost of acquisition, issues relating to the contractor's ability to meet our partnering approach, and delivery.
Lord Hoyle: My Lords, have any of the camouflage uniforms been delivered to this country? Indeed, has any cloth been delivered to this country? Despite what my noble friend has said, will he reconsider the placing of the contract? It has gone to an ex-Red Army factory in China, which has poor labour conditions and is lacking when it comes to health and safety, at the expense of jobs in the north-west with a company that, as recently as Iraq, has been recommended for delivering on time and to schedule?
Lord Bach: My Lords, the cut and sewn contract, which has been looked at very carefully, was let after a fair and open competition against the published criteria. Cooneen Watts & Stone Limited, a UK company based in Northern Ireland, was the clear winner against these criteria. There have been four tests of the fabric from which the garments were made, which found that it was satisfactory. That is why we are satisfied about compliance so far with the contract. The first deliveries on the contract are due on 25 February, and we will of course check whether they are within the specifications.
Lord Astor of Hever: My Lords, officers and senior NCOs affected by regimental and band cuts are
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concerned at the high cost of changing their privately funded uniforms, such as expensive mess kits. Will funds be set aside to compensate them?
Lord Bach: My Lords, we are still working through all the consequences of the recent announcements made in this House and elsewhere on the reorganisation of the infantry, including the implications for changes to uniform and regimental embellishments. We are already looking at amending contracts with clothing suppliers to ensure that current stock levels are reduced in a proper and timely manner. We think that the overall costs should be modest and can be absorbed into in-year budgets as they occur. I can give the noble Lord this satisfaction: I confirm that non-commissioned officers and officers will not have to pay for their standard issue of uniform. I know that one of the considerations is for the non-standard issue of uniform, and I will take that back.
Lord Taylor of Blackburn: My Lords, can my noble friend give us the difference in prices?
Lord Bach: My Lords, I am afraid I am not in a position to give the difference between the prices, nor would it be appropriate for me to do so for a contract that was run commercially in the normal way. But I can say that all those who applied to be prime contractors for this contract—and it was a competition for a prime contractorship—are UK companies.
Lord Berkeley: My Lords, is it clear that the NCOs' and the officers' uniforms will also be made in China, or was that a different order which might be made in the UK?
Lord Bach: My Lords, the Question of my noble friend Lord Hoyle was about a particular contract for combat uniforms. The contract for uniforms referred to by the noble Lord, Lord Astor, is quite different.
Earl Attlee: My Lords, does the Minister agree that the cost of a new mess kit for an officer would be at least £500? In asking the question, I remind the House of my interest.
Lord Bach: My Lords, if the noble Earl says so, of course I agree with him.
Lord Hoyle: My Lords, in agreeing that the contract was placed with Cooneen Watts & Stone, will my noble friend confirm that the contract is with an ex-Red Army factory in China? Were the samples he described made in the UK or in China? My information is that they were produced in the UK.
Lord Bach: My Lords, I do not know where the fabric from which the garments were made was manufactured. I will write to my noble friend on that. He is quite right that the Chinese factory has a subcontract role, but all the consortium companies which submitted tenders for the contract were led by UK-based companies. As is the continuing trend in the clothing industry, whether we like it or not. most

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garment manufacture is sourced from overseas. Other bidders plan to have some of the items manufactured in countries as far apart as the Ukraine, Bulgaria, Romania, Sri Lanka, Dubai and China.
Lord Campbell-Savours: My Lords, if it is true that it is normal for these contracts to be placed overseas, why do we not simply buy the goods direct and save taxpayers a lot of money?
Lord Bach: My Lords, the prime contractor, whoever it is, in a contract such as this has a key role to play. We do not believe that we would get such efficient service if it were sent direct.

Construction Industry: Training
2.43 p.m.
Lord Harrison: asked Her Majesty's Government:
What action they are taking to promote opportunities for apprenticeships and work experience for those training to acquire skills in the United Kingdom's construction industry.
Lord Triesman: My Lords, we are expanding and improving both apprenticeships and work experience opportunities and engaging more employers to offer apprenticeships, including in construction. Construction is one of the priority sectors developing new sector skills agreements, which set out how the industry skills base will be improved. Apprenticeships and work experience will play a major role in achieving the goal of an all-qualified construction workforce by 2010.
Lord Harrison: My Lords, I thank my noble friend for that encouraging Answer. First, will the Government extend the successful pilot programme called OSAT, which is concerned with onsite training and assessment of apprentices in the construction industry, so that we can provide the 500,000 new recruits that we need each year in this important and vital industry? Secondly, will the Government help to rationalise the gathering of data for labour market intelligence and skills assessment, which currently falls among four separate government agencies and departments?
Lord Triesman: My Lords, I assure my noble friend that the initiative that he described a moment ago will continue. Because of the need for the half million further trained experts within the next six years within the industry, that programme will be very important. In all these areas, we are very reliant for intelligence on employers in the industry. Nobody knows what is needed in the industry in the medium and long term better than those who have to address that industry from a commercial point of view. Although a number of government agencies are indeed involved, they come together through the sector skills councils, where the evidence of employers is foremost.
Baroness Morris of Bolton: My Lords, this country is crying out for more plumbers, joiners and skilled
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tradesmen. Surely one of the best ways in which to encourage apprenticeships is to confer status and standing on practical vocational skills. Does not the Government risk sending out the wrong message with their obsession to push 50 per cent of young people into universities?
Lord Triesman: My Lords, the aspiration for 50 per cent of young people to qualify themselves to the highest possible level cannot be a bad one. However, the need is plain: we need more people with the skills that have just been described, and the sector skills councils are absolutely vital in that. They will reach skills agreements which will go to the heart of the programme, as is happening in construction. I have been astonished to find that the Official Opposition plan to abolish the councils that provide the employers with exactly the means that they seek to shape training, to put funding and training into operation and to offer routes to employment and career progression for young people. That must be one of the most surprising pieces of policy that anyone has heard of.
Baroness Walmsley: My Lords, could the Minister say what the Government are doing to encourage young people to complete the apprentice courses? I understand that both on the basic and on the advanced course the drop-out rate is about 50 per cent. On the employers' side, could the Government say whether they are convinced that they are reaching the right people, with the employer training pilot? Is it really reaching the SMEs that need assistance with training, or is it just going to the multinationals?
Lord Triesman: My Lords, construction completion rates are a cause for concern. However, there is a contrast to the improving standards for apprenticeship programmes as a whole. As a result of those improving standards, the number of those who drop out has been falling, from 60 per cent in 2002 to 34 per cent in 2004. The industry itself is made up in large part of very small firms, some of them micro-firms, unable to operate apprenticeship schemes on their own. We have tried to get the larger firms to use the firms downstream of them to provide apprenticeships, but with the larger firms co-ordinating and providing the content. That way, we are most likely to be able to deliver.
The Earl of Listowel: My Lords, is the Minister aware of the important work of National Grid Transco in training young offenders in custody in the repair and laying of pipes and in fork-lift driving, and of the very low rates of recidivism in those young men when they leave custody? What plans are there to expand that scheme to fill the gaps in the construction workforce to which the noble Lord, Lord Harrison, alluded?
Lord Triesman: My Lords, I am grateful to have been asked that question. I am aware of the scheme and there are plans to encourage it. Perhaps I could draw the attention of the House to one other scheme

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which illustrates very well the point made by the noble Earl. The Whitefriars Housing Group in Coventry, which owns and manages 20,000 homes, has an apprenticeship scheme for young people who are on the edge of serious criminal activity. Those young people, with a 90 per cent absentee record at school, have a 99 per cent attendance record at work. Indeed, one individual who was described as a one-person crime wave has just been awarded the apprenticeship of the year.
Lord Pilkington of Oxenford: My Lords, has the Minister considered the German experience where examinations for apprenticeships are done externally, where written reports are produced and where plumbers put their qualifications on the side of their vans? Could we not aim to do that?
Lord Triesman: My Lords, the House knows that apprenticeships constitute structured programmes of training which lead to recognised qualifications, giving the young people who take those apprenticeships the opportunity to work with an employer, to learn on the job, to build up knowledge and skills and to gain qualifications. It would be very good news if people put their qualifications on the sides of their vans.
Baroness Gardner of Parkes: My Lords, I declare an interest as a past vice-president of the National House Building Council. What percentage of women are going in for this training? They are eminently suited to undertake these highly skilled jobs.
Lord Triesman: My Lords, I do not have the overall figure for women as regards the 22,000 construction industry apprenticeships that are currently on offer, but I will write to the noble Baroness and provide it. I am told that the number and the proportion of women are going up. I believe that is also the case as regards other groups from ethnic minorities that have been under represented.
Lord Mackie of Benshie: My Lords, is the shortage due to the fact that employers will not employ apprentices or to the fact that apprentices are not paid enough to go into the job?
Lord Triesman: My Lords, happily, the number of apprentices in the construction industry is going up. There is every reason to believe that it will continue to go up. The fundamental thing for all these apprentices is that their aspirations are met by the courses they take, and that their abilities match them to real needs in the market so that they can see that they have a viable future. All of those factors are combining. That is a rather good news story for the United Kingdom.
Lord Harrison: My Lords, does my noble friend acknowledge that the Coventry-based Whitefriars Housing Group, which he has already mentioned, has been highly successful in recruiting apprentices from the ethnic minority groups in the local areas?
Lord Triesman: My Lords, that is quite true. It has been particularly successful in doing so. That was one
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of its aspirations. I mentioned the other aspiration in an earlier answer. Although I need to check a little further, I believe that I could make the same assertion about its recruitment of women.

Renewable Transport Fuel Obligation
2 52 p.m.
Lord Carter asked Her Majesty's Government:
What progress has been made with the implementation of a renewable transport fuel obligation.
Lord Davies of Oldham: My Lords, the Government announced in December 2004 that they would undertake a feasibility study on the possibility of introducing a renewable transport fuel obligation. It will seek to establish the cost-effectiveness and administrative feasibility of an obligation, as well as its compatibility with other government objectives. The study is under way, and an interdepartmental group is making good progress. We will be talking to stakeholders shortly and seeking their input to the study.
Lord Carter: My Lords, I thank my noble friend for that Answer, but is he aware that oilseed crops in the ground now for harvest this summer could produce the feedstock for biodiesel, if the Government and the oil companies had the will to implement the renewable transport fuel obligation that is on the statute book? That is exactly the kind of initiative that could show that the Government are serious about their wish to put climate change at the top of the environmental agenda. Is my noble friend also aware—he will not need reminding—that CO2 emissions from road transport are increasing at the moment?
Lord Davies of Oldham: My Lords, a plant in Scotland has just been constructed to produce biofuel. Another one in Middlesbrough, which is five times larger than the Scottish one, will come on stream shortly. My noble friend, who played a conspicuous part in including this issue in the Energy Act, will recognise that there are major issues relating to the transport obligation that require us to cover the angle of international trade and our obligations in the European Community and to look at the sustainability of the programme, given the difficulties that some biofuels can produce in some economies. There are many angles to look at. I assure my noble friend that the study is going ahead, and we intend to make rapid progress this year.
Lord Palmer: My Lords, is the noble Lord able to say roughly how rapid that progress will be? As the noble Lord, Lord Carter, mentioned, crops already growing in the ground now could be used by this coming September or October.
Lord Davies of Oldham: My Lords, the best indication of our commitment to make rapid progress is that we expect to set a target for 2010 this year. That is two years before we are obliged to do so under the

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European requirement; we do not need to do it until 2007. We expect to be in a position to set that target this year. That is proof of the emphasis that we are putting on the development.
Lord Ezra: My Lords, is it not surprising that the Government are launching yet another consultative inquiry into the issue of a renewable transport fuel obligation when they launched one in April last year and a majority of respondents replied in favour? The Energy Act 2004, drafted by the Government themselves, sets out in great detail how such an obligation should operate. Why is there this further delay?
Lord Davies of Oldham: My Lords, the noble Lord is, of course, right; the amendments tabled by the noble Lord, my noble friend and the noble Lord, Lord Palmer, formed the basis of the government amendment to the Energy Act that gives us the basis for progress on this work. However, the noble Lord will recognise that it is not an easy market to develop. We have a model from the electricity supply industry, but this is a much more complex market. We have a great deal of work to do in developing the scheme. As I indicated, we expect to make progress this year.
Earl Ferrers: My Lords, will the noble Lord be kind enough to have another shot at answering the question of the noble Lord, Lord Palmer? He asked when the plant was likely to come into operation. I think that the noble Lord forgot to answer that.
Lord Davies of Oldham: My Lords, if I did, I apologise. One plant is in operation now—the one in Scotland that I mentioned. The Middlesbrough plant is being constructed. However, the broader question of a renewable transport fuel obligation constitutes a much bigger issue. That was the focus of the original Question and is the issue with which we are wrestling, due to its great complexity.
Lord Berkeley: My Lords, will my noble friend confirm that the renewable transport study will include the aviation sector? He mentioned international trade. Any duty on aviation fuel would have to be at least Europe-wide. Will he confirm that that important sector will be included, as it does not pay any duty at all at the moment?
Lord Davies of Oldham: My Lords, the project that we are discussing relates to land transport and not to aviation. The aviation industry is governed by international rules that are more complex to change than those relating to the issue that we are discussing, to which we can effect changes through our own legislation. My noble friend will have noted that my right honourable friend the Prime Minister has indicated that he intends during his chairmanship of the G8 this year to place the issue of aviation fuel firmly within international consideration of airline emissions.
Baroness Byford: My Lords, does the Minister accept that, so far as I am concerned, his response will
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be greeted with dismay by the farming community and those who are trying to push renewable energy forward? Does he also accept that the two plants of which he has spoken, one in Scotland and one in Middlesbrough, will involve transporting items for miles, which will add to CO2 emissions? Will the Government try to hasten progress on the matter? As the noble Lord, Lord Ezra, rightly said, consultation has taken place. Cannot more plant be built before 2010, which, to be frank, is too long a delay?
Lord Davies of Oldham: My Lords, I was not indicating that the project involved 2010 as a date for the new plant; I was indicating that that would be the date on which we would have a percentage target to which we would be committed for the use of renewable fuels.
The noble Baroness will recognise that we must approach the issue with some care. It is not the case that an easy introduction of the scheme would be of immediate and instant benefit necessarily to British farmers. We operate in a worldwide competitive situation, and it is clear that some crops appropriate for such development can be grown a good deal more cheaply elsewhere. We must have regard to the obligation in order to ensure that we get benefits from it for our farmers in addition to the rest of the community.

Benefit Payments
3 p.m.
Baroness Noakes asked Her Majesty's Government:
Whether they are satisfied with the operation of systems and processes for the administration of benefit payments.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham): My Lords, the noble Baroness was kind enough to indicate that her concerns lay with the departmental accounts. Broadly, the answer is a qualified "yes". We are improving our processes and payments systems in three ways: first, by continuing to press down on fraud and error, but obviously we are dealing with high-value benefits and complex lives; secondly, by successfully introducing direct payments, with over 90 per cent client satisfaction; and, thirdly, by strengthening our services to the public with our pension service and our reforms in Jobcentre Plus.
Baroness Noakes: My Lords, I thank the noble Baroness for that reply. I am sure that she will recall that in the 1997 Labour Party manifesto, the Government stated:
"We will maintain action against benefit fraud of all kinds".
Can she therefore explain why the level of fraud and error in her department is at roughly £3 billion a year? Why has it stayed at that level for the past three years, and why it is three times the level that the Comptroller and Auditor-General regards as acceptable?
Baroness Hollis of Heigham: My Lords, the Auditor-General has qualified what was the DSS, now the DWP accounts since 1989. The noble Baroness will understand that this has been going on for some 15 years and over a number of governments. The previous government did not even begin to estimate fraud or tackle it seriously until 1995. We have worked hard, and we have virtually halved the level of fraud on the outstanding benefits, income support and JSA, since 1997. Then it was 10.4 per cent; now it is 6.4 per cent. We still have a long way to go, and I accept that. It is important that we do it, not only because the money wasted on fraud could have gone on 60,000 teachers or 60,000 nurses, but because fraud rots the welfare state.
Lord Marsh: My Lords, it is an extraordinary statement that accounts have been qualified with a problem of this size, I believe she said, since 1989. Are there any other departments with this problem? Any company would be out of business overnight.
Baroness Hollis of Heigham: My Lords, I do not think that other departments have this problem. They mostly collect payments. The problem here—which noble Lords will recognise, certainly if one reads Sir John Bourn's report—is because you are trying to calculate fraud. The DWP is the largest maker of payments anywhere in the world. There is a level of fraud where people work while claiming, or where lone parents have live-in boyfriends but claim as lone parents, or where there is fraud between landlord and tenant over housing benefit. Our problem is to calculate the amount that we think is being fraudulently extracted and then to press down on it. We have made huge headway; we have virtually halved it, and we should be given credit for that. We still have a long way to go, but I do not think that any other department is in the same situation of paying out some 150 million payments per year.
Lord Oakeshott of Seagrove Bay: My Lords, the noble Baroness claimed that the department was successfully introducing direct payments. Is she aware how hollow that claim will ring to 140,000 pensioners and incapacity benefit recipients who did not get their proper payments over the new year bank holiday weekend? They are from places as far apart as Merseyside and Swansea; and over 20,000 people in Northern Ireland were still waiting five days later. On 6 January, the DWP said that it was investigating this delay as a matter of urgency. What went wrong, and what action is her department taking to make sure that these vulnerable people do not get left high and dry again?
Baroness Hollis of Heigham: My Lords, there have been a few instances of the Post Office computers failing to deliver in August and December, and in the department, with a two-day delay over the bank holiday period. We have been investigating this, and the system was restored very quickly. I am not sure
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that the default rate in the computer systems either of the Post Office or of the department is out of line from all my experience and knowledge of what goes on in the private sector, which also has occasional periods when systems close down for two. three or four hours, as has been the case here.
Lord Skelmersdale: My Lords, the Comptroller and Auditor-General pointed out that the problem was not just fraud, it was also error. While noting that the overpayment of housing benefit has fallen from £750 million to £650 million over the past two years, can the noble Baroness tell me the administrative cost per pound paid to housing benefit claimants in 1996–97 compared with 2003–04?
Baroness Hollis of Heigham: No, My Lords, because housing benefit is paid out by local authorities, not by the DWP.
Baroness Gardner of Parkes: My Lords, is the noble Baroness aware that local authorities are paid by her department? There is extreme difficulty in local authorities, particularly where people come on and off benefit. If they go on receiving housing benefit smoothly for ever, that is no problem for the council. However, great difficulties are experienced by the council and even more so by the poor person who has perhaps been wise or foolish enough to take up employment on a short-term basis, and who then finds that it is almost impossible to get their benefit back. The council then blames them for not paying their rent. That is a major problem with a lot of local authorities.
Baroness Hollis of Heigham: My Lords, I accept that, and it is why we not only have the verification framework in place for local authorities to tackle the issue of fraud— which is important because there is probably twice as much fraud as error in the system— but we are seeking to disseminate best practice. In London, for example, Camden is regarded as implementing best practice in handling housing benefit. It is on top of it, and it works very fast. In other London boroughs in the East End, the wait has been something like 10 to 12 months before all of the complicated housing benefit claims have been processed.
Where you are dealing with, say, an authority in a rural county, where housing benefit is largely going to people in socially rented accommodation, who are pensioners whose circumstances do not change, it is fairly easy to handle housing benefit. If you are dealing with an inner-city borough, with young people in and out of the labour market and in and out of addresses, criss-crossing between boroughs and often staying at addresses for only six weeks at a time, it is difficult for anyone to produce an effective system.
The noble Baroness is right to push me on this. That is why we are introducing the housing benefit reform system on a pilot basis, in which there will be agreed housing benefit by income for size of family. You will know in advance what you will get, and it will be much

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easier to award and police. We hope that if this is successful, as it seems to be, we will be able to roll it out nationwide.

Gambling Bill
Brought from the Commons; read a first time, and ordered to be printed.

Charities Bill [H.L.]
Lord Bassam of Brighton: My Lords, I beg to move the Motion standing in the name of my noble friend Lady Scotland of Asthal on the Order Paper.
Moved, That it be an instruction to the Grand Committee to which the Charities Bill [HL] has been committed that they consider the Bill in the following order:

Clauses 1 to 6,

Schedules 1 and 2,

Clauses 7 and 8,

Schedules 3 and 4,

Clauses 9 to 12,

Schedule 5,

Clauses 13 to 32,

Schedule 6,

Clauses 33 to 69,

Schedules 7 to 9,

Clauses 70 to 72.—(Lord Bassam of Brighton.)

On Question, Motion agreed to

Mental Capacity Bill
3.8 p.m.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): 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.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [The principles]:
Lord Brennan moved Amendment No. 1:
Page 1, line 11, at end insert—
"but any decision, whether unwise or not, is inapplicable and invalid if it is—

(a) wholly irrational in the opinion of the medical practitioner responsible for the treatment, or any other decision maker including a court;

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(b) in all the circumstances against the public interest, namely—

(i) to preserve life;

(ii) to prevent suicide;

(iii) to protect the integrity of the medical and nursing professions; and

(iv) to protect innocent third parties."

The noble Lord said: Some Members of the Committee will find this group of amendments of considerable importance. I commend the Government on the consultation and care that they have exercised in listening to all the different views expressed about this important and serious piece of legislation. In particular, my noble friend Lady Ashton has been assiduous in ensuring that she not only listened to what Members of the House had to say, but wrote to us individually, that we should know her thinking on the part of the Government. At Second Reading, I invited your Lordships to conclude that this was the kind of Bill that would most benefit from reasoned debate in Committee and on Report, because its substance is so important to the fabric of a civilised and moral society.
I propose to speak to Amendments Nos. 1,16 and 19. They are generally related, in that they go to the question of the philosophical foundation of this legislation. I start with Amendment No. 1. Unusually for a piece of legislation, the Bill sets out principles in Clause 1. Those principles reflect not legalistic conclusions but sentiments thought best to express the way in which our society views mental capacity, mental incapacity and the very grave decisions that fall to be made when someone becomes incapable of dealing with their own affairs or health.
Amendment No. 1 adds words to Clause 1(4), which presently reads:
"A person is not to be treated as unable to make a decision merely because he makes an unwise decision".
The reasoning behind that is straightforward. Amendment No. 1 seeks to introduce for the Committee's consideration matters which any expression of common sense—any sentiment of the best interests and common good of a society—would want in the Bill. It therefore adds,
"but any decision, whether unwise or not, is inapplicable and invalid if it is … wholly irrational in the opinion of the",
treating doctor or the person or court, who has to make a decision based on a sentiment expressed by the person years before or in an advance decision. Such a decision should not apply if it is "wholly irrational".
It seems difficult to conceive of how society can responsibly accept the implementation by a doctor or a court of a decision that was properly so described. In administrative law by way of analogy, the courts refused to apply government subsidiary legislation that was wholly irrational, defined as involving legislation or a decision which no reasonable person could ever have reached. My amendment is not from some rarefied source, but from the thinking that exists

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at present about the proper way in which society should work; namely, that it should not be saddled with the consequences of wholly irrational decisions.
The question that arises in that context is whether personal autonomy should apply, even if that autonomy has been expressed wholly irrationally.
Lord Goodhart: Does the noble Lord recognise that his amendment would extend to preventing a Jehovah's Witness refusing a blood transfusion that would save his life? That would surely be an irrational decision, but the amendment would prevent it being a valid decision. Does the noble Lord accept that consequence?
Lord Brennan: No, I do not, which is why I suggest "wholly irrational"—inconceivable to everyone else in the community. Experience and time has led to the acceptance of the beliefs of Jehovah's Witnesses by courts. I am talking about the wholly irrational.
Where the autonomy that we speak of consists of little more than a bald assertion that a person's choice merits respect because it is his choice, whatever it may be, I question the logic, justice and sense of such a proposition. A choice wholly irrationally expressed cannot be in the interests of the person making it, nor of the society required to implement it.
I pass on from that admittedly philosophical concept to the practical consequences in proposed new paragraph (b) in the amendment. Any society concerned with the exercise of personal autonomy which may involve a decision that might result in the end of life is entitled to consider how that decision affects the community in which the person making it lives. I have isolated four considerations that figure in many American cases decided on the interpretation of legislation in that country involving advance decisions, the matters with which we are concerned.
3.15 p.m.
The first is whether the decision should be valid— whether the historical statement should be regarded as binding—if it is inimical to the state's desire "to preserve life". Let us suppose that a proudly presented exposition states that if you contract condition X, you will suffer terrible pain in your closing time before death, but it is wholly unsubstantiated and untrue. Would we accept that a decision made on such a basis should be applied, to result in the termination of life? If so, on what sensible basis do we do so?
Next is the prevention of suicide. My example is about a cult; we remember that terrible case in Guyana a few years ago. Let us suppose that cult members were told that, by a given date, they would face Armageddon or had to commit suicide, and they chose to commit suicide by dint of advance decisions, astutely framed to avoid suspicion but with society knowing what they were up to. Are we supposed to allow that to happen? Is personal autonomy absolute?
The third consideration is very important. If a doctor exercising his or her interpretation of the Hippocratic oath, the Helsinki Declaration or another statement of
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medical ethics feels that what he is asked to do is totally contrary to his medical ethics, should he be required to do it? A conscience clause may except him, if we accept a conscience clause in the Bill. We heard the other day the comment, if accurately reported, of the noble Baroness, Lady Warnock, that we should not be saddled or restrained by the scruples of doctors. Scruples? I thought that they were exercising ethics in the public interest in pursuing the Hippocratic oath. If they want so to treat and the patient's instruction is completely contrary to that, is that in the interests of society? Does that not risk the destruction of trust between patient and doctor overall?
The last consideration is the protection of innocent third parties. I refer, for example, to a mother who in distress makes an advance decision and states that, "In certain conditions, I don't want treatment". She has young children. The doctors are convinced that despite the advance decision she could be saved and the children looked after. Where does personal autonomy dictate that the decision should be made? So, there cannot be an absolute of personal autonomy. In some way our thinking and this Bill must seek to reflect that, otherwise we are allowing personal choice to prevail over the interests of the common good.
I turn to Amendment No. 16, which I shall deal with briefly. The amendment has a typographical error in the penultimate line. The word "not" should be deleted.
Lord Campbell of Alloway: I am obliged to the noble Lord for giving way. I have listened with great attention and wonder whether he can help. What is the reasoned approach to the distinction between what is irrational and wholly irrational?
Lord Brennan: "Irrational" may be unwise; "wholly irrational" is inconceivable in terms of giving it effect. You would not accept it in your own family or community. Why should the state accept it as a right of citizens? There is a plain difference. The word "wholly" is used clearly and has force.
I turn to Amendment No. 16. As I said, the word "not" should be deleted otherwise there is a double negative. The purpose of the amendment is to produce the following considerations. We are concerned with the implementation of advance decisions or comments made in the past to which effect may be given by a court. What attention is to be paid to the circumstances from which such comments or decisions are made? I give two examples.
I am told by a medical friend that each year over 80,000, and possibly as many as 100,000, cases of self-harm, drug overdose or attempted suicide occur in this country. The vast majority involve no intention that death should occur; they are attention-seeking calls for help. But those people are often living in a state of distress, sometimes permanently. They are just the kind of people who would make advance decisions that might be thought to reflect their desire for self-help: "Look at my advance decision". Should we look at such an advance decision from a suicidal background? Is that a proper implementation of personal autonomy or is the doctor not to be allowed to look at it?

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Next, let us suppose that the background to the decision is influenced by a carer, the family, or whoever, for financial motives, and that what was said was unknown on the face of the advance decision or on the evidence before the court but by reasonable inquiry eventually emerges. Are those factors which may involve financial motives to be ignored and the will of the patient to be given free implementation by the court regardless? I ask the question rhetorically. Are these not very serious matters for us to consider?
The last amendment, Amendment No. 19, is simple. If I am wrong about the law I am ready to be corrected. If I am right—it may be that I am not—the following situation appears to prevail under the Bill. If you are under 18 years of age the Court of Protection will determine your best interests in terms of treatment; that is, what is too burdensome, whether it is futile or whether, in the case of children, it produces a life that is completely intolerable. However, when one reaches 18, Clause 4 of the Bill has a wide-ranging basis for determining best interests that do not include considerations of what is too burdensome, futile or intolerable. If I am right, I wonder how that is to work. A person of 17 years 11 months has the benefit of a stricter regime but at 18 years one month he moves into the context of the Bill. I hope that I am wrong and that the Minister will correct me. If she is unable to do so today or at some later stage, this is a very unusual state of affairs. Rights and choice should be applicable across the board without distinction.
Members of the Committee have been very patient. I shall now finish. I am happy to conclude by welcoming government Amendment No. 13. It reflects a considered response by the Government to the great concerns expressed that proxy decision-makers and medical staff should not be involved in circumstances which give effect to a suicide. That is a welcome step forward, for which the Government are to be commended. I hope that they will pay similar, kind attention to my Amendment No. 88, which requires the same consideration to be applied to the person himself not just to a proxy decision-maker or a doctor.
I thank noble Lords for their attention. These are serious matters. The amendments should not occupy our time by being dissected legally. I have raised issues for Members of the Committee to be conscious of when we consider the many complex and important provisions of the Bill. I beg to move.
Lord Alton of Liverpool: The list of amendments before the Committee is complex and, indeed, extensive. There are 10 amendments in this group, some of which cover ground which the noble Lord, Lord Brennan, touched upon, and other issues. However, he is right that these are crucial questions that cut to the heart of the Bill.
This has to be seen not only in the context of our Second Reading debate but also in the context of events outside this Chamber. Only yesterday, for instance, on the front page of the Daily Telegraph, there was coverage of events at Groningen hospital in
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the Netherlands. Doctors there have admitted that at least 22 new born babies have been put to death since 1997 based on the doctors' own reports to public prosecutors. That study was covered in the Dutch Journal of Medicine. It is said that the true number is likely to be far higher. The author of the report, Dr Eduard Verhagen, the head of the paediatrics unit at Groningen university hospital, said that doctors put to death between 10 and 15 infants a year. The report continues:
"No action was taken over any of the deaths, although euthanasia is technically legal in Holland only for patients aged over 12.
"The 22 babies listed in the study suffered from extreme spina bifida".
In a comment about that article in the leader the newspaper stated:
"We should talk about the subject [of euthanasia] in Britain— and quickly, before any legislation slips through Parliament legalising euthanasia by the back door, as it nearly did when the Mental Capacity Bill was debated by Parliament in December. This week, a House of Lords committee will discuss the Bill, which now comes with a hastily drafted government amendment that is supposed to prevent the killing of patients through neglect. But, by focusing on motivation rather than actions, the amendment further confuses the issue."
Those are the issues in this group of amendments. Before turning to my amendments, perhaps I may mention the press statement today by the Archbishop of Cardiff who has had discussions with the noble and learned Lord the Lord Chancellor. Participants in the Second Reading debate will recall the discussions. The Minister has been extremely helpful in trying to meet the concerns mentioned in the article to which I have just referred. The statement welcomes government Amendment No. 13, as did the noble Lord, Lord Brennan, and says that the new amendment,
"makes explicit that the Bill does not give authority to doctors, proxies or other third parties considering a patient's best interests to make any decision motivated by a desire to kill the person. In doing so it provides a welcome and necessary safeguard but with the important caveat, however, that it does not cover advance decisions".
That remains an issue which is in contention in your Lordships' House and with representatives of many of the great faiths outside.
3.30 p.m.
The second of their concerns is the issue of suicidally motivated advance directives. The statement says:
"We believe an amendment is needed to send a clear signal that the Bill does not give validity to expressly suicidal advance decisions, and have proposed an amendment that we believe would not overburden doctors in these difficult cases".
The noble Lord, Lord Brennan, referred to that argument. I believe that Amendment No. 88 should commend itself to the Committee.
I was pleased by the positive tone of the statement issued by Archbishop Smith who said:
"I very much welcome the continuing dialogue in which many of us who have been concerned to ensure this important Bill carries the necessary safeguards have had with the government. I

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hope that the government will continue to reflect on the strong case for such an amendment, and that it will make its way into the Bill".
Discussions to bring that to fruition will continue between now and Report. I hope that our discussion on these amendments will help to flesh out some of these important ethical questions.
The Bill rightly recognises in Clause 1(4) that a person is not to be treated as unable to make a decision merely because he makes an unwise decision. The issue of personal autonomy cuts to the heart of this question. However, decisions which are wholly irrational or against the public interest are a different matter. The Bill which seeks to safeguard the interest of the vulnerable, facilitate supported decision-making and provide greater reassurance to carers, should be clear about the types of decision that are invalid and inapplicable.
It may be argued that wholly irrational decisions or those against the public interest—the noble Lord described it as the common good—will almost always be invalid and inapplicable. I suspect from the discussion I was able to have with the Minister last week—I am grateful for the time she gave—that this view is reflected in her own thinking. Therefore, we should not have too far to travel to incorporate that view on to the face of the Bill. However, what about the rare situation where capacity is not in doubt? Must we as a society stand back and allow people to harm themselves and place their carers in an invidious position out of a misguided respect? Autonomous decision-making: I believe not.
Amendment No. 16 seeks to build on Amendment No. 1 and tease out what circumstances could exonerate a clinician or a carer who, although convinced of a person's capacity, remains unconvinced by the rationality or reasonableness of their decision.
Amendment No. 19 provides that where making a best interest determination on a person who has turned 18 years of age regard must be had to his principles of best interest that applied before his 18th birthday. Although the Minister will probably be able to answer fairly satisfactorily on the points that the noble Lord raised, I ask her to ensure continuity of care. For instance, someone prior to the age of 18 may have been able to access speech therapy or day-care centres. Just because he or she reaches the age of 18 that should not be withdrawn because we suddenly take a different view about his or her capacity.
Amendment No. 97 stands in the name of the noble Lord, Lord Brennan, and Amendment No. 99 in the name of my noble friend Lady Finlay of LlandafT. Both amendments are versions of new Clause 1 which was tabled in another place and seek to exclude from the Bill decisions with "the primary purpose" or "the sole purpose" of bringing about another's death. Such amendments, even though they would create no offence or civil wrong, would make it straightforwardly true that the Bill does not permit euthanasia—an objective which I believe we all share.
By conferring on proxies and on advance decisions of patients the statutory power to refuse treatment—in that sense making treatment statutorily unlawful in various
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circumstances—and by granting those proxies the right to make determinations about the patient's "best interest" by a new and highly subjective statutory approach, the Bill will have a profound and far-reaching effect on the context in which the existing law on homicide and suicide by omission will operate in practice. The weight of the legislation will favour both omitting treatment in a range of cases where hitherto it would have been omitted only if the patient refused consent, and in many cases ceasing to provide food and water in circumstances where but for the legislation such treatment and sustenance might well have been given. That being so, it seems quite unacceptable that existing legal ambiguities about omissions should be allowed to continue, let alone be extended in these ways; hence these suggested amendments.
I still have serious concerns about the provisions of the Bill regarding lasting powers of attorney. The attorney, assuming that he or she is given authority in the lasting power of attorney over life-sustaining treatment, can direct medical professionals not to treat a patient. The attorney's decision must be respected even though it is the patient not the attorney who stands to suffer from the decision. Of course, in theory medical professionals will be able to challenge the decision of an attorney that they believe to be questionable and/or contrary to the patient's best interest but how many medical professionals and NHS trusts will have the time, energy, motivation and money to ask a court to override an attorney, particularly when the attorney has statutory authority to direct medical professionals as though he or she were the patient?
I strongly welcomed Clause 58 at Second Reading. It is a declaratory provision. It is good that it is on the face of the Bill but I do not believe that it will solve the problem entirely. A doctor who withholds treatment simply because it has been forbidden by a statutory proxy's decision or by a statutorily valid and applicable advance decision will not be acting unlawfully under the rules preserved by Clause 58. Such a doctor's intent will simply be to comply with his or her legal duty and the conduct—a set of omissions—will not amount to the matter of an offence or to a civil wrong.
The noble Lord, Lord Filkin, dealt with the issue in the earlier passage of the Bill and confirmed in correspondence that,
"if a proxy wanted to refuse consent to a treatment and the doctor thought that this was with the intention of murder or manslaughter then the doctor could continue to treat".
Why not make that crystal clear in the Bill by including an amendment along the lines suggested in these amendments?
I apologise to the Committee for the length of my contribution. Of the 10 amendments, three stand in my name and I have signed many of the others. Under Clause 1 (5), Amendment No. 11, all acts done or decisions made under the Bill for or on behalf of a person who lacks capacity will be required to be done or made "in his best interests". The Bill's explanation of "best interest" in Clause 4 makes no reference to the fact that persons, even when unconscious or mistaken about their interests, have an objective interest in their

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own life, health and well-being. Instead, Clause 4(1) states that in determining what is in a person's best interest,
"the person making the determination must consider all the relevant circumstances".
I appreciate that since the draft Bill was published the Government have introduced a great element of objectivity into the Bill's definition of "best interest". However, I remain perplexed as to why the Government have so far resisted this amendment which merely seeks to make it clear that when personal welfare decisions are made the patient's life and health must be considered along with—and not to trump—all the other factors set out in Clause 4.I refer the Minister to common law and the phrase "best interest" which means treatment given to save the patient's life or to improve or prevent deterioration in the patient's physical or mental health.
At present Clause 4(2) to (6) say that "in particular" there must be a consideration of a range of factors, all of which relate to predicted capacity or incapacity and participation in decision-making. They are,
"past and present wishes and feelings … beliefs and values that would be likely to influence",
his or her decision if he or she had capacity, and
"the other factors that he would be likely to consider if he were able to do so".
The views of interested persons on,
"what would be in the person's best interest and, in particular, as to the matters",
must also be mentioned.
Those matters to be considered "in particular" are still too subjective—desires, wishes, beliefs and values. Not enough emphasis is being placed on the real dignity and value of the person's existence, life, health and well-being. Disability rights groups are concerned about the Bill's definition of "best interests". I shall not read the long statement that I have from Disability Awareness in Action, but it very much supports the spirit of the amendment.
Finally, Amendment No. 197 concerns the withdrawal or withholding of treatment, the question of suicidal advance decisions and the right of conscience. The amendments must be seen alongside government Amendment No. 13. I am glad that the Government have accepted the deletion of the amendment, to which I referred at Second Reading, which had been incorporated following the intervention of the honourable Member for Knowsley North and Sefton East, George Howarth, in another place. I welcome that, but I also note that the Joint Committee on Human Rights, in its report published yesterday, said that we needed to draw the lines even more narrowly. I draw that matter to the attention of the Committee. The Joint Committee said:
"Proving the motive of a person making a best interests determination will in practice be extremely difficult, however, and we, therefore, regard the proposed amendment"—
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the Government's amendment—
"more as a declaratory statement about the intention behind the Bill for the avoidance of doubt, similar to clause 58, than as an additional substantive safeguard".
The report goes on to say:
"A further safeguard which could be added to the Bill in the light of a judgement in Burke would be an express provision that it is only in the best interests of a patient to withhold or withdraw life-sustaining treatment if it is intolerable for them to continue to receive treatment in order to sustain life".
There was much agreement at Second Reading on the issue of burdensome treatments. We should dispose of that once and for all. I do not think that anyone in the Committee is a vitalist and says that you should continue to keep people alive beyond a point where it is natural for them to die and to impose treatments that they would not wish to receive. That is clear. The Joint Committee continued:
"This would add a very real practical safeguard, making it less likely that the withdrawal or withholding of ANH will be judged to be in the best interests of anyone who is not in the very narrow category of cases in which such withholding or withdrawal would not be in breach of Article 3 ECHR (identified in Burke as those cases where the patient is dying and has slipped into a final coma and lost all awareness of what is happening). We recommend that consideration be given to bringing forward an amendment to this effect in the Lords".
My amendment helps to do that, although I am not precious about any of the words, and I recognise that we are at the exploratory stage of our proceedings. They are probing amendments, but we must meet the point raised yesterday by the Joint Committee.
If I were to say in a written advance decision that in such and such circumstances, "My wish is to commit suicide by being taken off my drugs, and I wish to be assisted to commit suicide in that way"—the Minister and I discussed this at our meeting last week, and it would be helpful to hear about it in Committee— would the Bill give full support to that advance decision and make a doctor guilty of battery if he did not comply, because he judged that the drugs were in a patient's best interests and was unwilling to aid and abet a suicide? Admitting that would be for Parliament to give strong backing to the movement for assisted suicide, so the problem could be addressed by an amendment to Clause 25 that stated that an advance decision was not applicable,
"if it is expressly motivated by a desire to be assisted to bring about P's death".
Amendments Nos. 88 and 197 do that, as does the later amendment, which is better, tabled by the noble Lord, Lord Brennan, and makes the same points more efficiently. The sentiments of those amendments should be incorporated.
We fully respect the autonomy to refuse treatment for any reason or none, but we must preserve the rights of doctors, nurses and society to be free from the scandalous burden of openly assisting suicide. The amendment would preserve the balance and discreteness that has marked the courts' position, but which the Bill does not safeguard.
The last amendment also contains a conscience clause. For example, there was a conscience clause in the Abortion Act 1967, whatever one's position on

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that. I was concerned to meet a consultant working in a London hospital—the Minister knows of the case, because I mentioned it to her last week—who told me that, if we did not include a conscience clause and tighten up the remaining points, he would seek work in Scotland, where different laws apply and there are greater safeguards. He did not feel that his integrity and position would be safeguarded under the Bill. None of us wishes to see people forced out of the medical profession because they were required to do things that were against their conscience. So, I plead with the Government that, whatever else happens in Committee and on Report, by the end something similar to that conscience provision will be incorporated.
3.45 p.m.
Lord Carter: I had the privilege of chairing the Joint Select Committee on the draft Mental Incapacity Bill, and I was pleased that the Government accepted the great majority of our recommendations and the recommendation to change the title to the Mental Capacity Bill.
Perhaps I may remind your Lordships of the recommendation that we made regarding euthanasia. We stated:
"Many of the fears which have been raised with us about possible connections between the draft Bill and euthanasia appear to be misplaced. Nevertheless, in acknowledgement of the strength of feeling that clearly exists on this issue and in the hope that such misplaced fears do not detract attention from the many worthwhile aspects of the draft Bill, we recommend that additional assurance should be offered by the inclusion of a paragraph in the Statement of Principles we have recommended, or by an additional clause in the Bill, to make clear that nothing in the Bill permits euthanasia or alters the law relating to it".
I was delighted that the Government did that, and I remind the Committee that Clause 58 states:
"For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (c. 60) (assisting suicide)".
This is the matter that I find hardest to grasp in this argument, and I would be delighted to hear from my noble friend Lord Brennan when he winds up, and from my noble friend the Minister. Section 1 of the Suicide Act 1961 clearly states:
"The rule of law whereby it is a crime for a person to commit suicide, is hereby abrogated".
That is the first time in a long time that I have seen the word "abrogated" in a statute. It is clear that to attempt or to commit suicide is not an offence under law. But the crucial section is Section 2. It states:
"A person who aids, abets, counsels or procures the suicide of another, or attempt by another to commit suicide shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years".
It refers to a person who "aids" any attempt to commit suicide. Does "aid" include both the commission and the omission? That is the question on which this matter will turn—whether that section of the Suicide Act 1961 will cover the concerns expressed by my noble friend Lord Brennan.
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He referred to the "wholly irrational" decision. Does he regard an expression of advance decision expressly to assist suicide as "wholly irrational"?
Lord Brennan: It does not need to be considered, because it is completely illegal under Section 2 of the Suicide Act—but if it were attempted, it would also be wholly irrational.
Lord Carter: I just wonder whether the noble Lord, as a Roman Catholic—as am I—means that it is "wholly immoral" or "wholly irrational", because we have a view about suicide There is no need for him to intervene again, but this is our difficulty. When I read the Suicide Act, I thought that, in the case of an advance decision to commit suicide, such as that in the example given by the noble Lord, Lord Alton—I am sure that it was hypothetical—no doctor could ever execute that, because he could pray in aid Section 2 of the Suicide Act. That is the crucial point. Does that Act cover that argument?
Regarding the other argument mentioned by my noble friend Lord Brennan, about personal autonomy, there was a judgment given in, I think, the Bland case, by one of the Law Lords that sanctity of life must take second place to personal autonomy. I suspect that that is what this debate is about.
The Lord Bishop of St Albans: The noble Lord, Lord Brennan, rightly concluded his powerful speech by referring to this subject as being "serious". I concur with that. I fully understand the philosophical concerns that underlie the first amendment in particular. It is trying to bring to our attention the necessity to keep a righteous and appropriate balance between the exercise of personal autonomy and the public good. From a philosophical perspective, we are now dealing with what the late Isaiah Berlin used to term "incommensurables"—by which he meant a clash not between right and wrong or good and evil but between two competing goods. I find the concept of incommensurables enormously helpful. In a situation where we have a clash between two apparent goods, how do we decide what to do? I entirely agree with the noble Lord, Lord Brennan, that we try to deal with it by careful and reasoned debate. In this particular case, we must also look at the general thrust of what the Bill is trying to achieve.
My anxieties over Amendment No. 1 are threefold. First, it could undermine some of the significant moral principles on which the Bill is founded—principles which recognise that those suffering lack or loss of mental capacity have an especial moral right to be treated by society as having fundamental and inalienable human rights. Secondly, I suspect it would impose a considerable burden—perhaps even an intolerable one—on the medical profession, which would also defeat the entire purpose of the Bill, and might lead to a large number of contested decisions. Thirdly, we are all aware that tests in our courts of what is or is not in the public interest have generally been found by those courts not to override a patient's right to refuse treatment. I believe this amendment would shift the law markedly away from the important

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principle of patient autonomy. I underline and repeat that I fully recognise the underlying concerns, yet I also suspect that the amendment as it stands could so skew the thrust of this Bill that it would be unworkable. Given that this Bill has received such careful and thoughtful scrutiny over so many years, I do not think that this Chamber wants such a change at this stage.
Baroness Barker: I rise to speak to Amendment No. 17, which is in the group. I have listened with great care and attention to all four preceding speeches, which precisely encapsulated the detailed arguments considered by the Joint Committee. Having listened to a wide range of advice—including that from faith groups—the Joint Committee concluded, for the reasons so eloquently set out by the noble Lord, Lord Carter, that the Bill did not encourage euthanasia by the back door, and that it should be based on the practical implementation of some very deeply held principles.
I was interested when the noble Lord, Lord Alton of Liverpool, talked about Scotland because this section of the Bill in particular was shaped and influenced by the experience of people in Scotland responsible for the drawing up and enactment of the Adults with Incapacity (Scotland) Act 2000. I do not believe that that Bill, any more than this, was motivated by a desire to bring about the sorts of scenario that have been alluded to. As a member of the Joint Committee I take grave offence at some of the implications made in the press—not only for my own sake, but also for people such as the noble Lord, Lord Carter, who we know is a man of great faith. Conducting the debate in that manner does not help us.
I share many of the concerns raised by the noble Lords, Lord Brennan and Lord Alton. I am deeply concerned about issues such as undue influence, and they will see, having studied the list of amendments before us, that we have sought to address the very real concerns about the matter. However, our starting point is different. The noble Lord, Lord Brennan, talked at one point about there being no absolutes. For me, and for those I have followed in my thinking about the Bill, perhaps the paramount principle is that people must be treated as individuals. That is key to everything that flows out of this. We need to set a legislative framework in which people are never treated as a class in terms of their human rights or in their care and treatment. For me, the importance of the Bill is that it treats adults who lack capacity as individuals, and from that flows everything else. Every decision taken under the Act has to be an individual decision in relation to one person, and it has to be based on those principles.
I therefore find myself in disagreement with the noble Lord, Lord Brennan. I listened with great care to what he said about acts being wholly irrational. Would that those people who have capacity were subject to a law that demanded of them, and those round them,
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that their decisions always be rational. They are not. I take to heart what the right reverend Prelate the Bishop of St Albans said because this is not just a Bill about life, it is about living. It is a Bill about the way in which people who lack capacity live their lives as members of society, and about how society treats them with dignity. Therefore, although one would not have assumed so from the opening of our debate, it covers all of life in its glory and, sometimes, in its basic, day-to-day operation.
That is why we are right to follow the example of those people in Scotland who first looked at having a Bill that was based not just on principle, but on those principles. The right to make unwise decisions should be afforded to people who lack capacity, because it is a right that those of us who do have capacity exercise every day—although not to the degree of severity that has been talked about already.
I turn briefly to my Amendment No. 17, which is about the need for somebody who makes a decision on behalf of someone who lacks capacity to demonstrate that it is in his best interests. The Joint Committee spent a great deal of time talking about best interests. We were blessed with several members who were lawyers and we talked a great deal about evidence. How does someone who makes a decision on behalf of another person show that that decision is in that other person's best interests? Decisions may not be straightforward. Decisions which are in someone else's best interests may be extremely complex.
4 p.m.
I thought about requiring people who make decisions to produce evidence, but immediately it was argued, "We don't want people making day-to-day decisions for someone to be liable to have to demonstrate that in front of a court". I came up with a phraseology to highlight one point. When describing their lives and the lives of those they look after, carers—particularly those caring for people who lack capacity—demonstrate throughout why they do what they do. Carers are always explaining to other people what they do, especially in terms of treatment but also on mundane questions of why they chose to buy particular clothes for someone who lacks capacity. It reflects best practice.
I suspect that when we discuss the matter the Minister might be tempted to argue that there may be a burden on carers to have to demonstrate that their decisions were in someone's best interests. But I do not believe that it would be a burden. I believe that many carers would find the requirement useful. A requirement on the face of the Bill to demonstrate an activity enables them, when they come into contact with care providers, to have ready at hand the reasons why they take decisions and to have them taken into account. Many carers would find that extremely valuable.
I suspect that the amendment is not elegant and it may be rejected for technical reasons. But even for serious decisions, such as in cases of terminal treatment, I remain of the view that in this framework Bill it is good to require of decision-makers that they

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demonstrate in whatever way and at whatever level required why they believe something is in the person's best interests. Therefore, I hope that the Minister will consider the amendment.
Lord Patten: I support Amendments Nos. 11,97 and 99 standing in the name of the noble Lord, Lord Alton. However, I want, first, to congratulate the Minister on what I understand to be exemplary consultation and discussion on these issues. The circulation of papers at the earliest stage consistent with the speedy timetable of this House is very different from the unfortunate scenes in the other place, about which I read, during the dying days of discussion on the Bill there. Archbishops" letters were fluttering like confetti down the green Benches and Members were holding them up saying, "I have a letter here and it is all going to be all right. It will be sorted out in the Lords". We are beginning to see that today.
That scene led to the most withering put-down of any government Minister in another place by Sir Gerald Kaufman on his own side, but my natural delicacy prevents me from repeating those words. Therefore, may this careful consideration continue in a timely way in order to engage everyone and give them enough time to consider these points.
In relation to government Amendment No. 13, we have another archbishop's letter, which is extremely important. I am sure that the Minister, who can only just have seen it, will consider carefully what Archbishop Peter Smith says when he writes:
"The concern on which we have focussed in our most recent discussions with the Lord Chancellor relates to valid written advance decisions by persons who are not dying but who want to kill themselves. Faced with an unconscious suicidal patent whose life they could save, doctors might be forced to do nothing because of the legally binding advance decision forbidding them to treat. They are then having to stand by and effectively assist a suicide when they could stop it succeeding. We believe that an amendment is needed to send a clear signal that the Bill does not give validity to expressly suicidal advance decisions".
The archbishop appears to have parked his tanks on the noble Baroness's lawn. In the need for amendment to the Bill, and after due consideration and toing and froing, I hope that that will be brought about. However, the Minister may want to remember that, ultimately, it is not archbishops and external pressure groups who decide the fate of Bills—it is your Lordships in this Chamber. I remember clearly when a deal was made between Church and state, in this case the Roman Catholic Church and the state, on the "quickie divorce" legislation. A deal had been made between my noble and learned friend the then Lord Chancellor, the Roman Catholic Church in the shape of a bishop and the late Duke of Norfolk that the legislation was fine, entirely consistent and should continue. It was thought that it would be plain sailing but it turned out not to be the case at all.
The noble Lords, Lord Alton and Lord Carter, and others will remember how the Bill was changed radically in this place and in another place. Indeed, soon after this Government came to power, in their wisdom they saw fit to consign the Act to the legislative
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dustbin. Therefore, what matter most are the discussions in your Lordships' Committee and at later stages.
Those friendly warnings having been made, I want to turn to Amendment No. 11 to Clause 4 in the name of the noble Lord, Lord Alton. I strongly support what he says because the Government have held that medical professions will continue to use the traditional concept of best interest, which includes the patient's interests in life and health, as central to his or her welfare.
However, I wonder whether it is really reasonable to suppose that professional attitudes will not be affected by the deliberately subjective interpretation of "best interests" which characterises the Bill. For example, does the use in Clause 4(1) of the word "circumstance" securely imply a reference to the person's intrinsic interest in health and life? How many doctors will have the time, the energy and the motivation, let alone the resources allowed them by their local health authority or whatever, to ask a court to override a proxy whose determination of best interests appears to that doctor to be questionable or defective? And of course, there is the issue of time passing while legal process unwinds.
Therefore, in the absence of Amendment No. 11, there is a real risk that the objective interest of vulnerable patients may be submerged by the wishes now given statutory force by the Bill of persons who could well have a conflict of interest with the patient; or by the wishes, concerns and feelings of a patient that may now acquire statutory force, despite having been unduly narrowed or deflected by inclinations; or by external pressures towards self-destruction, lack of self-respect; or any of the other dozens of reasons that can be adduced.
I shall pose the first of two questions which I hope the Minister will seek to answer today. How can it be right to leave such important elements of the Bill's central concept to be dealt with in a code of practice? I do not believe that it is right to leave these matters to be dealt with in codes of practice. Such matters should be specified on the face of the Bill, so that when it becomes an Act it is of absolute clarity. Will the Minister respond on that point?
Lastly, I turn to Amendments Nos. 97 and 99. The Bill would remove responsibility and, therefore, liability from doctors to act in the best interests of incapable patients, without placing any duties of care on the replacement decision-makers. Thus, when an attorney is appointed, no one bears ultimate responsibility for a decision that may be clinically negligent or perverse. The incapacitated adult would have no legal remedy for such certain abuses of power, as they seem to me, even if he indicated that he wished for nutrition or water.
Although I greatly respect the work that has been done prior to the Bill reaching this stage, that is why I am not sure that I am convinced by the argument of the right reverend Prelate the Bishop of St Albans that because learned men and women have discussed this over many years and have come to this or that judgment, that judgment does not need the further refinement of your Lordships' House in Committee. After all, that is what we are here for.

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Clause 58 does not, by itself, solve the problem. The noble Lord, Lord Alton, has already told the House that the noble Lord, Lord Filkin—I pay tribute to the Minister for what he did in your Lordships' House in this regard—confirmed in correspondence:
"If a proxy wanted to refuse consent to a treatment and the doctor thought that this was with the intention of murder or manslaughter then the doctor could continue to treat".
If that is what the Minister, in his previous ministerial incarnation, said—and I guess from the way that the noble Baroness is nodding her head that she is indicating assent with what her noble friend said— then why not make it crystal clear in the Bill by including an amendment along the lines that are suggested in these amendments?
I am never quite sure that the full weight of Hansard is taken into account in courts of law in this country and whether the fact that a Minister has said something outside the Chamber that has been read into the record of Hansard can be taken into account by the courts. We rely on the good will of the noble Lord, Lord Filkin, and the good will and the integrity of the Minister. But that may not be enough in future years. I believe that there should be an amendment turning the already elegant, crisp and clear words of the noble Lord, Lord Filkin, into law. They should be on the face of the Bill. The amendment proposed would also send a most desirable message to all concerned that certain intentions have no place in healthcare or in the Bill, just as they have no place in any other part of life.
In conclusion, the Government's good intentions are not what matters about the Bill. I do not doubt the Government's good intentions or the good intentions of those bodies that are interested, the Making Decisions Alliance or whoever. What matters is how health professionals interpret what the law says while they are taking their sometimes agonisingly difficult decisions and, later on, how the courts will interpret the end result. As currently drafted, the Bill will allow the withholding and withdrawing of assisted feeding and hydration from incapacitated patients where health professionals and proxy decision-makers consider their lives to be futile. Rather than the question being, "Is this treatment worth while?" it becomes, "Is the patient's life worth while?". That, to me, is the critical point.
4.15 p.m.
Lord Habgood: I speak as a relic of the 1994 committee that put forward the idea of having advance directives. As I listen to the debate and read amendments still to come, I get the feeling that we are becoming increasingly mired in incredible complexity.
The 1994 committee suggested that advance directives should be not legally binding but advisory only. The committee suggested that for very good reasons. The first is the impossibility of expressing a will about what is entirely unexpected in advance and outside the particular circumstances with which one might be concerned. If one expresses a will in legal terms, it becomes even more
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complex. One may express broad intentions in the face of the unknown, but to try to put them into legal form is virtually impossible. That is partly because we do not know and partly because, by the time a document has been in operation for a few years, medicine has advanced and new treatments are possible. Nobody knows what is coming.
How many of the people who we want to help are actually going to draw up such a document in the legal terms that will be necessary? I suspect that very few will do so. A further reason for being doubtful about this whole exercise is that medicine is not an exact science. In the end, doctors are dependent on judgment in the light of knowledge that is, in a large majority of cases, only partial.
I know that it is rather late in the day to say so, but we could save ourselves an enormous amount of trouble if we dropped the legal status of advance directives and made them what we always intended them to be: a help to the medical profession in making an informed judgment about the best interests of patients. All our problems arise from the attempt to put in legal, watertight terms what is inherently incapable of being so expressed.
This raises the question of whether we can trust doctors. I suspect that this is part of the motive that underlies the attempt to wrap this up in legal terms. Obviously, we cannot trust some doctors. But if we cannot trust the majority of doctors, we are in a very poor way indeed. It seems to me that a simple way of ensuring that individual rogue doctors do not make irresponsible decisions is to say that decisions on these matters must be for the clinical team.
Lord Walton of Detchant: As my noble and right reverend friend Lord Habgood has said, I had the privilege of chairing the Select Committee on medical ethics that reported to the House in 1994. Virtually all the provisions and recommendations in the report of that committee were accepted by the House.
My noble and right reverend friend is absolutely right to make it clear that we recommended that the use of advance directives should become much more widespread and valid, but that they should not be legally binding. The problem is that, since that time, they have quite frequently become binding in common law because of a number of notable cases in which judges have concluded that an advance directive signed by an individual has the force of law.
My noble and right reverend friend is right to say that our concern was principally that an individual who signed an advance directive would, as the years went by, fail to update that directive. Therefore, he might not take account of major developments in medical sciences that, in the circumstances ultimately arising, would have made that advance directive inoperative or inappropriate.
At the end of Amendment No. 16, which is tabled by the noble Lord, Lord Brennan, and my noble friend Lord Alton of Liverpool, the suggestion is,
"that the decision could not reasonably be treated as binding, having regard to all the circumstances".

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Would that meet our concerns about changes in medicine, developments and practice that might make the directive no longer binding? That is a question which the Minister should answer.
There are two or three other things arising from the 1994 report of the Select Committee, which I chaired. First, the Bill enshrines the autonomy of the individual. Everyone recognises that it is entirely appropriate for any individual to refuse medical treatment having had all the circumstances and consequences explained, even if that refusal of treatment results in death. That was, and still is, accepted in law.
Secondly, in our report we recommended that there was no obligation on the healthcare team to continue with futile medical treatment that added nothing to the well-being of the person. Therefore, in relation to Amendments Nos. 97 and 99, I wonder whether it might be said that the continuation of futile treatment, such as even the giving of antibiotics towards the end of life, would be regarded as burdensome. I am somewhat concerned that the word "burdensome" tends to imply something that is disturbing or difficult to tolerate by the individual.
I am thinking of a deeply unconscious patient where, under all circumstances—for instance, an individual in a permanent vegetative state—we specify that the continuation of treatment that adds nothing to the well-being of the individual, as in the notable case of Tony Bland, need not be continued. I am concerned that that circumstance will properly be handled under this Bill. Those amendments might be open to misinterpretation in cases of that nature.
Lord Christopher: I have tried to speak three times. First, I endorse fully the comments of my noble friend Lord Brennan about the way in which the Bill has been handled thus far by our Front Bench. It is an example of how good work can be done. I thank the Minister very much.
At Second Reading, I said that there is a lack of protection beyond the considerations of life and death in the Bill. I think that that is not an accident, but I understand wholly why almost all of the debate in another place and much of our debate at Second Reading and here today has been about life and death, which is quite right.
But there is another aspect that I want to ensure is adequately dealt with in "The principles". The preamble to the Bill, if that is the correct term, states that this is a,
"new provision relating to persons who lack capacity".
I repeat—"persons who lack capacity". However, under Clause 1(2) a person has to have an "established" lack of capacity. There is a considerable distinction between the two.
I have a modest file of examples of cases of financial abuse—the Master of the Court of Protection made much of them when he gave his evidence—involving persons who certainly had not had their lack of capacity established. The number of persons involved is likely to grow. Over the next 10,20 to 25 years, there will be a generation of people dying who, for the first
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time in our history, will have significant wealth in their property. That is a major change to which we have not given enough attention in a number of ways.
I am advised that the majority of the cases that have found their way to the Court of Protection involve mainly elderly women who are either single or widowed. For a variety of reasons that Members of the Committee will be able to imagine, they are very vulnerable to some form of abuse in that regard.
I will not go into great detail of the case with which I have most experience, but it involved an elderly woman where lack of capacity was not recognised by three general practitioners—another subject that I am sure will be taken up by the department with the medical training people. Where the Bill states that capacity is to be established, I ask, by whom, when and how? Currently, as far as I can see, there is no provision for even warning signals to be given to anyone.
The Master of the Court of Protection, Denzil Lush, made some comments when he gave his evidence regarding the content of Clause 1(4), which states:
"A person is not to be treated as unable to make a decision merely because he makes an unwise decision".
If "an" is a principal word in this principle, I am happy. But what about a succession of unwise decisions, which we illustrated? For example, the elderly woman to whom I referred was reduced from being fairly wealthy to not only having no money at all, but also being £100,000 in debt.
My only practical proposal—my noble friend the Minister is aware of it—is that there should be a proper provision for those who are uneasy about what is happening in such a case to make their unease known either to the new guardianship or the new Court of Protection. I understand that that might be encouraged.
Turning now to Amendment No. 1 in the name of my noble friend Lord Brennan, does paragraph (b)(iv), which says,
"to protect innocent third parties",
apply to solicitors, accountants, brokers or anyone else in the financial services field who has a concern about what is happening in a case that they know well? In my case, I have a list, which includes three firms of solicitors, a firm of accountants and others, all of whom were uneasy, believed that what was happening was wrong—it certainly did not look right—but did not know what to do.
Those people will certainly need protection. For example, if a solicitor is to write to the Court of Protection stating, "In my opinion, this case needs some exploration", he will want to be sure that he is not going to open himself to liability under confidentiality to the client. A number of noble Lords will recall the hoo-ha from the Law Society about the proposed requirement that it inform the Treasury or the Revenue about tax avoidance arrangements concerning clients.
Paragraph (a) of Amendment No. 1 refers to "wholly irrational", which it certainly was in the case that I know about, and,
"the opinion of the medical practitioner".

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Who else might be concerned in that area in order to form an opinion? Talking about principles does not refer exclusively to medical issues, life or death. It is about the wherewithal for people to have a sensibly and honourably regulated life. Certainly, unless there are other circumstances intervening, public interest gets involved because people become the financial responsibility of the state.
4.30 p.m.
Baroness Finlay of Llandaff: Many points have been made, and I do not want to take up much time repeating them. The Bill tries to encapsulate good decision-making to enhance the dignity of the individual. I feel much more comfortable with government Amendment No. 13, which changes the wording in the Bill, because I believe—I hope that every lawyer will agree—that it means that doctors cannot be asked to kill a patient. They cannot make the judgment that a person would be better off dead and go about ending that person's life. That has been my motivation and that of others who have tabled amendments.
I would like to speak briefly to Amendment No. 11 because it is about motivation. The motivation for tabling it was so that the default position would be towards life. Clinical decisions are complex and are not made at a single point in time. My worry about our discussion so far is that it sounds as though a decision is made and that is it. However, in a clinical scenario the patient is changing all the time: they unexpectedly get better or worse.
There are patients who decline all treatment, which may at first seem unwise. It might seem extremely unwise, but they could be proven right because they do remarkably well. Sadly, some patients whom we treat do remarkably badly, and I honestly believe that their lives have been foreshortened by our best efforts because they get infections and so on, although infections are not caught through bad care—it can still happen through the best of care.
We are trying to ensure that the best clinical practice is brought in through the legislation and that bad clinical practice cannot continue so that we strengthen the way in which decisions are made. However, it is worth remembering two situations. First, research was carried out on patients who had spinal injuries. Of 25 patients, 23 said that they were glad in retrospect that they were resuscitated and treated. However, I know as someone who treats medical students that if we took 25 medical students they would say, "If I got a massive spinal injury I think I might be better off dead".
We have to remember that the view of the person when they are in a situation is often different to the way they perceive it before they find themselves in that situation. Human beings have a phenomenal capacity to adapt, and I am amazed at what people adapt to. Day after day, I stand in awe of my patients, as they adapt to situations that they have said they thought would have been intolerable. That is why we need a default position towards life.
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Secondly, will the Minister clarify the emergency situation? I am particularly worried about obstetrics. What would be the position for a woman who has been adamant for a long time that she did not want a Caesarean section and has had that clearly documented, written down and discussed, in the rare event that she had a rupturing uterus and every other intervention to extract the foetus had been tried? What will be the position of the obstetrician who today would phone up the duty court at the time and obtain an instant ruling and would be able to operate and save that woman's life?
I do not know of a study that has carried out a retrospective look at all the cases. In all the anecdotal cases of which I know, once the woman has recovered after about 48 hours she is glad to be alive not dead. Her mind may have been so disturbed in the state of advanced labour, when things were going wrong, that she was unable to make a decision.
The other issue we need to remember is the way that relatives view matters. When they are sitting by the bed of someone they love, particularly in a sudden unexpected tragedy such as a road accident, their thinking can become distorted and difficult. That is another reason why, in the amendment to which I put my name, the default position towards life would seem the safest way to go.
The Lord Bishop of Oxford: I would like some clarification on the Government's Amendment No. 13; in particular, what is meant by the person making the determination not being motivated,
"by a desire to bring about his death".
Can we have an example of the evidence that might count as substantiating that charge, if it was brought, or that might show it to be unfounded? I am not a lawyer and therefore I do not know how "motivated" might be interpreted in legal terms, but from the standpoint of Christian moral theology—the great body of moral theology shared by the Roman Catholic Church and the Anglican Church—I would want to make a distinction between "motive", "intention", and, "unintended but foreseen consequences".
If we take the withdrawal of artificial hydration and nutrition in the case of a patient experiencing burdensome treatment, we can foresee that such a withdrawal will lead to their death. But the intention, understood as the main thrust of the action, is simply to withdraw burdensome treatment that has proved futile. That is a difficult enough distinction to make, between what is directly intended and what is unintended but foreseen: but when we bring in motive, which is a concept that goes on entirely in the mind, it will be very difficult for the courts to adjudicate on situations where a case might be brought.
I am particularly concerned about doctors who make a proper professional judgment about the withdrawal of artificial hydration and nutrition in the

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case of a patient who is experiencing burdensome treatment that is futile. I want to be sure that, if such doctors were brought to court, they would have a sure defence and that they could not be captured by the clause.
Lord Mayhew of Twysden: I would like to deal with the amendments in the name of the noble Lord, Lord Brennan. The concept of irrationality is an unsafe criterion for the jurisdiction with which the clause deals. With respect, the noble Lord, Lord Goodhart, was right when he put to the noble Lord, Lord Brennan, the illustration of the Jehovah's Witness whose decision not to take a blood transfusion would be caught by his amendment.
The principle embraced in Clause 1(2) is admirable:
"A person must be assumed to have capacity unless it is established that he lacks capacity".
Clause 1(4) states that he,
"is not to be treated as unable to make a decision merely because he makes an unwise decision".
In the Explanatory Notes, we read that it is the Government's intention and the Bill's effect that someone should be able to make an irrational decision if he wants to. I stand by that, but it is unsafe to give that discretion to anyone, whether it is the doctor in charge of the treatment or, as Amendment No. 1 states, "any other decision maker"—whoever that might be.
It is a heavy, highly invasive and unsafe responsibility because we are not able to pry into the mind of the decision-maker at the time when he took the decision or indeed at any other time. We cannot determine whether there was a reason that seemed to him to be a good or sufficient reason, or whether it was simply a capricious twitch of his mind. We are not able to do that. I believe, therefore, that to import into the Bill—by way of pulling back from the principle that I have already read—the concept of irrationality is very dangerous. The danger is that an objective principle will be applied to what is essentially a subjective, individual and personal decision.
As to the point made by the noble Lord, Lord Goodhart, if a decision derives partly from something that is perhaps irrational and partly from something of which that cannot be said, it cannot be said to be an irrational decision. The noble Lord, Lord Brennan, said "That is why I have used the word 'wholly'"—"wholly irrational"—but something cannot be described as irrational if it is comprised in part of a sound, proper or valid reason. You do not add anything by importing the word "wholly". Something is either irrational or it is not irrational; calling it "wholly" irrational adds nothing. Therefore, I am afraid, the Jehovah's Witness would be caught.
Lord Turnberg: I should like to comment briefly on Amendment No. 1, which stands in the name of my noble friend Lord Brennan and which deals with the principles of the Bill. It is here described what is meant by a person lacking capacity and points out that a person who makes a wholly irrational decision would not be considered by the Act.
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People who have capacity, I am afraid, often make wholly irrational decisions. When they conflict with society, we have a variety of laws to deal with them— to a variable extent, I have to say, but they are there. A circumstance in which the amendment might become relevant is if a wholly irrational advance directive is made. As and when the person who made the irrational decision—a person who was originally not lacking in capacity—comes to lack capacity, there is an issue whether the decision was wholly irrational at the time.
I am all in favour of the idea of principled autonomy as against absolute personal autonomy, but I foresee problems with the amendment. I agree entirely with the noble and learned Lord, Lord Mayhew, about the judgment that has to be made about "wholly irrational". It is to be decided by the medical practitioner responsible for the treatment or any other decision-maker, including the court. That of course puts an enormous burden on those people and becomes problematic immediately because at least some of them will judge something as "wholly irrational" where others would not.
There are then problems about whether one should go against an advance directive which suggests that the person making it wishes to not have his life continued by burdensome treatments at the end of his life. Would that be considered wholly irrational by some and not by others?
The whole area is far too difficult to put in the words of the amendment. I am much more in favour of government Amendment No. 13.
4.45 p.m.
Baroness Carnegy of Lour: I did not take part in the Second Reading debate but I have listened to the discussion today with enormous interest. I have been very impressed by the quality of thinking behind what all noble Lords have said.
I should like to say something very simple. I am not a professional in any of the fields that have been mentioned—indeed, I am not a professional at all— but, like so many noble Lords, I have had experience of being in the situation we are talking about with a member of my own family and I cannot help being somewhat influenced by that.
I very much agreed with the noble and right reverend Lord, Lord Habgood, when he said, after a period of debate, that we seem to be becoming mired in complexity; that the whole discussion was becoming very complex and was apparently insoluble. We have to be careful about that. I rather longed for the clay when we might have gone back to an advance directive not being legally enforceable because that would solve many problems, but I suspect that we are past that stage.
The right reverend Prelate the Bishop of St Albans said what I would like to say, which is that Amendment No. 1 seems to, I think he said, "skew" the effect of the Bill too much from where it is after many years of public discussion and contemplation

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and of trying to find a way of getting close to the centre of the argument where consensus on a legal framework might be found.
I feel that Amendment No. 1 cannot be accepted. I look forward particularly to hearing what the Minister has to say about Amendment No. 13 in the light of the important questions asked by the right reverend Prelate the Bishop of Oxford.
Lord St John of Fawsley: I intervene briefly to support what the right reverend Prelate the Bishop of Oxford said. What he said in a few well chosen words goes right to the heart of the problem raised by the Bill. The government amendment introducing into the Bill the question of someone's motive is not a protection to anyone. You cannot establish at law a motive—it cannot be done—and there is a basic confusion behind the government amendment, and those who have argued for it, between motive and intention.
The intention of an act can be concluded objectively by looking at the act; a motive cannot. You may have any number of motives, but you can never prove what a motive is. I shall not use the stronger word, but it is a delusion to think that this is an effective protection of any of the purposes of the Bill. With all respect to the right reverend Prelate the Bishop of Oxford, the distinction between motive and intention was not first made by him; it was first made by Bentham some years ago.
I ask the Minister to address this problem fully and carefully when she comes to speak. If she cannot satisfy the Committee on this point, one can only conclude that the government amendment is wholly ineffective, is nugatory and will not bring about any of its promised consequences.
Earl Howe: I endorse everything that was said by the noble Baroness, Lady Barker, in relation to Amendment No. 17, to which my name has been added. I do not propose to comment to any great extent on the amendment of the noble Lord, Lord Brennan, except to say that I believe it is flawed in at least one sense in that it seems to countenance the idea of a wholly irrational yet wise decision. I find that a rather difficult concept to grasp, quite apart from the difficulties highlighted by my noble and learned friend Lord Mayhew, the noble Lord, Lord Turnberg, and others.
I should like to devote a moment or two to government Amendment No. 13, anticipating with other noble Lords what the Minister is going to tell us. I start by saying that the Committee will be extremely grateful to the Minister for bringing forward the amendment.
I think we all feel that we are now debating the single largest source of concern in the Bill. Because of that it is vitally important that Amendment No. 13 is 100 per cent fit for the purpose. I have been encouraged by what I have heard about the attitude of the Archbishop of Cardiff, but I would like to press the Minister on one or two points.
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Amendment No. 13 would result in the deletion of the current Clause 4(5). I am not sure that I am completely comfortable with that. Clause 4(5) is quite strong: it is a duty for a doctor to "begin by assuming" when deciding whether to continue life-sustaining treatment,
"that it will be in the person's interests for his life to continue".
That is surely a very important idea because it is like saying that before anyone even starts to embark on the decision-making process, the scales are weighted in favour of keeping a person alive. That built-in handicap against withdrawing or withholding treatment is not something that I see in Amendment No. 13 and I find that at least superficially troubling. We need to ask the Minister why that is.
Amendment No. 13 states that the person making the determination must not be motivated by a desire to bring about the person's death. I would like to follow the right reverend Prelate the Bishop of Oxford and my noble friend Lord St John of Fawsley by asking the Minister to be crystal clear about the legal meaning of the term "motivated". I am not a lawyer but I have always thought that guilt or innocence before the law in relation to any criminal offence, including murder, rested on the concept of mens rea, or, in English, the notion of intent. The motive that someone has when carrying out an act is strictly speaking neither here nor there in terms of the guilt or innocence of the person, other than as providing possible evidence of intent. My intention may be to kill someone by withholding treatment; my motive may be that I want to inherit the person's money.
A court might decide that what motivated someone to make a particular determination—let us say, to switch off a life-support machine from a patient—was that he wanted to relieve the patient's spouse of any further mental anguish, or that he wanted to free up the bed. The foreseeable consequence of turning off the machine was that the patient would die. The person did what he did intentionally, but he might not have particularly desired to see the patient die in order to achieve the end result that motivated him.
So we need to hear from the Minister whether a person who takes a particular course of action as a result of being motivated by a desire other than to kill, will in all circumstances be regarded by a court as having killed intentionally.
I ask one final question. Clause 4 sets out the makings of a process through which a carer or clinician, or whoever, will have to go in order to arrive at a judgment as to where a person's best interests lie. If necessary he will have to be able to show that he considered all the relevant parts of the best-interests test before taking a given course of action. That much is clear. What is not clear is whether he or she will also have to go through a separate process alongside that— if the Government's Amendment No. 13 is accepted— namely, assembling suitable evidence to demonstrate motive. One wonders what such evidence might consist of.
I hope that the Minister will say that there is no question of any separate process; rather that the process of determining best interests, and perhaps

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sharing the results of that process, will in itself provide all the evidence that a court will ever need about motive. In other words, if you can prove conclusively that the best-interests test has been met, you need not fear that a court will also ask you to prove to it what your motives were in taking the action that you did.
That may be an over-optimistic thought, but the point is quite important. The language of the amendment is one thing; what it means for people's understanding and practice day to day is another. Clearly the last thing that we should want to see emerging from the amendment is an obligation to obtain legal advice before any decision on behalf of a mentally incapacitated person is ever taken.
I hope that the Minister will be able to shed some unambiguous light on those issues.
Lord St John of Fawsley: I apologise to the House for intervening again, which I think I am entitled to do, but the point is of such crucial importance that it needs to be examined most carefully. I am extremely grateful to my noble friend who has just spoken forgiving such importance to this point and lending the weight of his very considerable authority to it.
Perhaps I may quote another authority, perhaps even greater, namely the point made by Stephen in his History of the Criminal Law, which is one of the classic works of our law. He states that,
"the common maxim which is sometimes stated as if it were a positive rule of law, that a man must be held to intend the natural consequences of his act, I do not think that the rule in question is really a rule of law further or otherwise than it is a rule of common sense".
He goes on:
"The only possible way of discovering a man's intention is by looking at what he actually did and by considering what must have appeared to him at the time the natural consequences of his conduct".
Motive does not come into that at all. If I may be allowed to make a second quote:
"'Motive' was distinguished … from 'intention', as the desire prompting an act, a state of mind which the law cannot take into account. The point will be made clearer by an example. X fires a gun and kills Y. His intention in firing the gun is to bring about the death of Y. His motive may be to inherit Y's fortune, marry Y's wife, or merely hatred of Y. Motive is thus the reason which leads X to form his intention of killing Y. Whether this motive is good or bad is irrelevant as far"—
I wish the Minister would give me the courtesy of listening to this point because it is crucial.
Baroness Ashton of Upholland: I am indeed listening to the noble Lord with great intent. The fact that I was not looking at the noble Lord does not mean that I was not listening.
Lord St John of Fawsley: I feel that I was justified in feeling that I was being deprived of the approving glances of the Minister, which up to that point I had been basking in. If I may continue:
"Whether this motive is good or bad is irrelevant as far as the law is concerned, although it may well be relevant for the moralist".
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Modesty forbids me to say where this quotation comes from, but to be totally honest with the House I confess that it comes from a book I wrote 50 years ago.
Baroness Ashton of Upholland: I apologise to the noble Lord if I failed to look at him with the appropriate glance, but I was indeed listening with great interest. I am sorry that he was modest in not telling us immediately about those words. I would be very grateful to borrow the book from the noble Lord at some point.
In speaking to the government amendments and in winding this debate I feel I must become a philosopher, a lawyer and a doctor in seeking to try to address all the points raised. It is important to begin by saying what my purpose is. It is as always for me important in Committee to have the opportunity to listen with great care, to respond where I can and to fulfil my commitment to consider what has been said. I will do that consistently throughout the Committee stage.
5 p.m.
I was grateful for the comments that have been made about the way in which we have sought to deal with the Bill in the House. I can promise that I will continue as I have begun. I completely accept what the noble Lord, Lord Patten, alluded to: Parliament is sovereign in the determination of the Bill. It is noble Lords who will make the decisions about what may or may not be sent back to another place.
I am none the less grateful for all the interventions I have been fortunate to receive from different individuals and organisations. They range from the Archbishop of Cardiff, who has been extremely helpful, to the 39 organisations that form the Making Decisions Alliance, through to many noble Lords, Members of another place, individuals and organisations, particularly the BMA, the GMC, the Royal College of Psychiatrists, hospital doctors I have had the good fortune to meet and many others. It is in that spirit that I stand before the Committee today.
We will consider carefully the report of the Joint Committee on Human Rights that we received yesterday. We are clear that doctors must assess the objective question of "best interests" when considering the options available, particularly life-sustaining treatment. We will consider whether there is yet more we can add to Clause 4, in addition to government Amendment No. 13, to address the points that have been raised by the committee. However, we have not yet had a chance to consider the report in detail. I also wished to make sure that we had the benefit of this debate today.
Before I begin to weave my way through this rather large group of amendments—with a wry hint, as I was hoping that someone would degroup it, but, sadly, members of the Committee liked it—I shall deal with the questions that have been raised as best I can. I am sure that the Committee will not let me forget anything.
For the benefit of noble Lords who were not present at Second Reading, I shall make two or three key points about the Bill. It is about empowerment and

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protection. It is about the individual. It is also about the loved ones—those who care for individuals who may and do lack capacity—and the professionals who operate with them. It is not about euthanasia or assisted suicide. That is clear in what is in the Bill; it is also clear if one reads and understands the spirit of the Bill and the way in which it has been framed. I am really sorry about some of the press reports that have maligned an incredibly important piece of legislation. I know that the Committee will see those reports in that light.
The Bill recognises the autonomous nature of human beings. It recognises that they can be unwise. It recognises that an advance decision, properly made, with all the safeguards that we have put in place—we will discuss those as the Bill proceeds through Committee—is a way of expressing that autonomy for people. If one knows that one is going to lose capacity directly, or if one recognises that one might lose capacity, an advance decision is, in a sense, a way of expressing personal autonomy. The critical factor for our professionals, especially our medical staff, is that, if there is any doubt whatever about the advance decision, they must err on the side of treatment and operate as good clinicians and physicians do. We have built in much better safeguards than currently exist in common law.
The entire Bill is framed around the question of "best interests", which is an objective, not a subjective, test. It is not about what you or I or we may think about somebody's life. It is objective particularly in the context of the treatment given to the individual. That goes some way to addressing the point raised by the noble Earl, Lord Howe.
In opening the debate today, my noble friend Lord Brennan, spoke to a range of amendments, which I shall summarise briefly. I understand the intention behind the amendments—to add more protection for vulnerable people, especially where end-of-life decisions are concerned. My noble friend was concerned in particular that the Bill would make suicidal decisions more likely to succeed, putting the medical profession and other third parties in an extremely difficult position.
The amendments seek clarity on whether the principle of "best interests" applies to advance decisions to refuse treatment. They look at how "best interests" might be applied to young adults, as opposed to children, in the transitional phase between 17 years 11 months and 18 years, to which the noble Lord, Lord Alton, referred.
Amendment No. 97 would make it clear that no decision could be made with the primary purpose of bringing about the death of the person concerned, unless it would cause the person harm or be unreasonably burdensome.
Together with the noble Baroness, Lady Finlay, the noble Lord, Lord Alton, wants to see an explicit reference to the consideration of a person's life and well-being when a determination about best interests is
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made. They would like a statement in the Bill that no decision is permitted where the sole purpose is to bring someone's life to an end.
The noble Baroness, Lady Barker, supported by the noble Earl, Lord Howe, put down an amendment which, although it would apply to every "best interests" decision under the Bill, is particularly relevant to the important debate on end-of-life decision-making. Specifically, they want to make it clear that not only must those determining best interests reasonably believe that they have acted in someone's best interests, they must be able to demonstrate it.
In response to those concerns and other requests for reassurance sought at Second Reading by the noble Baroness, Lady Chapman, my noble friend Lord Clarke of Hampstead, the noble Baronesses Lady Masham and Lady Hanham, the noble Lord, Lord Maginnis, and Members of another place, I tabled the amendments standing in my name. They specifically address the concerns of those who want the Bill more explicitly to protect the most vulnerable people of all. They will make it clear in the Bill that when someone is making a "best interests" determination about life-sustaining treatment, they must not be motivated by a desire to bring about the person's death.
The noble Earl, Lord Howe, referred to the amendment tabled in another place by my honourable friend George Howarth. I give credit to my honourable friend for his work on the amendment. In the discussions and deliberations on that amendment, it was clear that there were real concerns about what was meant by the amendment and whether we could build on it, reflecting the spirit of what my honourable friend had done but taking it a step further.
On Report in another place, my honourable friend the Minister, Mr Lammy, said that we would table amendments to provide the clarification that stakeholders—particularly, but not exclusively, the Catholic Church—were seeking. As members of the Committee who were present at Second Reading will know, my noble and learned friend the Lord Chancellor confirmed that we would table those amendments. As the Archbishop of Cardiff indicated in letters and as I know from conversations with noble Lords, that fulfils the specific commitment made by my noble and learned friend in the letters of 14 December to which the noble Lord, Lord Patten, referred, and which I have ensured are copied to noble Lords.
In seeking to give the reassurance that has been sought, I must explain what the amendments will do. I completely understand what the noble Lord, Lord St John of Fawsley, was saying when he read from the book, and the issues that he and the noble Earl, Lord Howe, raised about mens rea and actus reus —concepts that I have had to get to grips with. The amendments are not designed to change the current law, but to make it transparently clear what is not part of any "best interests" determination.
The way in which noble Lords, including the right reverend Prelate the Bishop of Oxford, have dealt with this issue today reflects exactly the conversations and

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debates that took place in determining how we should address the concern and what we sought to do. We were asked to put something in the Bill that would be clearer about the best interests issues, not about changing the law.
Lord St John of Fawsley: I am most grateful to the noble Baroness for giving way. I regard that as heaping a coal of fire on my head, as I was a little brusque in my disappointment that I was no longer enjoying the favour of her countenance. Could she go a little further today and say that she will reconsider the question of motive and intention? It is of crucial importance that we get the right wording. "Intention", "motive" and "purpose" mean different things. I have the greatest respect for the most reverend Primate the Archbishop of Cardiff but, as far as I know, the Ordinary of Cardiff, though of great distinction, is not an infallible authority on theology, the law, or anything else for that matter.
It would be very helpful if the Minister would consider the question again. I am sure that she is sincere in trying to assist us all, and I would be grateful if I could have an encouraging reply to my modest suggestion.
Baroness Ashton of Upholland: As I have already indicated to the noble Lord, Lord St John of Fawsley, I intend to consider everything that has been said to me today. I fully appreciate that the noble Lord is looking at the issues of intent, purpose and motive. He will know far better than I that "intention" and "purpose" are used interchangeably in the courts; both cover the mental element of a crime, if I can describe it as such. They both cover the foresight of inevitable consequences. Motive, as the noble Earl, Lord Howe, said, is why people commit crimes—which is a different thing indeed. But we refer not to "motive" in Amendment No. 13 but to being "motivated". That is quite important, because we are considering best interests—
The Earl of Onslow: I do not understand the difference between having a motive and being "motivated by". Am I just very stupid?
Baroness Ashton of Upholland: I could never conceive of the noble Earl as being stupid at all. But if Members of the Committee look where we have positioned Amendment No. 13—in the best interests clause—they will see that what we are saying is that, when making such determinations, the person should not be motivated or driven. There are other words that we could probably look for on that basis. I am trying to distinguish between that and a motive in law for what one is doing.
I recognise that these are extremely difficult concepts. They are for me, and I know that they are for some other noble Lords, because I can see their faces— or countenances—and they look slightly confused. But we have spent a great deal of time considering the question. That is why some of the deliberations with the most reverend Primate the Archbishop of Cardiff and others have taken such a long time. As the
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Committee clearly appreciates, which is extremely helpful for me, words such as "purpose" have a very specific meaning in English law. Given the way in which clinicians operate, one could find oneself accidentally preventing them from doing their job effectively because of the way in which the words are interpreted in law and are used by them.
I feel that I am straying into the subject matter of about four different groups of amendments, but none the less I shall continue. On considering when someone is doing something with purpose, one almost strays into the work that was done around the Bland judgment about what clinicians were doing. When clinicians act in the best interests of a patient with the treatment they give, they may give treatments that also have the effect of shortening life. The obvious examples could be the risks associated with chemotherapy and other such treatments. We have been very careful in this Bill to ensure that we have not put our clinicians in danger of being unable to carry out good clinical practice.
The Committee has replicated exactly some of the discussions that we have had about what words one can use that express the desire to ensure that the provision is not about allowing people to kill people—because, as one Member of the Committee said, they want to free up the bed. We want it recognised that it is not in best interests that one should operate in that way. without seeking to change the law. That is why the amendment is framed as it is. What we have been discussing with the most reverend Primate the Archbishop of Cardiff—and it has been very helpful that noble Lords and Members of another place have participated in that discussion—is the form of words that enables us to be absolutely crystal clear about best interests and what we are seeking to do.
The other example is in Clause 58, which says that nothing about the Bill alters the law on euthanasia. Of course it does not; but saying that has helped to impress what the Bill seeks to do on those who take an active interest, and has given greater clarity to that. That is what we are about in the work that we are doing on the Bill at this stage: we are ensuring that we have clarified the matter as far as possible, to leave no one in any doubt about where we stand on these issues.
5.15 p.m.
Lord Alton of Liverpool: On the point of government Amendment No. 13, I believe that the Committee is grateful to the Minister for the amount of intellectual energy that she has put into trying to help us to resolve the issue. But she will have heard the anxiety expressed from all sides of your Lordships' House during this Committee stage about the distinction between the word that the Government have chosen to use—"motive"— and the words used by the noble Lord, Lord St John of Fawsley, and the right reverend Prelate the Bishop of Oxford, such as "purpose" or "intent". Would she accept that the discussion should continue at Report stage and say that she would not rule out revising the choice of word for one of those preferred options that have been mentioned by so many Members of the Committee?
Lord Walton of Detchant: Forgive me for speaking again, but may I say how much I agree with what the

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noble Lord, Lord Alton, has just said? In my brief comments earlier about the report of the Select Committee on Medical Ethics which I chaired, I should have mentioned that we went into considerable detail about the distinction between "intention" and "motive", agreeing with what has been said on the other side of the House. If the amendment were to be changed to say something like,
"must not be actuated by the intention of bringing about death",
I believe that it would have the same meaning and would be helpful
Baroness Ashton of Upholland: I assure the Committee that if there were a simple way through this, I would have taken it a very long time ago. The difficulty which the noble Lord, Lord Walton, has in a sense walked into is precisely the difficulty of what English law means. The noble Lord will know very well—and I apologise if I seem to be teaching him to suck eggs—that when choosing a particular form of treatment the clinician knows the consequences involved, which may have what is known in clinical circles as "double effect". That means that a treatment may have the purpose of helping to support the individual, but may also have implications in shortening life by a few hours, and so on.
We have sought to be absolutely crystal clear that we do not want to interfere with the way the law is at the moment. I have sought the best legal advice on this and discussed the matter with clinicians. I will of course continue to consider the issues, but I would not want to mislead the Committee, because what I am not going to do is to overturn the legal position that serves us so well. I am clear about what we were asked to do, which was to consider a clarification around "best interests". That is what we have done, and that is why the most reverend Primate the Archbishop of Cardiff has supported the amendment and why I hope that it will find favour with the Committee.
Baroness Warnock: I am sorry not to have intervened before, but I am in the process of losing my voice. One further difficulty that I find about "motivation", apart from the obvious legal distinction between "motive" and "intent", is that overall the motivation of the clinician who seeks the best interests of the patient, with all the help that he can get, is the motivation of compassion. That point has been made frequently, and I entirely agree with it. That is the clinician's motive; and to say that he is not,
"motivated by a desire to bring about his death",
seems to me all right, as long as it is not taken in the ordinary legal sense of "motive". But the clinician has a motive to bring about a patient's death if that is what the patient has perhaps originally put in the will—that in these circumstances, this is when the patient would like to die. But also the motivation is a desire to relieve the patient of extra suffering that would be imposed by futile extra treatment. That is another reason why I feel dubious about "motivation" in this context.
Baroness Finlay of Llandaff: Will the Minister confirm whether I am right? We are considering best
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interest decisions—decisions that are taken because there is a point of difficulty. We are also talking about life-sustaining treatment. Without that treatment, the patient would be dead. I refer to a situation where a disease is causing a patient to progress inexorably towards death. You may have something with which you can intervene to delay that death. Your decision not to do that must be motivated by all the other aspects of best interest so that you do not inflict futile, harmful, burdensome treatments and do things which would deny other people treatment. If you have a limited number of ventilators, continuing to ventilate a person where it is futile may endanger the lives of others; that situation can occur in real life. However, you should not decide not to ventilate because you are motivated by a specific desire to bring about the death of the relevant patient. I wonder whether we have forgotten the line of the amendment that relates to life-sustaining treatment. Without the intervention that is being considered, the patient would die naturally anyway. Am I correct in what I have said?
Baroness Ashton of Upholland: Yes, the noble Baroness is correct. As I said, we seek to be clear regarding the concept of best interest and life-sustaining treatment. We have sought to capture what I term the "moral" notion of best interest. It is an objective test; it does not involve what I might consider is in the best interest but what actually is in the best interest. It is not a judgment about another person's life but concerns treatment and what is in that person's best interest. That is the critical issue. As I have indicated, we do not seek to overturn the law or to put clinicians in an impossible position. English law has a very particular understanding of, for example, the word "purpose".
That is all I have to say on the matter at this point. I have already said—and I mean it—that as we progress through Committee other issues will arise that come within the scope of some of the considerations that Members of the Committee have debated. We need to engage with the full debate about advance decisions and so on. I am thankful that the Committee stage enables us to explore issues and Report to confirm them. As I say, I shall consider all of the points that have been raised. However, I would not wish to see us move in a direction that overturns the law. That is in part why we have chosen the language that we have, and why it was sought. The language was sought by those who wished to ensure that we dealt with the best interest concern.
Lord St John of Fawsley: I am most grateful to the noble Baroness. I assure her I accept entirely that she has no intention—nor would she have the power—to overturn the basis of English law. Those of us who have expressed concern about this matter are concerned that this amendment does not make clear what the basis of English law is, and does not take it sufficiently into account.
I was most grateful for the intervention of the noble Baroness, Lady Warnock, because she brought us back to the fact that—I am glad that her voice had not

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entirely given out because what she said was so true and so germane—what we are considering here is not merely a legal quibble but questions of relieving suffering and extending compassion. However, in order to do that one has to find the right language. May I suggest to the Minister that she include in her discussions—this is an ecumenical remark—the right reverend Prelate the Bishop of Oxford, who has contributed so much not only to this issue but also to other issues in the difficult field of the relationship between moral theology and the law, and the noble and right reverend Lord, Lord Habgood, the former Primate, who has the astounding mind in this country on this issue? It would be very wise for the Government to make full use of that extraordinary instrument of clarity and intelligence.
Baroness Ashton of Upholland: As I think the noble Lord will know, I am open to discussions with any noble Lord who wishes to discuss matters with me. I hesitate to force the noble and right reverend Lord, Lord Habgood, or, indeed, the right reverend Prelate the Bishop of Oxford to do so, but I would be delighted to discuss the matter with them. However, that discussion would take place in the context of the way in which we have approached this matter. I wish to be clear about that.
I say to the noble Lord—I fear that I shall regret doing this—that one does not seek to define existing law within a new piece of legislation; one wants to ensure that existing law stands firm. In introducing a new piece of legislation—my experience of this to date is not great but I have come across it before—one does not want to disturb other well founded pieces of law. The law on criminal justice and murder is very clear and we have sought not to disturb it in any way. As I have indicated, I am always willing to undertake further discussions but I say to the noble Lord that those discussions must take place within the context of everything I have said hitherto.
I turn to the other amendments in the group. As I believe I have indicated already, we have sought to focus on the worthwhileness of the treatment for the person and not the worthwhileness of the person him or herself. I believe that in doing that we have met the underlying objective behind Amendment No. 11 in the names of the noble Lord, Lord Alton, and the noble Baroness, Lady Finlay. I believe that the noble Lord, Lord Patten, talked about life being futile. It is not a question of life being futile but rather of the treatment being futile. That is the critical difference, which I am sure the noble Lord accepts.
We believe that we have met the underlying objective of Amendment No. 97 in the names of the noble Lords, Lord Brennan and Lord Alton. However, I wish to say a little more about Amendments Nos. 97 and 99 and to explain some of the legal and technical problems relating to the drafting despite—I say this very clearly—the very positive intentions behind the amendments.
Amendment No. 97 seeks to prevent any measure in the Bill permitting a decision made with the primary purpose of,
"causing harm to, or bringing about the death of, the person".
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whose welfare is at stake. We have already talked a great deal about life-sustaining treatment I also spoke about the meaning of "purpose". The noble Baroness, Lady Finlay, mentioned treatment that was unreasonably burdensome and the need to consider' what benefits it can offer. We come back to the whole question of best interest.
Amendment No. 99 has similar wording to that of Amendment No. 97. Amendment No. 99 seeks to prevent a decision being valid if it has,
"the sole purpose of causing harm to, or bringing about the death of, the person about whose welfare the decision is made".
The same difficulty arises in connection with the word "purpose". It is important for noble Lords to reconsider these amendments in the context of the words that are used and the way in which they are determined in English law.
I turn to Amendment No. 17 in the name of the noble Baroness, Lady Barker. The amendment is supported by the noble Earl, Lord Howe. We have already made it clear—I have indicated this several times today—that best interest constitutes an objective test, which means that decision-makers have to give objective reasons for their decision. As the noble Baroness says, the Bill does not spell out a requirement to demonstrate an objective decision because that depends on when and to whom the demonstration would have to be made. Although the noble Baroness, Lady Barker, pre-empted what I am about to say by saying that one should not assume that the measure would leave the person unprotected or delay decisions, there is a concern that it could have that effect because one would have to work out how one was going to deal with it.
5.30 p.m.
I draw the attention of the noble Baroness to point 4.28 on page 37 of the draft code of practice, which says that when the court is not involved, carers, relatives and others can only be expected to have reasonable grounds to believe that what they are doing or deciding is in the best interests of the person concerned. That does not mean that informal decision-makers can merely impose their views. Rather, they must be able to point to objective reasons to demonstrate why they believe that they are acting in the person's best interests. They must consider all the relevant circumstances and the four elements of the checklist.
We have covered the point made by the noble Baroness on the code of practice. I am sure that she will want to reflect whether that is sufficient, but it is better placed in the code of practice, which will be the living document used to support people when we implement the Bill. I am also advised that the legal effect of the requirement to have a reasoned belief is that you would have to demonstrate your grounds in a court of law. Between the combination of how it would work in practice in law and the code of practice, I hope that we have addressed in essence the points made by the noble Baroness.

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On Amendment No. 19, the noble Lord, Lord Alton, made a point about the continuity of care; for example, speech therapy for young people. In my former existence, I was deeply concerned to ensure a smooth transition for young people. I cannot say that it is perfect in every case, but there are some clear indications in practice that this is now better than it used to be. I reassure the noble Lord that the courts have said that the best interest test for adults who lack capacity is akin to the welfare test for those under 18, so there is not a sudden moment at age 18, as the noble Lord feared, when the principles change, or the wishes of a person suddenly carry more weight within best interest. Of course, the difference is that the role of parental responsibility changes, because they lose their decision-making power once a young person reaches 18. The Bill requires that the views of family members be given full consideration. It might not be a formal decision-making power—that is right because they are now adults—but it is a factor to be taken into account. We believe that there is that smooth transition, and I have looked at this carefully, because it is an important point. I am happy to discuss this with the noble Lord, and I am happy to write further if that would help to clarify the issue.
We have said on this Bill, and many of the contributions today have covered this to some extent, that there are two routes for action and decisions about medical treatment. The first route is for third parties to act or make decisions for or on behalf of the person who lacks capacity, which must be taken according to best interests. We have had a long discussion about that. The second route is for the person him or herself to make a capacitated decision in advance to refuse treatment, so a decision by a third party would not be needed. Decisions made by the person him or herself are different from best interest decisions.
The noble Lord, Lord Brennan, in introducing this debate, suggested that the principle of allowing people to make unwise decisions in Clause 1(3) should be circumscribed, so that it is overridden if it is wholly irrational. I will not say anything further about the important points made by the noble Lord, Lord Mayhew, and the noble Baroness, Lady Carnegy, except to agree with them about the difficulty of "wholly irrational". I take what the noble Lord said about administrative law, but I am not sure that I accept the analogy. Administrative law as I understand it—and I have no doubt that I will be corrected by Members of the Committee—is about the courts controlling public authorities who must act in accordance with public law duties. Capacity is about whether an individual can go about a proper process of personal decision-making. I would not accept the analogy.
The noble Lord also talked about a mother in distress who makes an advance decision but the circumstances change. It is worth looking again at what we have said in the Bill, because we are clear about the safeguards. Where circumstances have changed, or where the person making the decision at that time could be shown to lack capacity for whatever
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reason—and it is a broad term in that sense—then the clinician can say, "this is not appropriate, it is unsafe; I am going to treat". He can treat with impunity, without any fear of any kind of comeback or recourse to law. That is important.
This is about the principle of autonomy, and many people, particularly from organisations representing those with physical or learning disabilities in particular, have fought long and hard for autonomy. The right to make choices is part of being an autonomous adult. As noble Lords have said, and I will not go over it again, the question of whether something is unwise is debatable. I hesitate to say this, but could a noble Lord who has never made an unwise decision please stand up? It is part and parcel of being autonomous.
We will come to this shortly in an amendment proposed by the noble Earl, Lord Howe, but it is important to weigh up the information, either because of a pattern or because it is clear that the person making the decision has not been able to weigh up the information—that is when the Bill kicks in. Someone might do something that we might consider unwise, and there are many examples. I used the example at Second Reading of going out and lighting up a cigarette, which might be considered unwise, but I would hesitate to suggest that noble Lords might not be able to do that. It is particularly relevant for young adults when they are striving to become autonomous. While I accept and understand what the noble Lord seeks to do, I do not accept that we could incorporate that.
On advance decisions, it is right to respect people's wishes. They are decisions that people with capacity can choose to make if they so wish. The principle that people can decide whether to refuse treatment arises from the common law, where it is clear that a competent adult's personal autonomy is paramount.
My noble friend Lord Carter referred to where this had been set down. It was the noble and learned Lord. Lord Donaldson, in the case of T (Adult: Refusal of Treatment)[1992]. I think that this is the quote that my noble friend was looking for:
"Prima facie, every adult has the right and capacity to decide whether or not he will accept medical treatment, even if a refusal may risk permanent injury to his health or even lead to premature death. Furthermore, it matters not whether the reasons for this refusal were rational or irrational, unknown or even non-existent. This is so, notwithstanding the very strong public interest in preserving the life and health of all citizens".
The noble Lord, Lord Goodhart, in his intervention on my noble friend Lord Brennan raised the issue of Jehovah's Witnesses, who make advance decisions that under no circumstances they would wish to have a blood transfusion. That is their right, however unwise or irrational any noble Lord might think it. That is where the noble and learned Lord, Lord Donaldson, takes us.
On Amendment No. 197, I have sympathy with the noble Lord, Lord Alton. I have no wish for professionals to be unclear about what to do if faced

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with, for example, a young person who has taken an overdose in a suicide attempt. The noble Lord and I discussed these examples last week, and I was grateful for his time. That is why we have ratcheted up in this Bill the raft of safeguards around advance decisions that are not in place now, because this is in common law and not in statute. Where treatment is necessary to sustain life, no advance decision will be binding unless it complies with the strict formality rules. It is hard to imagine that a young person who has been abandoned by a lover, or for whatever reason is depressed, unhappy, or miserable, would meet those rules. In any event, it must be clear that if someone makes an advance decision to refuse treatment, they would have the capacity to do so. That means being able to exercise free will in the absence of duress.
If the treating clinician has any doubt whatever—and I have tested this example on clinicians—about the validity and applicability of an advance decision, they can safely go ahead and provide the treatment. As I have indicated before because of something raised in another place, there could be no recourse in law. They cannot be sued for having done that. There are far more safeguards than under the current common law, and it is infinitely less rather than more likely that any putative advance decision could be considered binding by someone in that case. It is very important for the Committee to understand the matter; it makes a big difference in supporting clinicians taking action.
The noble Lord, Lord Alton, suggested a conscientious objection clause. Guidance to professionals on conscientious objections will continue as now but, legally, a doctor's position will be clearer than at present. Again, the GMC and BMA are comfortable and confident about the guidance that goes out to doctors about conscientious objection. I am happy to send notes of anything that we have to the noble Lord, but I repeat that, if a doctor has any doubt whatever about an advance decision, they can go ahead and treat.
Lord Alton of Liverpool: It is an important point. The Minister was good enough to organise a meeting last week that a number of noble Lords were able to attend, addressed by Dr Michael Wilks, the chairman of the BMA's ethical committee. During that discussion upstairs, he said that doctors must act free from pressure where advance refusals are involved. Given the concern of many people in the profession that they might be expected to do things against their will, will she give further thought to writing a conscience clause into the Bill, rather than leaving the status quo?
Will the Minister return to the point raised by the noble Lord, Lord Carter, about the Suicide Act 1961? Parts I and II of that Act deal with anyone who aids and abets a suicide, and Part II is on the giving of counsel for the procuring of a suicide. She said that we must be careful not to disturb other parts of the criminal law. Given that that Act places a criminal liability for complicity in another's suicide on those who may have been involved, how will such provisions apply in the
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context of the Bill? Will she consider—again, as a declaratory provision—writing it into the Bill that nothing in it disturbs the 1961 Act?
Lord Carter: The question was raised of an expressly stated suicidal advance decision and whether a practitioner would be protected by Clause 2 of the 1961 Act.
Baroness Ashton of Upholland: I was going to address that point. I will consider what the noble Lord, Lord Alton, said, but he will appreciate that we have consulted the organisations that represent doctors in our discussions about whether there is a need to do further work around the conscientious objection clause. We will continue to consult them; they take responsibility on the issue. Thus far, they are very clear that the conscientious objection clauses work extremely well for clinicians and physicians. If he thinks that that is not right, we can discuss it separately, but that is their view, and they think that it will be covered in the Bill. I do not have any resistance to the issue, but the best way forward appears to be to leave matters as they are, because they work well. I am always reluctant to add to a Bill something that then needs to be interpreted if we have good practice that works extremely well.
The noble Lord reminded me of what my noble friend Lord Carter said about the 1961 Act. I shall cite the noble and learned Lord, Lord Goff, in the case of Mr Tony Bland, which I hope will add some light to the situation and at least give the Committee something to think about. I shall not quote precisely, I hasten to add, but am speaking from the officials' notes given to me. When a person with capacity refuses treatment, the law does not consider him to be committing suicide. His motive is irrelevant. He is merely exercising his right to refuse medical intervention. Therefore, it follows that a doctor does not aid or abet his suicide by respecting his wishes and withholding treatment. Aiding or abetting involves some encouragement or assistance, with the intention of furthering the crime or, in this case, the suicide. I hope that that helps my noble friend.
Lord Carter: Not quite. The advance decision is not refusing treatment, but an express wish to be helped to commit suicide.
Baroness Ashton of Upholland: If an advance decision read, "I wish to kill myself, that is not an advance decision. An advance decision is a refusal of certain treatment. It has to be treatment-specific and circumstance-specific, so it would have to say, "I do not wish to have antibiotics if I am in the final stages of terminal cancer", and so on. The example that we have been using that gives greater clarity is blood transfusions; you might state that you did not wish to have them. You cannot say "I wish to die" or "I wish to kill myself"; that is not an advance decision, and a clinician would not act on it in that way. I hope that the combination of those two pieces of information goes some way to clarifying the issue.

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I hope that I have dealt with quite a few of the points raised, but let me try to clear up two or three further ones before Members of the Committee leap up and say, "You haven't done mine". The noble Lord, Lord Patten, has a look on his face that suggests that he might do that.
Lord Patten: I simply wished to look the noble Baroness fully in the face, as my noble friend Lord St John of Fawsley would wish on every occasion.
5.45 p.m.
Baroness Ashton of Upholland: The term is "countenance" this afternoon, which is a very good word.
The noble Baroness, Lady Finlay, talked about emergency situations in obstetrics and women refusing caesarean sections. There would be no change in the law. The courts would continue, as they do now, to make a ruling in the woman's best interests if she lacked capacity. If she has made an advance decision, it will be clearer and safer under the Bill, as the decision will not apply unless the strict formalities in the Bill have been used. That makes the position safer than it is now. We expect to continue to deal with emergency applications as necessary. The noble Baroness will know better than I do that hearings can be by phone and in the middle of the night if necessary; that practice will continue.
The noble Lord, Lord Patten, talked about the duty of care and there being no legal remedy if there is an attorney. An attorney has a duty of care to the patient—to P—in the well established law of agency, which will now be a statutory duty to act in P's best interests. If treatment is withheld in response to an attorney's decision, the attorney may be liable, even in gross negligence manslaughter. The doctor still retains the duty of care to P; that is not changed by the attorney in any sense. That is how we have sought to be clear about what an attorney may or may not do. That goes back to the clinician and the duty of care, and the "best interests" objective test.
The wishes of consultees also have no part to play in Clause 4. It is their views on P's best interests that are to be considered. As I said, "best interests" means what is best for P. It is not right to suggest that that excludes the promotion or improvement of health, because it must include that. I have already talked about whether the patient's life is worth while. The point is not the patient's life, but the treatment being in the best interests of the patient. That is another reason why we resist Amendment No. 11, because it would refocus us on the value of the person's life, rather than looking with greater clarity at the treatment.
The letter from my noble friend Lord Filkin about a doctor who thinks that an attorney is acting in a way that could be murder or manslaughter has been quoted. That takes us to the heart of the matter. I agree with what he said. It is also why doctors seek rulings from the court, which is important in ensuring that a doctor can continue
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to treat a patient while seeking the advice of the court if he has a concern. The ability to treat will be enshrined in this statute, which is important.
The noble Lord, Lord Walton, raised the changes in medicine in relation to advance decision. It is already clear in Clause 25(4)(c) that, where circumstances have changed—that includes where changes in medical practice or medicine have changed—there is no question but that the clinician can say, "The circumstances that prevailed when the advance decision was written no longer apply. We have a new drug. That treatment is not applicable". We shall come on to other examples when we deal with that provision, and I hope that they will make it clearer.
I have addressed as many of the issues as I can think of, and no one is leaping up to tell me that I have not. My final comment is on Amendment No. 18, which exists because an error has crept in. The word "his" should not be there. The reason I want to take it out is that in the case of a pregnant woman we want to ensure that the life of the baby, not only the life of the mother, must be considered. I have no doubt that that change will be welcomed by all Members of the Committee, but I wish to explain that it is purely a drafting error that has crept in. If left in, it means that the life of a baby would not be considered and I am sure that no noble Lord would want us to be in that position.
This Bill celebrates life and, as the noble Baroness, Lady Barker, said, is about living and how we live. That is what we seek with this Bill. It is about what is in people's objective, best interests, not about disregard for their lives. However, I respect the fears and concerns raised and always want to respond positively. I think that we are all geared to getting the Bill through in the best possible order. It is in that spirit that I shall take away and read through the points raised and promise to answer any questions that I have failed to answer at the Dispatch Box today, so that noble Lords can respond. I shall move the government amendments recognising that noble Lords may want to return to them at Report. In that spirit, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Brennan: I am grateful to all noble Lords who have taken part in the debate. It has been extremely interesting to note the range of opinion on so many fundamental issues in the Bill.
I shall close my remarks on three issues. I refer, first, to personal autonomy. No one suggests that the right expressed by the noble and learned Lord, Lord Donaldson, does not exist. The question is whether it is an absolute right. When I tabled Amendment No. 1, I did not intend that it should be subjected to such vigorous dissection: legal, clerical, clinical and political. My motive was to stimulate debate about the question of the limits, if any, of personal autonomy. I am taken by the phrase "principled autonomy". The reason I included paragraph (b) is that American legislators and courts, which have had this kind of legislation, ultimately found it necessary to consider the balance in a certain number of cases.

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My second point concerns the circumstances prevailing at the time a decision is made. Those members of the 1994 committee who have spoken illustrated concern by their then view that such advance decisions should not be in writing. So, as soon as we invest them with the legalities of the Bill, complexities abound. If they are not in writing, matters are much less complex. But I expect the Government to stand by the position that such matters should be in writing. The question then is: do we simply give effect to the bald words of the decision regardless of circumstances that applied at the time or later? Of course, we do not if we consider Clauses 4 and 25. I am particularly reassured that Clause 25(4)(c) gives doctors, proxies and courts, as the noble and right reverend Lord, Lord Habgood said, opportunities to avoid the consequences of a decision which, considered retrospectively, could not presently be supported.
Lord Habgood: I thank the noble Lord for giving way. My intention was not to say that they should not be in writing—obviously matters of this kind have to be—but that they should not be legally binding. They should be not legal documents but advisory documents to help the doctors to make their decision.
Lord Brennan: I am grateful for that correction to what I intended to say, which is that they should not be legally binding.
I turn to the last of my three points. When we consider the question of how an advance decision may fall to be put into effect, it is extremely important as we go through the Bill clause by clause to ensure that anyone whose job it is to give effect to this—whether medically, as a proxy or as a court—is entitled to take into account all the circumstances. It would be most unfortunate if we ended up with a legal framework in which there was not the "all the circumstances" provision that would enable the right decision to be made.
Finally, I shall comment on Amendment No. 13. In criminal law there are rules of mens rea in respect of murder, manslaughter and assisted suicide. There are requirements of specific intentions before the crime can be proven. The specific intention of each of them is to kill, cause serious injury or to cause a suicide by way of assistance. The phrase "motivated by desire" does not readily fit in with those concepts of specific intent. The clarity which some of us seek reflects that concern. Does this form of wording meet the concern?
Lord Goodhart: I apologise for intervening again and am grateful to the noble Lord for giving way. Does he not agree that there is a crucial distinction between motive and intention? If I have a loaded pistol and I point it at someone's head and pull the trigger, it is quite clear that I intend to kill that person. The motive is the reason why I want to do that. It might be, for instance, that it is in self-defence. Therefore, if one
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takes the wording of a government amendment and alters it from "purpose" to "intention", does that not mean that it will become impossible to satisfy that test?
Lord Brennan: I did not suggest that we should use the word "intention". I was inviting careful consideration of the appropriate form of words on what is a very difficult question.
Lord Alton of Liverpool: The government amendment does not use the word "purpose", but "motive".
Lord Goodhart: I meant to say from "motive" to "intention".
Lord Brennan: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Howe moved Amendment No. 2:
Page 1, line 13, after "must" insert "(unless precluded by the operation of sections 24 to 26)"
The noble Earl said: I begin my remarks by saying how much I welcome Clause I with its clear statement of the principles that are to be taken to apply to everything else contained within the Bill. The model adopted by the Mental Capacity Bill in this sense is one which many other Bills would do well to follow. It so happens that the amendment relates to a principle which many would regard as the most important and far reaching of all; that is, the principle which we have been debating, that of best interests, the practical meaning of which is covered in some detail in Clause 4.
In Clause I the overarching provision is quite simple and clear:
"An Act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests".
Again, I welcome that idea because it means that for the first time it is the mentally incapacitated person himself who in law occupies centre stage. It will not be enough to consider without a great deal of forethought what the person might have wanted to happen to them and leave it at that.
Still less would it be acceptable to treat someone who might or might not be lacking capacity as though they were not there and to take the decisions regardless of what their wishes, feelings and beliefs might be. "Best interests" runs much wider than wishes, feelings and beliefs, as the noble Baroness indicated. The duty of a carer looking after a person who has lost capacity, the duty of a doctor, attorney, court deputy or independent consultee will be governed by the obligation to act in the person's best interests at all times. That in itself is a tremendous safeguard for the vulnerable individual.
Against that background, the amendment may be somewhat nit-picking. There is one signal area of the Bill in which the principle of "best interests" is trumped: that is the part in Clauses 24 to 26 which deals with advance decisions. I do not want to anticipate our debates on

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whether or not advance decisions should be legally binding, and so forth. I ask the Committee to set aside that issue for now. What concerns me is the narrow point of what the Government seek to achieve.
The Bill makes clear that where a doctor is considering giving treatment to a person who is mentally incapacitated and that person had previously made an advance decision which is accepted as being both valid and applicable to the treatment in question, it does not matter whether or not the doctor believes that the withholding or withdrawing of the treatment is in the patient's best interests: the advance decision must be respected and put into effect. The doctor may well think the opposite: that withholding treatment may be dangerous or the wrong thing to do; but, as the Bill stands, the patient's decision must override that.
The pedantic point is this. Can we leave Clause I as making a blanket statement about the best interests principle in relation to the Bill as a whole? It is messy to have to qualify the principle in the way my amendment seeks to do. Yet it may be necessary if we are to have a Bill which is completely honest with itself. I hope that the Minister will see the point of the amendment. I beg to move.
6 p.m.
Baroness Ashton of Upholland: I do indeed see the point. I was grateful for the recognition by the noble Earl that the incapacitated person is put centre stage of the Bill and that "best interests" be an objective test— the critical point made by the noble Earl.
I shall try to deal with the issue in a straightforward manner by taking us through the way in which the Bill works in this regard. Members of the Committee will know that anyone taking a decision on behalf of a person must do so in his or her best interests if the person lacks capacity. That is the principle of Clause 1(5) which states:
"An act done, or decision made … for or on behalf of a person who lacks capacity must be done, or made, in his best interests".
However, the Bill's provisions on advance decisions do not fall into that category. An advance decision is your personal choice. It is a decision you make yourself when you have capacity in anticipation of a time when you may lack capacity. So I do not believe that there is a collision between the advance decision clauses of the Bill and the principle of best interests. The advance decision clauses do not conflict with the principle in Clause 1 (5) because nothing in the advance decision amounts to,
"an act done, or decision made … on behalf of a person who lacks capacity".
All decisions made in advance are made by people who have capacity. When a clinician follows a valid and applicable advance decision, he is not doing an act or making a decision on behalf of a person who lacks capacity to make his decision. The decision represents the person's decision to refuse treatment made at an earlier date. In other words, it is as though the person has capacity. That is how I describe it to the noble Earl. I make the decision in advance. I make it as I am now.
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It is on that basis that the clinician has that relationship with me. It is my decision. It is quite different from acting in the best interests of someone who lacks capacity and a decision is made on his or her behalf.
I believe that that explanation is clear but I am not certain that I have convinced the noble Earl. I do not know how to make it clearer. I am happy to discuss the issue with the noble Earl and to write to him if that helps. It is the difference between acting as though I still have capacity, therefore it is my decision; and not having capacity and someone acts on my behalf in my best interests. On that basis, I hope that the noble Earl will feel able to withdraw the amendment.
Earl Howe: Of course, I shall withdraw the amendment although I find the Minister's reply a little baffling. If I have heard correctly, the noble Baroness said that advance decisions are not about acts done for or on behalf of someone else. I should have thought that the operation of Clauses 24 to 26 was very much about that. If one takes the withdrawal of treatment from an incapacitated person, that is a positive act done for someone else in accordance with an advance decision. As the Minister rightly said, the crucial difference is that it is the patient's own decision, rather than that of the doctor, which brings it about. The operation of those clauses means that by the very fact of the person being mentally incapacitated, someone else acts on his or her behalf. Someone else withdraws treatment—if that is what the decision says. That is a positive act done for or on behalf of that person. I am not sure that I am entirely with the noble Baroness. I do not know whether she wishes to add anything.
Baroness Ashton of Upholland: Perhaps I may try again. When the clinician follows that advance decision, he is not doing so on behalf of someone who lacks the capacity to make the decision. He is following the advance directive of the person who had capacity and made the decision. When is it done on behalf of a person? I have made the decision: it has not been made for me or on my behalf by the doctor. I am probably into semantics of the worst kind but I want to assure the noble Earl that it works in the context of the Bill and works, therefore, in law.
Earl Howe: I am happy to reflect on the Minister's words for which I am grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Barker moved Amendment No. 3:
Page 1, line 16. at end insert—
"(7) An act done, or decision made under this Act by any person acting in a professional capacity, or for remuneration, for or on behalf of a person who lacks capacity must have regard for the matters mentioned in paragraphs (a) and (b) below in so far as they are relevant to the function being discharged—

(a) it must not be done in a way that is less favourable than the way in which it would be done or made for. or on behalf of any other person who lacks capacity, or for a person who had capacity, in a comparable situation, or

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(b) it must be done without prejudice to the person's age, sex, sexual orientation, disability, religious persuasion, racial origin, cultural and linguistic background and membership of any ethnic group."

The noble Baroness said: We return to principles. In deliberations on the Bill, enduring principles have been sought which can be applied in individual circumstances to achieve outcomes in the best interests of the individual who lacks capacity.
Throughout discussions, many have been conscious that not all human beings start from an equal base point. That is particularly so in relation to medical treatment. Throughout the long gestation of the Bill, I have talked frequently about it with people who have disabilities. Many fears—some of which have been articulated in previous amendments—stem not from any provision in the Bill but from a perception, sometimes from experience, of being treated in a way which is disadvantageous—having assumptions made about the value and quality of a person's life simply because of a disability.
For that reason many of us have sought a guarantee that the principles of the Bill will apply equally to people whatever their capacity and, crucially, their status, whether or not they lack capacity—age, disability and their distinctions as human beings.
The purpose underlying the amendment is to ensure that the principles of non-discrimination apply throughout the Bill. I mentioned this matter at Second Reading and I was grateful to the noble Baroness for the letter she wrote to me in reply. There is concern that there are some forms of disability which would not fall within the Bill; for example, people who have mental health conditions which are not permanent or not of a sufficiently long duration for them to be regarded as having a disability, and, therefore, come within the auspices of anti-disability discrimination legislation. That is a major concern. Throughout the Bill there arc a number of places where, although they have sought to address temporary or episodic incapacity, it should be an important principle that we ensure there is a direct relationship between the two.
Secondly, I should explain why the amendment takes this form. Its purpose is to state at the front of the Bill a principle of equal consideration. In another and parallel universe, the Committee considering the Mental Health Bill had an interesting discussion with a Minister last week, on the same subject of principles at the front of that Bill, about the need for principles to be enduring. My contention is that the amendment's principles of non-discrimination on those grounds should continue.
The Minister set out at some length, in the letter she sent me after Second Reading, her reason for not being well disposed to such an amendment, saying that there was a read-across from the Disability Discrimination Act and the Disability Discrimination Bill, which is currently working its way through Parliament. I agree that there is a strong read-across. But I do not accept her argument that,
"the place for anti-discrimination provisions is in specific anti-discrimination legislation, where there is a proper framework supporting the measures and a proper enforcement mechanism",
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because I believe that anti-discriminatory principles run through all sorts of applications and different areas of policy. There is a strong case for restating those principles within specific pieces of legislation.
The noble Baroness should accept from statements made in earlier debates that I believe passionately in the freedoms and the dignity that this Bill will give to individuals, but people who have disabilities do not currently believe themselves to be at an equal level with the rest of us. They should be, but they are not.
When the Joint Committee considered this matter, we read an article in the Guardian by Jane Campbell— one of those newspaper articles that make such a profound impact on you that you cannot forget it. She has severe disabilities and talked about her experience of going into hospital and willing herself not to sleep for the duration of her stay, lest any decision be made about her, her life and her treatment that would have been adverse to her. That was a particular and powerfully articulated experience of one person. I believe that she spoke for many disabled people and their experience and expectations of the Health Service.
So, it is not otiose or wrong to replicate anti-discriminatory principles in the Bill, which will apply them in relation to people who have mental incapacity. That would be a good way to proceed. As I said at Second Reading, this is, in some ways, landmark legislation. It is viewed by people who lack capacity now as something of a "Bill of rights" for them. I do not believe that it would in any way undermine any part of the Bill by having an explicit assumption of equal consideration right at the front of it. I warmly recommend that the Minister accepts my arguments. I beg to move.
6.15 p.m.
Lord Carter: I was glad to add my name to the amendment, because throughout our discussions we have agreed that no assumptions should be made that life has less value for people who have difficulty in making decisions or need support to make those decisions.
The concerns stem from evidence, anecdotal and otherwise—in fact, it has been almost proved this week, and I shall return to that—that prejudices of attitudes about the quality of life of a person with serious learning disabilities, autism, mental health problems or a head injury, or another condition that leads to a loss of capacity can get in the way of supporting that person and how they are, what they want and what they need. This week I have heard—but not been able to obtain—reports about people with learning disabilities and other conditions having less life expectation than others.
I was given the example of a lady with a learning disability who had a stroke and was not treated properly as a result of that disability. My understanding is that if a stroke is dealt with quickly there is a chance of some recovery. The lack of treatment meant that she was permanently disabled—more so than she had been. The inference that one can draw is that the treatment given to

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people with learning disabilities is subconsciously affected. That seems to have been demonstrated by the report of reduced life expectation.
Perhaps the Minister may be brief in her answer, because in the answer given in the House of Commons it was pointed out that the Disability Discrimination Act 1995 and the Disability Discrimination Bill, which is currently proceeding through this House, will provide the protection for decisions and acts carried out under the Bill. In fact, they will not, because only last Thursday in Grand Committee I moved an amendment to the Disability Discrimination Bill to bring within its purview people with episodes of depression that totalled six months over a two-year period. That amendment was turned down, as I expected, by my noble friend on the grounds that the definition of disability in the 1995 Act, which the Government intend to keep to, is that it has to be last for at least 12 months. Depression usually involves episodes of a few months at a time, followed by a partial recovery.
If someone was profoundly depressed and, therefore, lacked capacity under the Bill, can we be sure that they will be protected by it, because they will not be protected by the Disability Discrimination Bill? The example of Jane Campbell, who we in the field of disability all know well, was extremely good. She is seriously disabled and contracted pneumonia. She was told by the doctor, "Well, I don't suppose that you'll want to be resuscitated". He took his own judgment on the value of her life. That was absolutely wrong and she made it clear that she did wish to be resuscitated— her husband also made that clear. One can imagine all the occasions when doctors may be making that sort of judgment for people who are severely disabled or have learning disabilities so they cannot communicate well and so on.
The Minister might wish to claim, however, that in Clause 4(6), under best interests, it refers to having to take into account,
"the person's past and present wishes and feelings … the beliefs and values that would be likely to influence his decision if he had capacity, and … the other factors that he would be likely to consider if he were able to do so".
Would that meet our concerns? I am not sure it does, but it might be helpful. Is that the way that the Government, if they wish to, can deal with this? If they do not, I must agree that this principle should be in the Bill.
The Earl of Onslow: I rise to ask a question based on curiosity—and probably a certain amount of ignorance. I believe that the Roman Catholic doctrine on death is rather different from that of the Anglican and other Churches. They tend on the whole to strive much more officiously to keep alive, in a way that possibly—I look heavily at the right reverend Prelate the Bishop of Oxford to see if he can help me here— other Churches and religions would not. Would that
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influence be affected by the amendment? Should it be, or am I barking up a tree that is not even in the same forest?
The Lord Bishop of Oxford: As I have been called on, that phrase comes, paradoxically, from an agnostic 19th-century poet called Clough. He was quoted by a pope:
"Thou shalt not kill; but need'st not strive Officiously to keep alive".
That has been accepted by the Roman Catholic and the Anglican Churches—and a good range of other people—as enshrining a great deal of common sense. It is now widely accepted. There is no fundamental difference.
Lord Walton of Detchant: I add to that point that the evidence received by the Select Committee on Medical Ethics, which I chaired and which reported in 1994, made it clear that the Anglican, Roman Catholic and Protestant Churches, the Muslims and many others agreed that there were circumstances when it was totally inappropriate to continue with futile treatment, even if that resulted in death. The one group that did not agree with the principle that anyone had the right to refuse treatment, even if it resulted in death, was the Jewish faith. They said that it was contrary to rabbinical law. They were the only group which dissented in that situation.
The Earl of Onslow: I am grateful for that enlightenment. How, therefore, does even that Jewish element of faith affect the anti-discrimination views of the noble Baroness, which I think we all agree with? How should it affect them?
Baroness Greengross: I support the amendment for some of the reasons we have just heard. The amendment would provide a balance to the prevalent discrimination that people are actually unaware they are involved in.
It is extremely difficult not to make value judgments about a person's life when they are in the serious situation of lacking capacity. People believe wholeheartedly that they are acting in the person's best interests when they make such a judgment. Making the amendment to the Bill, even if it does no more than act as a sensible reminder that certain questions must be asked, would do a lot to counter what goes on all the time in our society. Sometimes people think they are kind, but often kindness can be misplaced. The people we are now discussing are at the bottom of the pile in terms of the value that society places on them, and it would be a help to them to make the amendment.
Baroness Finlay of Llandaff: I added my name to the amendment because it so important to pull clinicians up short and make sure that they offer a treatment to somebody that they would have offered to another person who had full capacity, without being prejudiced by their perception that the person does not have capacity. Clinicians must have the right attitude

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to making sure that there is equipoise in the way that they approach the treatment offered. The person who looks good and has full capacity with a 20 per cent chance of responding to a treatment will be offered it, as will a person who lacks capacity to consent to the treatment. That is equipoise in terms of the value of life, and unless we do that, there is a subliminal message that, somehow, some lives may have less value or worth. It is to get rid of the inherent prejudice that can come in. I am not convinced that disability legislation will pull people up short in the way that this amendment would, if it were made.
Baroness Wilkins: I support the amendment. I will not repeat all the arguments that have been so ably put, but the amendment is very necessary in a society where, sadly, people with severe disabilities are not seen as having the same value as others. The amendment would rectify the balance, as the noble Baroness, Lady Greengross, said.
Earl Howe: Any comments from me are otiose, but I emphasise my agreement with the points that have been made so very well, particularly that made by the noble Baroness, Lady Greengross. Given that we start off the Bill with this excellent set of principles, it is entirely right and appropriate to include an unambiguous declaratory statement of an ethical nature.
The statement says what we all believe, but more significantly it serves to buttress the general theme we debated in the first group of amendments. One cannot legislate against prejudicial attitudes, but one can make it clear, as the noble Baroness said, that such attitudes have no place when it comes to the operation of the Bill. This is not a Bill, then, where a priori presumptions about the relative values of different sorts of human life should play a part.
Baroness Ashton of Upholland: I have the papal doctrine available, and can send the noble Earl, Lord Onslow, a copy. However, I have no knowledge of rabbinical law. I wish the noble Baroness, Lady Barker, good luck in responding to that point. I am grateful to the noble Lord, Lord Walton, and we will endeavour to establish the specifics around the issue, in order to assist the noble Earl in the passage of the Bill.
In response to all noble Lords who have spoken in this debate, I completely understand and agree that no one should be discriminated against, nor receive substandard treatment as a result of disability, age, race, sex or indeed on any other grounds. I know this was an area of great discussion in another place and that the inclusion of such an equal consideration clause would mean a great deal not only to the noble Lords who have spoken but also to the Making Decisions Alliance, the I Decide coalition, and the Disability Rights Commission. In the spirit of the Bill, noble Lords will see that we are also trying to set out a way of changing attitudes and behaviour towards people who may lack capacity, which is a critical part of ensuring that people are not discriminated against. Declarations are one thing, changes of behaviour are the critical part.
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My next paragraph begins, "unfortunately". It is extremely difficult to do this from a practical and legal standpoint. Noble Lords will know that discrimination is not a simple concept. We may know what we mean by discrimination, prejudice and less favourable treatment, but in law and in legislation it requires greater definition than has been given in this amendment. I know the toes of the noble Baroness, Lady Barker, will curl as I have said this before, but the only place where we can seriously put anti-discrimination provisions is in specific anti-discrimination legislation—which of course encompasses all of the different areas of life that we seek to address.
The reason, primarily, is that if we are to have such legislation, we need to have a way of determining whether someone has received less favourable treatment. That means that we need a proper framework to support the determination of that treatment and also an enforcement mechanism.
Lord Carter: If we are not careful, we shall find ourselves being told, as we were last Thursday, that under the Disability Discrimination Bill depression is not regarded as disabling because it does not last for 12 months but that it can be dealt with under the Mental Capacity Bill. We now hear from the Minister that the Mental Capacity Bill cannot handle it and the issue is left to the Disability Discrimination Bill.
Baroness Ashton of Upholland: I was not present at the deliberations on the Disability Discrimination Bill, but I will read Hansard on the point. I suspect that there was an understanding, I am pleased to say, that people suffering from depression will lack capacity and should be regarded within the context of this Bill. However, I would hesitate to say that that would reflect issues of discrimination.
I say such things with regret because I would very much like to do everything I could to ensure that we had in place the right procedures. I simply make the point that one cannot make a declaratory statement of this nature without the framework, the way in which it would be determined and the enforcement procedures that would go with it, otherwise it would be ineffective at best.
I have already undertaken to reflect on whether there is anything we can do, but I want to make clear why I am resisting the amendment. It is specifically because the advice I have had—and I have pushed the issue, I hasten to add—indicates that we would have to proceed in that way.
My noble friend Lord Carter referred to issues of best interest. It would be inconceivable that giving someone less favourable treatment because of his disability, sex, age, race or sexual orientation could ever be considered to be in his best interests. Less favourable treatment could not be in someone's best interests, which is the point my noble friend is seeking. Within the ethos of this Bill, discrimination on any grounds would be entirely contrary to what we seek to do in protecting and empowering people.

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I could go on and talk about the provisions within existing Acts, but I know that I am speaking to an audience who know the Acts far better than I, so I shall resist. I want to make three points in conclusion. First, the most critical part of what I want to see as a result of the Bill—we have an implementation in place not to pre-empt your Lordships' decisions or those of others but to recognise there is a lot to do—is to look at the cultural shifts that we need for people to understand incapacity and recognise and value all members of our society in the right and proper way. I might describe it as a more inclusive and accepting society.
I want also to look again at the code of practice, building on what was said by the noble Baroness, Lady Finlay, about "pulling clinicians up short". She can use that phrase, but I would not dream of using it, for obvious reasons. Perhaps few clinicians read legislation cover to cover, but we would look at the code of practice to see whether we can do more. The noble Baroness indicates that I am wrong and that clinicians do read it, but we can debate that.
I want to ensure that we can give greater emphasis around best interests to say that of course it can never, never be in someone's best interests to be discriminated against. I hope that that assurance will do something. However, as I have indicated, I will look again, but I cannot include the specific amendment before us because I would need to put that framework around it. Perhaps we can discuss the matter further and on that basis I hope that the noble Baroness is able to withdraw her amendment.
Baroness Finlay of Llandaff: I want to say for the record that I was not implying that the Minister was wrong. I was signalling that the Bill influences the guidance and the guidance influences the message which goes out to the profession. The professional guidance affects their registration. That is what they adhere to and that is what will pull them up short. The amendment is about the way that a decision is made and that means it must be properly recorded in the case records and so forth. In going back to audit the notes, one would then be able to compare and make sure that there was no discrimination.
Baroness Ashton of Upholland: I am grateful to the noble Baroness. Legislation is not the only way to influence the code because my commitment to alter it is absolute. We will do that. I will happily discuss whether we can do more, but say simply to the noble Baroness, Lady Barker, that I cannot accept this amendment because I cannot do so without all the other things that are required.
Baroness Barker: I must confess that in my preparation for the Bill I did not come prepared to discuss Papal Bulls and, by the absence of my noble friend Lady Neuberger, neither did I come to discuss rabbinical law. However, I want to begin by addressing the key, important points made by the noble Earl, Lord Onslow.
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My noble friend Lord Goodhart perhaps made the point for me. In response to the noble Lord, Lord Walton of Detchant, citing the evidence given to his Select Committee, my noble friend Lord Goodhart said that not all Jewish people would agree on that interpretation of rabbinical law. There we come to the point because one must look at the amendment also in relation to Clause 4(6), mentioned by the noble Lord, Lord Carter. It is the duty in the case of any individual to examine the person's past and present wishes and feelings, beliefs and values.
The point I seek to make was put forward by the noble Baronesses, Lady Finlay and Lady Greengross. There is a need to enshrine in law that anyone making an assumption about an individual on the basis of his membership of a particular group is no longer acceptable. The fact that one may establish that someone was a member of a particular faith may be a starting point from which to go on to determine under Clause 4(6) that individual's wishes and feelings, but it is not acceptable to stop at that initial point.
The second point I want to address was made by the noble Lord, Lord Carter. There is read-across between some of the discrimination legislation, but it is not sufficiently tight for this legislation to be acceptable.
I make my third point to the Minister. I do not accept that it is not possible to include a principled statement of this kind without constructing an implementation framework around it. The implementation framework for those principles is the rest of the Bill. That principle must be reflected, as do all the others, in all the mechanisms outwith the Bill. It is about the application of anti-discrimination legislation. I do not therefore believe that it is never possible to take anti-discrimination principles and to insert them into other legislation as a factor. This is perhaps a very good place in which to start.
I also say to the Minister that whether the department chooses to accept a similar provision on this occasion, the problem will not go away. It will return in other future legislation. That is because in different areas of life practitioners have moved on from the anti-discrimination legislation of years gone by and have begun to apply that. Anti-discrimination measures of this kind will continue to be principles which people seek to work into applications in other fields. And that is how it should be because discriminatory behaviour, or legislation about it, cannot for ever sit in some separate entity that is tied up in terms of anti-discrimination. It must begin to be reflected in different areas of life.
Therefore, while I accept that the Minister may consider my amendment inelegant, I do not accept her argument. I would greatly welcome the opportunity to meet her and her advisers to see whether in some way we can achieve what we are trying to edge towards.
I also agree with the noble Baroness, Lady Finlay, that it is important not only for clinicians and practitioners to know, but also for patients to have the wherewithal to call them up short. The noble Baroness might be frightened of doing so, but patients should not be.

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It is because of the strength of feeling on this issue, particularly among people who have disabilities, that, although I shall withdraw the amendment at this stage, I shall not let it go without a further fight. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clause 2 [People who lack capacity]:
The Deputy Chairman of Committees (Baroness Turner of Camden): I must tell noble Lords that if Amendment No. 4 is agreed to I cannot call Amendment No. 5 by reason of pre-emption.
Lord Turnberg Lord Turnberg moved Amendment No. 4:
Page 2, line 3, leave out "at the material time"
The noble Lord said: I have tabled this amendment because I believe that there may be some unintended consequences of some of the wording in Clause 2.
Clause 2(1) describes what the Bill takes to be a person lacking capacity, that is, someone who is,
"unable to make a decision for himself … because of impairment of, or a disturbance in the functioning of, the mind or brain".
That all sounds entirely rational. But the phrase "at the material time" is where there may be room for confusion, because it is unclear when the material time might be. Is it when the person is incapacitated or could it be some time before, for example, when they make an advance directive?
I also raise this matter because of a potential conflict with Clauses 30 to 32, with which we will deal later. They set out all the safeguards and conditions under which research may be undertaken on patients lacking capacity. It could be taken that the wording in Clause 2(1) is paramount and takes precedence over later provisions.
It may be helpful if I gave an example of some of the effects. I gave this example at Second Reading, so I shall be brief. A patient has a fluctuating illness, say manic-depressive psychosis, in which his mental capacity fluctuates. It is entirely conceivable that such a patient, when he is well, will want research done on his condition and will give consent for it to be done then and in the future when he is incapacitated. The wording here might appear to prevent that consent being accepted, as it was not given at the material time. I can give other examples, including the UK Biobank project, where 500,000 people are being sought to give consent for research that will go on for 20 or 30 years. What happens to that research if and when someone becomes incapacitated? That person may be seen as not having the opportunity to opt out at any time that others have.
I recognise that the wording in this clause may not have the interpretation that I am giving to it. But the problem is that the wording may be confusing to those who have to take note of it: research ethics committees and researchers. Ethics committees will always, quite reasonably, lean to the cautious side where there is any possible conflict in interpretation. If my amendment is not accepted—although I hope my noble friend will
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accept it—I hope that, at the very least, research ethics committees will be given clear guidance in the regulations, as I think is suggested in the amendment of the noble Earl, Lord Howe, or in the guidance notes, or, even better, in both. I beg to move.
6.45 p.m.
Earl Howe: My Amendment No. 5 is grouped with the amendment of the noble Lord, Lord Turnberg. It was designed to achieve the same purpose, which is to flag up the concerns that he has so ably expressed. It may be of assistance to the Minister to know that these concerns have been raised with us by respected bodies that are genuinely unclear about what the Bill means. Those bodies include the Academy of Medical Sciences, the MRC, the Royal College of Physicians and the Wellcome Trust.
Like the noble Lord, Lord Turnberg, I do not want to anticipate our later debates relating to research on incapacitated people. However, to take his example, if someone with manic depression who had agreed while mentally competent to take part in a research project then loses capacity and at that point expresses a wish to withdraw from the project, what position does that place the researcher in? The person may have explicitly said that if, when he was manic, he stated an objection to continuing to take part in the project no notice should be taken of what he said. But can a researcher rely on that instruction? The more I look at this clause, the more I agree with the noble Lord, Lord Turnberg, that greater clarity might be helpful.
Baroness Andrews: I am very grateful to noble Lords for bringing forward what I know are concerns of distinguished medical bodies. We are sympathetic to these concerns and are grateful to have the opportunity to clarify matters and to tell noble Lords what our intent will be. It is also good that they have welcomed the research clauses of the Bill. We look forward to debating them in due course.
In the meantime, two amendments have been tabled. The amendment of my noble friend Lord Turnberg simply deletes the words "at the material time" and the noble Earl, Lord Howe, has tabled an amendment to the same clause, Clause 2(1), that would provide that the Secretary of State can specify in regulations the meaning of "at the material time". I have been asked to assist in reducing confusion and to give some indication that we are dealing with the problem that researchers are anticipating.
The main problem is establishing whether consent to participating in research that is given while a person has capacity to do so survives loss of capacity or whether the consent ceases to be valid when capacity is lost. Noble Lords have rightly drawn attention to the kinds of research projects that might have begun before the Bill and will be ongoing when the legislation comes into force but which are not adversely affected by its provisions for research. There is, of course, a huge number of major trials involving many people where this situation might occur.

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I understand that the term "at the material time" applies when the act that would be unlawful without consent—for example, taking blood—is done. So the material time is the time of the act; in this case, carried out in the context of research. I understand that it will be difficult and, in some cases, impossible for existing and ongoing projects to meet the requirements of Clause 31, which covers approval. In some cases, especially in long-term projects, consent to use and retain samples and data is given by participants in advance for research that is conducted over many years and that may well continue beyond the onset of loss of capacity.
We are concerned to achieve a smooth transition from the current practice to that in the Bill. If, for example, an ongoing research project has already been approved and the participants have consented in advance, we do not want the project to be brought to an untimely or unintentional stop because of the formulation of the Bill. Indeed, it could be detrimental to a project if a participant could no longer take part because he lacked capacity. However, it would be burdensome, possibly excessively so, to put the whole project through an additional set of safeguards required by the Bill if there is a risk that there is one participant who might lose capacity during the project. We have to get the balance right. We do not want to be unfair and move the goalposts in that way. So, in looking for the best of both worlds, we need to ensure that research is not subject to excessive interference, while simultaneously ensuring that we protect the rights and dignity of individuals.
We intend to clarify whether consent given in advance to an ongoing or long-term research project continues to be valid when the person loses capacity. We need to be absolutely sure that adequate safeguards are in place to protect individuals who may lose capacity. Of course, under Clause 33, there is a very important raft of safeguards concerning the withdrawal of people wishing to leave a research project.
We also need to be sure that any changes we make are the right ones. Making changes to key Clause 2, which provides a definition of people who lack capacity, would have implications for the whole of the Bill. Simply deleting the words, "at the material time", as my noble friend proposes, would undermine the Bill's time-specific approach to capacity, which we need to keep. I am sure that Members of the Committee would not want us to do that.
I suggest that we take this away and look at how we might bring forward an amendment that expresses the notion of continuing consent in those circumstances. We will certainly consult widely with the bodies that have made their concerns known. I also take the noble Lord's point about guidance, which we will think about. With those assurances, I hope that the noble Lord will be able to withdraw his amendment.
Lord Turnberg: I am most grateful for that very full explanation and the willingness of my noble friend the Minister to look at this issue again. Of course, I am delighted to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 5 not moved.]
Clause 2 agreed to.
Clause 3 [Inability to make decisions]:
Baroness Barker Baroness Barker moved Amendment No. 6:
Page 2, line 20, after "information" insert "communicated in writing, orally or visually"
The noble Baroness said: The amendments in this group relate to communication. Currently, all clauses concerning communication relate to ensuring that no one is considered to lack capacity simply because he lacks the relevant communication support. Throughout the Bill, it is not clear whether people will still require communication support to participate in decision-making processes and to express their wishes and feelings. It is difficult to see how, in practice, the best interests of a person will be assessed if that lack of support is not there.
The amendments refer to communication in different forms, including orally and visually, which is extremely important. We have spent a lot of time today talking about expressions of wishes in writing. There are quite a number of people who for different reasons are very capable of expressing their wishes, but who cannot write. There is also the additional issue of people who have to use specialist means of communication—for example, Makaton—or people with learning disabilities receiving information in forms of Easy Read.
As I was preparing for today, I heard an excellent example of how things might go wrong. It was about a lady who had had a stroke. While collecting her pension, she could not remember her PIN number and could not write. In her dealings with the bank, with the assistance of an advocate, a bank employee said, "Well, why don't you make your husband your power of attorney?". The lady concerned has a perfect ability to think and knows what she wants to do. She just cannot write. For the purposes of this Bill, that was a fortuitous example.
Much of this Bill, and whether it will work, depends wholly on communication and appropriate means of communication being available at all times. Ultimately, the question is why we should seek to put this in the Bill rather than in the code of practice, which, not surprisingly, has an extensive section on communication. There are two reasons for that. First, people who have caring responsibilities for people with very profound learning disabilities and very limited communication have expressed powerfully what that is like and how long it takes to understand what is meant by a person who has no speech.
The second reason concerns resources and can be expressed in two ways. Communication of that type and the time that it takes necessarily involves resources. There is a cost for the types of communication that are being suggested becoming best practice. In our minds, there is a question about whether something that exists in a code of practice will command enough authority.

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Beyond a code of practice, there is the requirement for all sorts of different organisations— perhaps those that have not ever really had to deal with this sort of issue before— to begin to develop good practice. I am not sure that lawyers and solicitors, for example, routinely have had to engage in this. For all those reasons, we believe that these amendments should be considered in depth. I beg to move.
Baroness Finlay of Llandaff: Briefly, I would like to stress the point made by the noble Baroness, Lady Barker, about the need to have a very wide range of ways of helping people to communicate, which involves communication aids and relevant professionals, such as speech and language therapists. Like the noble Baroness, I have a concern that if there is not something in the Bill—accept that the wording of the amendments may not be quite right and that there is some duplication in the wording—there will not be the lever when it comes to the rationing debate to say that the provision of assistance to communicate must become a higher priority in the delivery of healthcare services.
Part of the reason why that will not happen is the way budgets are controlled, which tends to be in silos. The provision of communication aids in speech and language therapy will be in one silo and will be quite separate from other services available to people who lack capacity. Therefore, they may become a lower priority, particularly because there are only one or two speech or language therapists attached to a service.
In addition, the pieces of equipment can appear to be quite an expensive outlay. It is a pity that the health economists are not doing a slightly more imaginative model because good communication could, if properly costed, prove to be cost-effective because we would be taking good decisions more quickly.
Baroness Chapman: This group of amendments is designed to protect people who are unable to or have difficulty in communicating verbally, whether they lack mental capacity or not. Every effort must be made to ensure that they have the opportunity to "speak" by their usual means. That may not mean speaking with their voice; it may be a speaking computer linked to a wheelchair—that is, if a person is not in his wheelchair, he has no voice. It may be a symbol board where an interpreter is required.
People must not be judged as having no capacity because professionals did not avail the patient of every opportunity. Many medical professionals have little or no disability equality training. Although experts in their chosen field, that does not mean that they will have any knowledge of the many non-verbal communication methods now available. We must never forget that healthcare professionals are like the rest of society: there are good, bad and indifferent ones. As with the rest of society, some will be comfortable and relaxed and make every effort to communicate. Others will be uncomfortable, embarrassed and unsure of how to interact, perhaps with preconceived ideas.
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7 p.m.
Those are the two ends of the spectrum and people will inevitably fall between them at varying points. The amendments make it clear what their duties are, so whatever the background the process will be clear.
Lord Rix: Speaking from a personal point of view, I have a grandson with Down's Syndrome who also has dyspraxia. It is possible that he may have to go through life only signing; words are coming, but he is not yet making sentences. It is essential that such boys, who grow up to be reasonably intelligent adults—but perhaps with a lack of ease of communication—should be given the right to communicate in the Bill.
Baroness Greengross: I would like to speak to Amendment No. 9 in my name, which is also about communication, although on a different point. It would remove the word "general" and replace it with the word "the". That is simply because a general explanation can mean a good explanation in general plain English terms, but it can also mean that we say something to another person that is so general that it is better interpreted as, "I know best and I think you need to take my advice". We can so easily fob people off with a general type of argument such as, "It is good: if you have this operation you're going to feel a lot better".
I am thinking in particular of people in the early stages of Alzheimer's, who can understand a great deal but need a much more explicit explanation of what someone is talking about. We also know that any explanation is a two-way process. It needs to be in-depth: it takes a bit of time, and we need to get the reaction of the person to whom we are making an explanation. The word "general" makes the provision open to bad practice: it would be good if it were removed and replaced with "the", so that it is just an explanation.
Lord Alton of Liverpool: I support Amendment No. 6 moved by the noble Baroness, Lady Barker, and also the amendment spoken to by my noble friend Lady Chapman. Earlier in our proceedings, I talked about the importance of continuity of treatment. The Minister discussed speech therapy, which is an issue close to my heart; we discuss it a great deal at home because my wife is a speech therapist in the National Health Service, specialising in the care of people— mainly adults—with disabilities. She often talks about the importance of learning to communicate in ways other than verbal communication, even though she is a speech therapist.
I have a friend who regularly visits someone in a hospice who was believed to have no ability to communicate. It was ultimately established through perseverance that just by a system of blinking of eyes he was able to communicate a great deal. He and his fellow patients have developed methods of playing games with one another, and it was therefore possible to create a way of penetrating the darkness in which his life had been until that time.

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Where my noble friend talks in her amendment about the,
"necessary support for interpretation",
she has an important point to make that we should accept and which goes further than the Bill's current provision. All of us who have forgotten our PIN numbers have a great deal of sympathy with the points made by the noble Baroness, Lady Barker.
Clause 3(1) sets out the circumstances in which a person is to be regarded as unable to make a decision for themselves. Amendment No. 8 would clarify the circumstances in which a person is to be regarded as unable to communicate his decision. It requires those assessing capacity to exhaust all means of allowing the person under assessment to communicate his decision. Those of us able to communicate with ease are often too quick to judge others who have communication difficulties as unable to communicate, when often all that they require is help and support with the use of some form of communication aid.
The Joint Committee, when considering the draft Bill, recommended codes of practice that,
"should state clearly that all relevant parties must use appropriate strategies to maximize the chance that persons will have the capacity to make decisions. This might include using specific communication strategies, providing information in more accessible form, or treating an underlying mental disorder to enable a person to regain capacity".
That principle of every possible means of allowing someone to communicate their decision should be exhausted and enshrined in the Bill. It is too important to be left to codes of practice. Even if the exact words in Amendments Nos. 6 and 8 are not acceptable to the Minister, I hope that she will go some way to accepting the arguments put forward.
Lord Walton of Detchant: I wish to support the principle set out in Amendment No. 8, which is grouped with Amendment No. 6, if only because a great many different kinds of communication aids are now available.
To take the most extreme example, there is a rare neurological condition called the locked-in syndrome, where the patient is totally incapable of writing, speaking and communicating in the standard way. However, while being extensively physically incapacitated— all four limbs are paralysed—they are able by movement of the eyeballs to activate electronically controlled equipment that enables them to communicate, often with great skill. For that reason, it is crucially important that a few additional words, as in Amendment No. 8, should be included in the Bill.
Lord Carter: I put my name to Amendment No. 12.I can be brief, as all the arguments have been expressed extremely clearly. We can all agree that, while we need all the communication support possible while the person's capacity is being assessed, it is equally important that, once they have been assessed and been shown to be incapable or incapacitated, they should have the same
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help with their communication. Amendment No. 12 would mean that people who lack capacity have access to communication support when decisions about their lives are being taken. That will help to make sure that they are at the centre of the decision.
I was intending to quote recommendation 70 from the Joint Committee until the noble Lord, Lord Alton, did so. I will say as a fallback that, in the unlikely event that the Minister is unable to accept the amendments, I hope she will spell out clearly what will be in the code of practice.
Baroness McIntosh of Hudnall: I add my support to what has been said on the matter, to which I alluded at Second Reading. The issue that has come up that has not been stressed is the value and importance of time. There are many aids to communication of various complex and sophisticated natures, but the most important of all is time, which is often the most costly and the thing that people are most unwilling to devote to the difficult business of assessing.
It is not just in the assessment of people's capacity but, once some capacity has been established, in the drawing out of what can be achieved by the application of that capacity. It would be helpful if the Minister could say in what way stress can be laid either in the Bill or in codes of practice on the importance of devoting sufficient time of service providers to establishing a means of communication and then using it.
Earl Howe: I support the general theme of the debate and in particular Amendment No. 6, where my name appears. I speak also to Amendment No. 14 in this group. I would like to spend a moment on the meaning of the phrase, "reasonably ascertainable" in Clause 4(6).
The information that is reasonably ascertainable will vary for different people in different situations. A doctor treating an unconscious patient in A&E may have to act with speed and therefore may not be able to take much time to ascertain what information is available about the person's beliefs or past wishes and feelings. On the other hand, a carer looking after an incapacitated person at home may have plenty of time to gather a great deal of relevant information about that person as a guide to where the person's best interests lie.
The point here is that what is "reasonably ascertainable" needs to be defined by reference to the circumstances that pertain in a given situation, not by reference to whether information is or is not theoretically available in some way. A doctor needs to know that in a dire emergency he can safely treat someone without falling foul of the law and without risk of being sued by the patient if and when he recovers. He does not want the patient to wake up and say "My telephone number was in my pocket. If only you had read it and taken half a minute to telephone my wife you would have found out that I am a Christian Scientist and that it is against my beliefs to accept conventional medical treatment. So I am going to sue you".

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Professionals and unpaid carers need to know exactly where they stand in relation to the law and what they are expected to do to comply with it. This was a point made by the Joint Committee in its scrutiny of the previous draft Bill. I am not sure that, particularly for people who are not lawyers, the phrase "reasonably ascertainable" on its own provides the necessary signal that what is reasonably ascertainable in one situation may not be reasonably ascertainable in another.
Can the Minister assure me that the Bill as worded does not give rise to the kind of hazard I have described? Can she further assure me that while no doubt there will be appropriate guidance on these matters in the code of practice, there is no need to qualify the phrase "reasonably ascertainable" on the face of the Bill in the way that the amendment proposes?
Baroness Masham of Ilton: Following on from the points raised by the noble Earl, Lord Howe, about the phrase "reasonably ascertainable", I hope the Minister can assure me that if the information about a person is not obtainable, the doctor will still treat that person. Otherwise it might be too late if the doctor waits for information that is not obtainable.
Baroness Ashton of Upholland: Perhaps I may begin in the reverse order because it will be useful to deal with Amendment No. 14 and the issues raised by the noble Earl, Lord Howe, and the noble Baroness, Lady Masham. It is my understanding that the situation would be as the noble Baroness, Lady Masham, described: that the doctor would treat the patient. Part of what we are trying to do with the Bill is to make it quite clear that doctors are covered when providing treatment. The phrase "reasonably ascertainable" is specifically designed to cover a range of circumstances. Where a patient is unconscious and the doctor is worried that his life is in danger, the medical staff would not waste time looking through the patient's pockets for a phone number; they would treat the patient and deal with such issues later.
The noble Earl has raised an important point. I shall certainly ensure that we clarify that in the code of practice. I shall look again at the wording and make sure it is absolutely right. I am grateful to the noble Earl and the noble Baroness for raising the matter. I am quite confident that that is what we intend and I shall make sure that that is what happens when we deal with it.
I am at one with noble Lords in recognising the importance of communication. Having spoken to the noble Lord, Lord Alton, whose wife is a speech therapist, I recognise that speech therapists often talk about different forms of communication. Indeed, the children, young people and adults with whom they are dealing often find alternative methods of communication too.
I accept completely what the noble Lord, Lord Rix, said about his own experience with his grandson, who I believe is called Robert
Lord Rix: He is.
7.15 p.m.
Baroness Ashton of Upholland: I hope he is well.
Noble Lords have a great deal of experience in these issues and they know the importance of communication. We are very clear that we do not want people to be thought to lack capacity where the issue is one of communication—I believe that that goes to the heart of what noble Lords are looking for— and, indeed, where efforts are insufficient to help individuals understand what is happening and to communicate in return.
We amended the Bill in another place and I shall take a minute to go through what we have done. I want to ascertain how noble Lords wish to deal with this and offer them an opportunity to consider again. My premise is that the Bill is probably strong enough in the areas that noble Lords are concerned about and I shall deal specifically with the issues raised in each amendment. As I do so, I shall seek to address the underlying questions that noble Lords have raised about training, support and the code of practice.
As noble Lords will know, Clause 1(3) states:
"A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success".
That is, of course, about—and includes— communications support. That principle is built upon in Clause 3(1 )(d), which makes it clear that a person cannot be considered as being unable to make a decision for himself if he is unable to communicate his decision by talking, using sign language or any other means. It is important to point out that this goes further than the Adults with Incapacity (Scotland) Act 2000.I know that some noble Lords have studied that Act and are interested in whether comparisons might be made.
In another place on Report there were some helpful representations from all sides of the House and from the Making Decisions Alliance, to which I pay tribute in this particular context as well as many others. We have brought forward an amendment to complement the requirements for communications support with a provision about helping a person to understand. The new Clause 3(2) provides that:
"A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand a general explanation of it"—
I should say to the noble Baroness, Lady Greengross, that I shall come to the meaning of "general" in a moment—
"given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means".
The purpose of the subsection is to make it absolutely clear that lack of capacity cannot be assumed simply because someone cannot understand a complex explanation of a matter. Instead, the particular needs of the person who may lack capacity should be considered and the information presented and explained accordingly. As noble Lords have indicated, that might include picture boards or audio tapes; it might mean speaking slowly or in different or simple language. The provision is deliberately extremely far-reaching and encompasses what I believe noble Lords are seeking to achieve.

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The provisions in the Bill make it clear that no one should be treated as being unable to understand the information relevant to a decision and, in turn, be thought to lack capacity under Clause 2(1), merely because they have communication difficulties.
I should add that the draft code of practice contains further detail and guidance on the provision of communication support. Pages 18 and 19 of the code contain simple advice such as taking time to be with someone and getting to know them—a point made by my noble friend Lady McIntosh—as well as explaining the more complex approaches such as the use of electronic aids and language experts.
So, starting from that premise, that is what we are seeking to do.
I am very grateful to the noble Baroness, Lady Chapman, for the time she has taken with me today to talk through some of the issues, as well as discussing our cats, as I recall. Amendment No. 8 is, in a sense, a redrafting of the provisions for communications support. I contend that the existing reference to communicating by talking, using sign language or any other means is already extremely broad. It not only incorporates what is in the amendment but it retains flexibility. We are specifically seeking flexibility to take account of changing technology and so on.
The noble Lord, Lord Walton, referred to locked-in syndrome and the ways in which someone may be able to communicate using technology as well as by physical means. We are keen not to rule anything out because it is very important to enable that to happen. I accept completely the principle behind Amendment No. 8 but we believe that our wording gets us further than the wording of the amendment, for the reasons I have indicated.
As to Amendment No. 9, I understand entirely the concern of the noble Baroness, Lady Greengross, that the use of the word "general" in Clause 3(2) might allow people to give a cursory or inadequate explanation. I reassure the noble Baroness and other noble Lords that that is not the case.
The clause refers to a "general" explanation because it is trying to ensure that people cannot be treated as lacking capacity merely because they cannot understand a complex explanation, or perhaps one full of medical jargon. The clause requires that the relevant information is explained in a way that is easy for the person concerned to understand.
It should be clear, too, that this provision is not about the requirements to obtain consent or explain treatment; it is about when you regard someone as lacking capacity because they do not understand. It does not mean that doctors have to explain in only broad brush terms. Instead, where a person does not seem to understand an explanation that a doctor would normally give, the doctor must then consider whether that person can understand a general explanation of it in such a way as is appropriate. That is where the use of the word "general" comes in. If not, then that person may lack capacity.
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So deleting the word "general" removes that middle step—the obligation to give broad, clear explanations. Deleting the word could mean that people might be regarded wrongly as lacking capacity simply because they cannot understand a complex explanation. It is where the word "general" fits and how it is used that is important.
But I understand the concerns and we will ensure that the code is amended to include further detail and guidance on that matter.
I turn to Amendments Nos. 12 and 14 which ensure that appropriate communication and support are given to help the person concerned participate as fully as possible in decisions affecting them and to communicate their present wishes, feelings, beliefs and values. Of course we accept that it is important to make sure that every effort is made to help people express their wishes and feelings.
As I have explained, the Bill already contains strong provisions for communication support within Clause 1(3). That applies throughout the Bill. Clause 4(4) provides that a person making the best interest determination,
"must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him".
It is a very broad obligation and it includes the provision of appropriate communication support.
It is also worth saying that, recognising the importance that we have placed on this, I discovered that the Department of Health set aside £12 million for the training and awareness programmes for the Bill for health and social care practitioners. Within that there will be work done on the importance of communication support and training carers to communicate effectively with people with impaired capacity so that we can spread good practice, but also ensure that we have that cultural and awareness shift that the Bill and the code seek to achieve.
My contention is that we have very broad provisions which apply throughout the Bill and which enable us to accept that technology or other changes may take place, and that the word "general" is positioned correctly for the specific use of the Bill and that we take on board the points made about the critical nature of communication, the time needed to achieve it and the time needed to spend with people. On that basis I hope that noble Lords will feel able to withdraw the amendment.
Baroness Barker: I similarly begin by dealing with this group of amendments in reverse. I was very encouraged by the response of the noble Baroness to the point of the noble Earl, Lord Howe. It is extremely helpful and welcome that the Minister will make those clarifications in the codes of practice.
I was also relieved to hear what the noble Baroness said, particularly in response to the noble Baroness, Lady Chapman. I believe that the big areas of concern for many of us are those forms and types of

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communication which take time, as the noble Baroness, Lady Mcintosh, said, and where interpretation is a key factor to understanding.
I did not think that the Minister's response to the noble Baroness, Lady Greengross, was quite good enough. The opposite of "complex" is not "general". An explanation can be simple and specific—I am taking the Minister on as regards semantics. The drafting of Clause 3(2) is not good enough. The point of the noble Baroness, Lady Greengross, was right: it is possible to give a simple, specific explanation to somebody; it is not good enough to give them a general explanation. The Minister is wrong and the Government should look again at the drafting of that paragraph to address the concerns of the noble Baroness.
Baroness Greengross: The noble Baroness, Lady Barker, has said more or less what I was going to say, except I ask the Minister if she could think of another word—"general" is the wrong word. While I am happy not to take this any further now, we have not had a satisfactory answer. There is something wrong there which needs to be thought about further. I would like to put a marker down and return to it later.
Baroness Barker: I go back to the illustration that I gave at Second Reading about explaining injections to people who have learning disabilities. There are different ways in which one can communicate what an injection is, which are quite specific but are delivered in different ways so that different people can gain an understanding of them.
I take what the Minister said about Amendments Nos. 6 and 8.I am heartened by what the noble Baroness said about training. Earlier on in our debate, the noble Baroness, Lady Finlay, talked about funding for communication being in silos. I think I talked about best practice being in silos. In some departments you find good practice in communication. Often where there is the biggest need for communication and training, it is in general areas such as primary care. It is the people who do not on a day-by-day basis have to deal with people who lack capacity who are the ones who need to have the training and to build up the best practice. That is the case not just within health but is found more widely.
It would be good to know from the Minister exactly what the thrust and emphasis of the deployment of those resources are, because it is more effective to concentrate them in other areas. But I welcome many of the Minister's statements and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Andrews: I beg to move that the House do now resume. In doing so I suggest that the Committee stage resume not before 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

A27
7.29 p.m.
Lord Baker of Dorking Lord Baker of Dorking asked Her Majesty's Government what proposals they have to improve the A27 between Chichester and Eastbourne.
The noble Lord said: My Lords, as it is not customary for somebody introducing a debate of this sort to speak at the end of it, may I thank those noble Lords who are going to speak in anticipation of what they will say?
I will not hold the Minister personally responsible for the apologies of delays and inaction which he will utter. I do not suppose that he knows this road. He is a spokesman for his department and the Highways Agency, and the fact that he does not know this road will mean that his chances of living to a ripe old age are greatly increased, as this is the most dangerous road in southern England of its type. In the last 10 years 21 people have been killed on this road and 103 seriously injured. There have been many other serious accidents involving light injuries.
It was only last year that I read in the local press of an accident in which the driver got three years in gaol. He was tailgating, came out, overtook dangerously and crashed into a taxicab, and the taxicab driver was killed. In the taxicab were four children with special educational needs. One boy had his pelvis broken, and a girl had serious back injuries. These gruesome details of accidents, alas, are all too common in our local newspaper, and it really is very distressing. This is a dangerous road, and the level of accidents is totally and utterly unacceptable.
We lived in this part of the world more than 30 years ago; we came back to live in it 10 years ago, and in that time, virtually nothing has been done of a significant nature to improve the road between Lewes and Eastbourne. This is the road I wish to concentrate on this evening.
There should be a dual carriageway between Lewes and Eastbourne. There was not one 30 years ago and there is not one now. Why is this road so dangerous? First, it is narrow, so drivers become impatient. That, I am afraid, is human nature, and you cannot change that. Secondly, it is hilly—there are lots of blind hills and curving bends. The junctions are dangerous for all the various villages. The Selmerston junction, when you come to the A27, is completely blind for 30 yards—it is on the crest of a hill. When you look the other side, cars are speeding up because they have about 200 yards of straight road, and to go out from that junction is to take your life in your hands. Two years ago, two girls were killed at that junction.
There are several dangerous junctions. The Middle Farm complex is a popular shopping centre and local farm. To turn out from that on to the A27 is highly dangerous. The noble and learned Lord, Lord Lloyd of Berwick, hoped to speak in this debate, but he has flu. He asked me to tell the House that he had an accident coming out of that turning. A car ran into him and caused over £4,000 worth of damage to his car.

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Thirdly, the A27 is dangerous because it is very busy. Some 30,000 vehicles use it a day, rising by about 1,000 vehicles a year. It is the main coastal road along the south coast of our country—the main east-west road. The next east-west road is the M25,40 miles away. Over the years, this road has received various patchwork jobs, which were quite helpful in some respects.
In the 1970s, the Lewes bypass was built. I remember how many people opposed it then, but thank heavens it was built. In the 1980s, the Brighton bypass was built. That was strongly opposed, but it is blessing to all the residents in the area. Two years ago, the Eastbourne bypass was built. The gap in between lies between Lewes and Eastbourne.
This is a very beautiful part of the world, an area of outstanding natural beauty. That is why so many ex-parliamentarians go to live there. The residences of a former Labour Prime Minister and a former Chancellor of the Exchequer are very near to the road, and several people who will be speaking in the debate live close to it.
The first consideration in improving the road is safety. The second is commerce. This is a busy commercial road. At the Eastbourne end, the local Member of Parliament, Mr Waterson, told me the other day that he was very concerned at the number of businesses leaving Eastbourne because of the transport infrastructure. It is just not up to it. That view was reinforced when I spoke last week to the planning officer of the Wealden District Council. It is in receipt of conflicting advice from the Minister's department or, rather, the department he is answering for tonight— Mr Prescott's department. The housing part of Mr Prescott said to Wealden, "Please build 3,300 more houses and some light commercial development". The transport part of Mr Prescott said, "I am sorry, you can't do that because the transport infrastructure is inadequate". So there are two very conflicting views from the department. It is not a question just of two Jags but of two mouths. So what does Wealden do? It cannot build the houses because this road is utterly inadequate.
In 1996, there was a proposal for a dual carriageway. That was withdrawn, unfortunately just before the election in 1997. As a result, the Government asked the South Coast Corridor Multi-Modal study, which they set up, to examine this and make recommendations. It made three recommendations: there should be a bypass to Selmerston, a bypass to Wilmington and a dual carriageway over the railway crossing at Beddingham. We have had no news about the Selmerston and Wilmington bypasses for the past seven years, which is disgraceful.
As regards the Beddingham flyover, the proposal made by the study was for a dual carriageway over the railway. There was public consultation, and 58 per cent of local people approved of the dual carriageway. In a later survey, carried out only last year, that figure had risen to 95 per cent. So there is strong local support for a dual carriageway over the level crossing. Sure enough, the Government produced plans. Suddenly, they changed, and there was no dual carriageway but
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a most extraordinary road, with two lanes going one way and one lane the other way. I did not think we built roads like that in this day and age. There are two lanes going up the hill and one lane down. It might have been better to have two lanes down the hill and one lane up, but much better to have had four lanes.
My question to the Minister—and his officials had better start scribbling the answer—is who made the decision to change from four lanes to three? That is what we would like to know. Was there local pressure? It certainly did not come from the populace locally. Was it because of cost? The extra cost is £27 million. Hardly anything has been spent on this road in the past 40 years, and an extra £27 million would improve the crossing enormously.
Why is it important to improve the crossing? This is the main road to the port of Newhaven. Since the proposal was withdrawn, it is possible that the East Sussex incinerator will be sited at Newhaven. In that case, there will be a huge increase in traffic of dumper lorries, hour by hour, day by day and week by week, on this already congested road. This section of the road is already 25 per cent above the trigger in the Highways Agency for a dual carriageway.
Why did the number of lanes go from four to three? If the Minister says it was because of environmental considerations, let him consider that answer very carefully. The Highways Agency owns land and may make it a dual carriageway. I hope that the Minister will not give the reason as environmental considerations, because what is the difference between a three-lane road and a four-lane road, environmentally, over a level crossing? It must be marginal. I very much hope, even at this late hour, that there will be a change of heart and we will have a dual carriageway over the level crossing.
Similarly, I hope that we will have proposals for a dual carriageway bypassing Selmerston and one bypassing Wilmington, because that really needs doing. If the Minister says, as I am sure he will, that this will take some time, let him seek out what the public really think. From time to time, the Government have had a touching fondness for democracy and have introduced the practice of holding referendums. I suggest that he conducts a referendum of Wealden District Council, Lewes District Council and Eastbourne Borough Council and asks one simple question: should there be a motorway between Lewes and Eastbourne? Let us really test what local people think about this. I am fairly convinced that if a referendum was held, there would be a resounding "Yes" to the idea of a dual carriageway, because it would mean a safer road.
This is a very beautiful area, and there must be careful planning to ensure that the environment is not scarred. But people said that about the Brighton bypass. No one can say that the Brighton bypass scars the South Downs, no one can say that the Eastbourne bypass scars the plains to the north of Eastbourne, and no one can say that about the Lewes bypass, so I am sure that a solution can be found.
I wrote to the Minister in the Commons in July 2003. He said that proposals were pending, and would be issued fairly soon, on bypasses to Selmerston,

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Wilmington, Arundel and Worthing. I have not touched much on the road to the west, which runs from the end of the Brighton bypass to Chichester. It is really scandalous that nothing is done about that—that there is no bypass to Arundel or Worthing. In the summer months, the congestion on that road is quite intolerable.
My real purpose in holding this debate tonight is to focus ministerial interest on this road. There is no ministerial interest in this road whatever; there are no Labour Members of Parliament around. If this road had been in the north of England, in an area of unique outstanding beauty, we would have had a dual carriageway 40 years ago. It has lacked champions; it has a champion in Eastbourne but I am afraid that in Lewes it does not have a champion. The Member of Parliament for Lewes has been very consistent through his political life: he has resisted any major improvements to the road, saying that there should be safety measures. Safety measures? What does he mean—that people should drive at 20 miles per hour and that there should be chicanes on a road that takes 30,000 vehicles a day? That is unrealistic. The only realistic answer is to have a dual carriageway. I hope that the debate this evening will move that possibility a little bit further.
7.40 p.m.
Lord Rea: My Lords, I thank the noble Lord, Lord Baker, for raising this matter. As he made clear, this is not merely a parochial Question. Like him, I declare an interest, since my cottage at Beddingham, which is sadly not a stately home, lies only a quarter of a mile south of the A27. In fact, within a mile of the 20-mile stretch of the road between Polegate and Brighton, as the noble Lord said, are the homes of 12 noble Lords, to my knowledge. The reason for that high Peer density is not far to seek: as the noble Lord pointed out, the landscape and the villages in it are uniquely attractive, and noble Lords have excellent taste. Two noble Lords, no longer in the House, own sizable chunks of that landscape.
However, noble Lords are not the only ones who cherish that stretch of countryside. The area is already classified as an area of outstanding natural beauty and, all being well, will shortly be upgraded to national park status. Every weekend trainloads, busloads and carloads of walkers come to enjoy the Downs, which are sometimes called the "lungs of London".
To declare another interest, I have been a member of the A27 Action Group for 10 years. It was set up originally to lobby against the major six-lane trunk road scheme parallel to the A27, linking the Channel ports to Honiton, there joining up with the M5. Together with the statutory environmental agencies we scotched that one, although the cost of the scheme and the possible change of government probably played a part. Since then the south coast multi-modal study mentioned by the noble Lord was carried out, with recommendations of dual carriageway throughout the A27 and several bypass schemes; but that was rejected in 2003.I regret, given its name, that the scheme did not recommend upgrading
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and modernising the south coast railway, so that freight, lorries and east-west road users could be attracted on to it, thus relieving some of the traffic on the road.
The Highways Agency, now back to the drawing board, is presently working on several schemes to cut bottlenecks at Chichester, Arundel, Worthing, Beddingham, Selmeston and Polegate. The Beddingham plan, as described by the noble Lord, is to build a bridge over the railway and enlarge the road from two to three lanes; that is the most advanced in time of those proposed improvements, with orders and an environmental statement expected shortly. But the public inquiry, due this year, may allow points such as those made by the noble Lord to be considered. I am sure that there will be other requests of Ministers to think again, too.
At present, along with other road users, I suffer the twice-daily heavy congestion into and out of Lewes. Paradoxically, though, I and others also find it very difficult to drive on to the A27 from my cottage or cross it, because of the speed of the relentless traffic at that point. Inevitably, as the noble Lord pointed out, there are many accidents at such junctions. I welcome the improvements proposed at the Beddingham railway crossing but fear that congestion will simply move up to the next roundabout.
There are some improvements, however, which could be made immediately and at low expense to smooth out traffic flow and improve safety. The first could be a speed limit not of 20 miles an hour but of 50 miles an hour on all single-carriageway parts of the road. That is in fact likely to speed up rather than slow down the overall traffic flow, apart from saving fuel and reducing carbon dioxide emissions. All access roads should work on the "left-on, left-off' principle, with sufficiently long lead-in access slip-roads to allow traffic time to speed up or slow down when joining or leaving the main road. There should be bridges or underpasses where appropriate for local traffic, and local lanes and byways should be retained. When road repairs are carried out, for environmental rather than safety reasons, the new surfaces should be made of sound-deadening material, which is now available, even at a slightly greater cost. Tyre noise, or "white noise", is disagreeable and greatly detracts from the enjoyment of the environment.
Purists in the A27 Action Group would like to leave things much as they are, apart from some safety improvements, so as to discourage further growth in road traffic. As a road user I do not share that view, but I hope that any improvements that are made will be, as the noble Lord said, done with sensitivity and with very good design. I hope that my noble friend can confirm that the original concept of a motorway-style six-lane trunk road parallel to the A27, linking the Channel ports to Honiton and beyond, has been firmly and finally abandoned. More freight and passengers could be carried on an improved rail link. Lorries and other through traffic should be encouraged to use the existing M20, M25 and M3 motorway system, which could be improved where necessary. It is actually only

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seven miles longer to Southampton from Dover using the motorways than it is going along the tortuous route of the A27.
7.47 p.m.
Baroness Fookes: My Lords, I warmly support my noble friend in his robust plea for an improved A27, particularly between the Pevensey area and Chichester—although, as he pointed out, he did not dwell greatly on that western part of the road. I do not pretend to his intensive knowledge of the area, but I am a regular user of the road, partly. I suppose that I should declare a non-financial interest as a deputy lieutenant for East Sussex, which takes me frequently into the Lewes area. I also have friends who live outside Arundel and beyond Chichester. So, I have occasion to go from my home in St Leonards along the A259 to where it links with the A27 and thereafter along the A27 for what at times seems its endless length.
It is something of a Cinderella road—though I would not pretend to know who might be the ugly sisters trying to prevent the Cinderella road going to the ball. Certainly it is a somewhat dangerous road; I fully agree there. The trouble is that, for a lot of its single-carriageway length, there is nowhere where it is safe to pass. That does not prevent other motorists passing, and I have seen some near misses— fortunately not accidents—when motorists have been tempted and have fallen for the temptation to pass where they cannot possibly see. That is made worse by the up-and-down nature of the road, which at times restricts the view considerably. There is a real issue of safety here. I hope very much that the Minister will take due account of that.
As regards planning one's timing to go from one place to another, it is virtually impossible to know how long it will take. I always avoid the rush hours because that adds greatly to the journey, but even then it takes very little—perhaps a single breakdown, a very minor accident or a few road works—completely to throw a timetable out.
Going from my home to Chichester, for example, you are very lucky to do it in two hours. It might easily take two and three quarter hours.
Lord Baker of Dorking: My Lords, that is the situation after seven years of Labour government. I am not reproaching my noble friend but the Government.
Baroness Fookes: My Lords, I am glad to hear that.
There is ample scope for making improvements. A dual carriageway from the Polegate area to Lewes would be excellent. I would particularly welcome anything that did away with motorists having to go over the level crossing. I dislike level crossings; I always did, even before several terrible accidents involving level crossings. It seems to me that, as traffic flows grow and one is crossing a level crossing which is widely used by trains, it becomes more and more
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worrying. Frankly, I am always relieved when I have got over from one side of the Beddingham crossing to the other.
I put in a plea for the more western part of the road, particularly round Worthing and Arundel. In places, the roads are not simply single carriageway, they seem to me to be virtually country lanes. That is extremely worrying as traffic increases, as has already been pointed out by other noble Lords.
All in all, there is a case for moving forward on the issue with considerable rapidity, bearing in mind the delays that have already occurred. It seems to me that the Polegate to Lewes stretch has not changed much since I was a girl, and that is a very long time ago. I will not say how long, but certainly one would have expected some progress to have been made in those intervening years. I grew up in East Sussex, and it is a beautiful county. One does not want to spoil or alter the beauties of the countryside. However, it seems to me that road engineers these days have become extremely sophisticated in their ability to construct roads sensitively. If they were given the go-ahead, they could do so in this instance. The question that I hope the Minister will be able to answer tonight is, "Shall we see this in our lifetime, or will it be done long after my noble friend and I are dead and buried?".
7.53 p.m.
Lord Dholakia: My Lords, I am delighted to contribute to this debate. It makes a change from speaking just on home affairs matters in your Lordships House. I need to qualify why I am doing so. But before I do so, I thank the noble Lord, Lord Baker of Dorking, for initiating the debate. I agree entirely with the analysis that he offered of the A27.
When I came to Britain I settled in Sussex, first in Brighton, where I served as a county councillor, then in Hay wards Heath and finally in Coldwaltham, which is situated in the foothills of the Sussex Downs. I know the county well and I frequently use the major roads comprising the A23, the A24 and A27. I therefore speak from a "user" perspective rather than from that of an expert on roads and transport.
Let me draw an analogy with prisons: the more you build, the more quickly you fill them. We have learnt through bitter experience that building better roads is important, but that alone does not solve traffic problems. There are so many other factors that we need to take into account and at the heart lies the need for a proper transport infrastructure for the country as a whole. We should add to that the need to protect the ecology and the environment of the area.
The noble Lord, Lord Baker, identified the stretch of the A27 between Chichester and Eastbourne in relation to the debate. I know this area well. As a former member of the Sussex Police Authority, and as a Deputy Lieutenant of West Sussex, I frequently visit Chichester for meetings. In addition, I love the theatre and the cathedral of this beautiful city. My visitors always marvel at the beauty of the place. It is a joy to travel on the M27 from Southampton to Portsmouth

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but suddenly it turns into a nightmare when one finds the bottlenecks at various places on the Chichester bypass.
There are many reasons for that, but let me single out two. The city's roads were built during the time of the horse and cart and there are substantial pedestrian areas within Chichester. The other reason is that many of the large retail parks are situated near the bypass, generating additional traffic. Add to that the prospect of a football match taking place at Portsmouth or Southampton and you can imagine the traffic that is generated on that road. On race days at Goodwood and Fontwell the situation is just chaotic. There is an obvious need to ask whether the bypass, which was designed to relieve traffic congestion, can handle all this traffic or whether we need to go back to the drawing board.
The same could be said about the picturesque town of Arundel. The town simply cannot handle the traffic generated and the so-called "bypass" becomes a nightmare. The bypass cannot handle the traffic either. Again, it is a question of two factors: the local traffic and the through traffic generated by the bypass. The only saving grace is that while you are stuck in a traffic jam on the bypass at Arundel you can pass the time by looking at the beautiful castle until such time as the way ahead of you is clear. Some most beautiful places such as Chichester, Goodwood and Arundel cry out for a sensible approach to traffic congestion.
Yesterday we heard the announcement of hundreds of thousands of new homes in the south east of England. It would be helpful to hear from the Minister what will be the impact on roads and local and through traffic in those areas.
A lack of public transport means more use of cars thus adding even more of a burden to our congested roads and, in this case, the A27.I was interested in the comment from the Campaign to Protect Rural England that:
"Sprawling estates, disconnected from jobs and services, which wasted land and generated more traffic should not be allowed".
Does the Minister agree with that comment?
There is no single consensus of what is appropriate so far as dual carriageways and motorways are concerned. There is, however, no dispute that there are serious danger points on many parts of the A27 which ought to be rectified without delay. Let me give an example. I received an e-mail today from Diana Kiehl. She sums up vividly what ordinary people think about the A27, particularly as regards the point when it passes through her area of Worthing. The e-mail states:
"A long standing problem exists on the stretch of the A27 which passes through Worthing. A very heavy volume of traffic becomes very slow moving due to the dual carriageway becoming a single carriageway and speed reducing to 30 mph through this urban area. At peak times this problem is really bad".
That story is repeated by almost all who use that stretch of the A27.
Lord Baker of Dorking: My Lords, will the noble Lord remind the House, and tell the Minister who is not familiar with this road, that when the road passes
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through Worthing it goes through a suburb? It is a major road in a suburb. This is the major east-west south coastal road going through a suburb comprising timber framed houses in north Worthing. There should certainly be a bypass north of Worthing. I hope that the Minister will address that point which was mentioned so eloquently by my noble friend.
Lord Dholakia: My Lords, the noble Lord is absolutely right. I refer not only to the problem that he has identified but also to that of people who live in that area who have left their houses. Those houses are blighted as no one knows what will happen in relation to roads in that locality.
The journey that I have so far talked about takes us from Chichester to Shoreham and through the beautiful Sussex Downs to Lewes, which is another market town with narrow streets more akin to Victorian times than the present day. However, this is precious to the people of Lewes. Therefore, I decided to speak to my honourable friend Norman Baker VIP for Lewes. Over the years, he has campaigned constantly for improvements to the road, and he has helped to introduce a number of features to reduce accidents. However, he does not accept that dual carriageway roads are safer than single carriageway. He is worried that a dual carriageway would also increase overall traffic levels, as new roads always do. He is concerned that at the Lewes end there are serious capacity problems.
Overall, my honourable friend believes that arguments put forward for a dual carriageway, such as safety, congestion and economic development, are flawed. Those are his views. There is no proper consensus on what is appropriate and what is desirable. Different towns along the road pose different problems. If I were to talk to my colleagues in Eastbourne, they would completely disagree with my honourable friend in Lewes. We must accept that the A27 is a serious issue that deserves serious thought.
We must work to ease bottlenecks, which are choking some of the most beautiful places in Sussex. We must ensure that there are immediate improvements, so that accidents are minimised. We must consult local communities on the ecological and environmental impact of improvements. I do not disagree with what the noble Lord, Lord Baker, said, that once the roads are in place people will appreciate what has been done for their benefit. The proposals for the south-east sprawl of new houses must spell out the impact on transport. Finally, we must take a holistic approach to transport infrastructure so that rural communities are not isolated.
8.2 p.m.
Earl Attlee: My Lords, I am grateful to my noble friend Lord Baker of Dorking for his skilful and comprehensive introduction. I remind the House of my interest as the president of the Heavy Transport Association.
My noble friend presented his case far better than I could have done; and I do not propose to argue for or against it. That does not mean that it is not an

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appropriate question; far from it, because the same problems will arise up and down the country on many similar routes. Large numbers of primary routes have insufficient capacity and cause misery for the local population and, worse still, some stretches of routes have a consistently high accident rate. I say "consistently" because every year on each stretch a similar number of people are killed or seriously injured. The Minister should carefully examine the EuroRAP report that covers this point.
I am not saying that the Government are doing nothing; there is some good news. For instance, on the A45 Coventry ring road, in 1997–99 on that 20 kilometres there were 48 killed or seriously injured in accidents. By 2000–02, that had been reduced to just 14. That shows what can be done by extensive route action, in other words civil engineering works, just like the ones proposed by my noble friends.
The Highways Agency does a good job, but it will always be limited by government funding and the decisions of Ministers, as we have said this evening. Highways Agency officials have the ethos of reducing congestion and improving journey times and safety. The noble Lord, Lord Rea, identified the possibility of improving rail services, which is probably why his right honourable friend Mr Prescott set up the SRA, then scrapped it within a few years. The noble Lord is right, if local rail services can be improved, pressure on roads could be reduced. However, rail cannot meet the needs of short-distance freight associated with local business. Nor is it flexible enough for those supplying services that support industry and consumers.
The noble Lord, Lord Rea, also suggested reducing the speed limit to 50mph to increase the flow rate. A few years ago, I would have suggested that his contribution would benefit from further research, but after the experience of the M25 with a 40mph speed limit at Heathrow, he may well be right. The Government will also have to consider whether the current 40mph speed limit for HGVs on single carriageways is appropriate. The Minister should consider whether 50mph might be more appropriate when the road is suitable.
The noble Lord, Lord Rea, and others talked about AONBs and by implication SSSIs. This is a frequently encountered difficulty with new road construction schemes—it always seems that an SSSI is located just where the bypass is wanted. My noble friend Lord Baker described the dangers of this road. I am not familiar with it, but it seemed that as well as being dangerous it is a scenic route.
Noble Lords mentioned level crossings. While grade separated crossings on trunk routes are desirable because they eliminate choke points on primary routes, I am not sure that the RMT policy of replacing all level crossings on high speed lines is sensible. Many more lives would be saved by having grade separated junctions on all trunk roads.
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My noble friend Lord Baker hopes that the Minister will offer a solution to the problems on the A27. For the reasons discussed tonight, I hope that he does not hold his breath.
Lord Baker of Dorking: My Lords, before my noble friend sits down, with his great knowledge of the heavy vehicle industry, does he agree that a dual carriageway with properly engineered intersections is inherently a safer road than a single track, curving, hilly road such as the A27?
Earl Attlee: My Lords, my noble friend is absolutely right. Furthermore, pollution from heavy goods vehicles would be drastically reduced, because with an awkward single carriageway, the vehicles must work much harder.
8.7 p.m.
Lord Davies of Oldham: My Lords, I am grateful to the noble Lord, Lord Baker, for introducing this interesting and very specific debate, and for the considerable interest that it has generated in all parts of the House on the question of this road. Although I would not call myself familiar with the A27, I know it well enough and am well aware of the features to which he has drawn attention. It is a classic road where improvements made to limited sections of it only throw into sharper contrast the problems where improvements have not been effected.
Let me disabuse the noble Lord of one notion. I do not have the statistics immediately to hand, but I very much doubt that the A27 is the most dangerous road in southern England. I understand the passion with which he puts his point of view and agree entirely that safety is a very important issue with regard to roads. However, on reflection he will recognise that we need to improve a very large number of roads in terms of safety features.
The noble Lord made a comment about other parts of the country that might be represented by more Members from my party. Two years ago, the BBC identified in a major programme what it called the most dangerous road in the country. It has now been surpassed by another road in the north of England, but it was the road that linked Manchester to Sheffield north of the Snake Pass, the A635. It had a single carriageway in each direction with small numbers of passing points. I would like to enlighten the noble Lord on the reason why you have two lanes going uphill rather than down. It is more important to be able to pass slow-moving and very heavy vehicles going uphill, when their speed is necessarily reduced to a crawl, than when they are going downhill. That road was reckoned to be the most dangerous in England, and its statistics compare woefully with the A27. We must not exaggerate the point, but I congratulate the noble Lord on emphasising the safety factors. They are prominent in our consideration with regard to improvements of the road.
Let me begin with the good news first, if only because, on time-limited debates, I am always terrified that I have not reached the main message before my

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time has expired. We recognise the importance of the point made about the crossing over the railway line. That is why we are committed to a scheme that will start in 2006–07 to have a bridge over the railway line. I recognise that the noble Lord would like it wider and grander than it is to be, but it is to be a three-lane road over the railway line. It will massively reduce congestion, which queues up whenever trains go past on the level crossing. We hope that it will improve the railway service too, by clearing the issue so far as the road is concerned. It will also improve safety factors; we all know that there are inherent dangers attendant on crossings on the level between road and rail.
There has been strong pressure from the Health and Safety Executive for the removal of the level crossing, and also locally for both a dual carriageway and a single carriageway solution. It is true that our solution is a compromise. It is to have a three-lane carriageway with a westbound climbing lane for the new road. We have to balance competing demands for traffic movement against environmental sensitivities. The noble Lord was somewhat dismissive of those local sensitivities. He has the great advantage of speaking in this House, but other Members speak in the other place on the basis that they win support from their communities. He will know that at least one other Member takes a diametrically opposite view to his on the matter. He will forgive me if I give way to a certain democratic regard for the sentiments expressed by a Member of the other place representing his constituents, even though the eloquence of the noble Lord has been taken into account in weighing the balance.
Lord Baker of Dorking: My Lords, will the Minister give way?
Lord Davies of Oldham: My Lords, the noble Lord will take time away from my speech if he interrupts.
Lord Baker of Dorking: My Lords, does the Minister recall that I said that, when there was public consultation, 58 per cent of the local people wanted a dual carriageway over the level crossing? In another survey last year, that rose to 95 per cent. If he wants to talk about democracy, let us have a referendum in the local area to decide on that issue. I will not intervene again but, while he is talking about this road, who made the decision to reduce it from four lanes to three? Was it the Highways Agency or a Minister, and why? We have the width, and four lanes or three lanes are environmentally virtually the same.
Lord Davies of Oldham: My Lords, the noble Lord says that it is environmentally the same, but that is not the view of others. We have to take those issues into account. The road is three lanes rather than four to minimise the environmental effect. He may attest that he has substantial public opinion on his side, but we know the strength of local pressure groups and local opinion on environmental considerations. If one concern unites the nation at present, it is the desperate concern—although we need to improve transport by building better roads and improving roads that we
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have—about the extent to which we are obliged to concrete over our environment. Our country is awash with large numbers of people who hold that view.
We must strike a balance between environmental considerations and road building, particularly in an area such as this. As my noble friend Lord Rea indicated, not only is this an area of outstanding natural beauty; it will be a new national park if the current boundaries for the proposed South Downs national park are accepted. So, these are issues which we have to balance.
Our evolving strategy for the A27/A259 trunk road is principally based on decisions which we took following the multi-modal study, to which reference has been made by a number of noble Lords tonight. The study was commissioned by the Government to address the long-term requirements of transport, including road schemes. My right honourable friend the Secretary of State for Transport asked the Highways Agency in partnership with local authorities and statutory environmental bodies to look into less environmentally damaging alternative road-based schemes to those recommended by the report. The first outcome of the partnership in West Sussex was a public consultation which we carried out into a package of transport proposals, including road-based and public transport proposals for the City of Chichester, to which the noble Lord, Lord Dholakia, referred. The noble Baroness, Lady Fookes, also mentioned the problems around Chichester.
The public exhibition in November and December last year setting out the proposals was well attended by over 2,500 people. The Highways Agency has currently received 4,000 responses. When the consultation is completed at the end of February 2005 the Highways Agency will analyse the responses and report back to transport Ministers. I know that that is not the rather facile suggestion by the noble Lord, Lord Baker, that there should be a referendum. The noble Lord knows only too well that referendums are conditioned by the nature of the question that is addressed. This is a proper consultation carried out in the framework of the development of roads and I think we shall have more insightful answers as a result of this exercise.
Other ongoing work following the multi-modal decision has been the major studies into the traffic issues at both Arundel and Worthing, which have been informed by extensive traffic modelling of the areas. It is generally agreed that there: is no simple solution to the problem of traffic congestion in these towns. As has been indicated in this debate—the noble Baroness, Lady Fookes, in particular emphasised this—the route of the trunk road is through densely developed urban areas. The noble Lord, Lord Dholakia, also made that point. In Arundel the road separates the old town centre, including the cathedral and the castle, from the more recent mainly residential development to the south of the town. At this location, approximately four out of five of the vehicles which the A27 is carrying are through traffic; that is, both their origin and destination are away from Arundel. On the other hand, the surrounding countryside is environmentally sensitive and borders the South Downs area of outstanding natural beauty. There

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are also other designated sites all round Arundel. The landscape would be seriously affected by an outer bypass of the town. It is for that reason that my right honourable friend reconsidered the issue of the proposal of a bypass for the town. Again, we have to balance these factors.
The Government have asked the Highways Agency, West Sussex and the statutory environmental bodies to look at new proposals for improving the trunk road at Arundel and Worthing. Members from West Sussex County Council met the Parliamentary Under-secretary of State for the Department of Transport in December and were strongly supportive of the joint working at Chichester. If we accept the options for consultation, the next step would be a public consultation to obtain the views of the public and other stakeholders in the region on the way forward for this area.
In East Sussex, complementing and including the major Southerham to Beddingham improvement scheme, the Highways Agency has been working in partnership with the county council and the statutory environment bodies to develop a strategy for the single carriageway length of the trunk road between Beddingham east of Lewes and Polegate, north of Eastbourne. That was the subject of a great deal of the remarks made by the noble Lord, Lord Baker. That study has now been completed and the Highways Agency will be reporting back to Ministers soon with the options for the way forward. If those are acceptable, the next stage will be a public consultation exercise.
There is no doubt that the A27 and the A259 are roads of regional importance. We shall therefore seek advice from regional partners on their priorities for trunk road schemes. They have considered these schemes alongside proposed transport investment by local authorities. However, I take the opportunity of disabusing any notion of the construction of a fresh motorway in this area. I think there was reference to the question of a motorway. Certainly, that is not a realistic proposition.
The Highways Agency has a three-year rolling programme of maintenance and smaller scale improvements to the trunk road. The noble Lord, Lord Dholakia, will be pleased to hear that next month, the construction of a pedestrian footbridge in Worthing will begin as will partial signalisation of the Ashcombe roundabout near Lewes, sometimes referred to as the Kingston roundabout. The noble Lord, Lord, Baker, will know that from time to time the Labour Party Conference is held in Brighton so we all have the opportunity to discover the delights of the A27 and surrounding roads near Brighton and Lewes. I shall join the noble Lord in the delights of the A27 if he will come to some of my northern horrors too and recognise the real difficulties in priority of road expenditure in this country. We shall also consider the development of two existing traffic lights at two locations in Worthing to upgrade them to improve pedestrian safety in the town and one junction, which will have a right-hand turn facility to improve turning for larger vehicles.
I appreciate the point made by my noble friend Lord Rea with regard to road noise. We are aware that the present surface on this quite fast road
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produces in many parts what he referred to as white noise generated by the concrete surface. We intend to tackle that. Work will begin next month on the first stage of the resurfacing of the A27 between Havant and Chichester with quieter road surfacing; so I bring a message about some improvement there. The cost of the scheme will be approximately £1 million in this financial year. The Highways Agency is currently considering a timetable for resurfacing the remainder of this section subject to the availability of funding.
Taken together the above proposals and agreed major road improvements, backed by quite significant investment, are an indication of the Government's policy of developing sustainable solutions to the transport problems of the south coast corridor. Ministers are aware of the myth which can surround the economies of certain coastal towns: that because in the past many compared favourably with other parts of the country they belong inevitably to the prosperous south-east with huge advantages over many other parts of the country. That is not the case. A number of town economies are suffering real deprivation and need a transport system which recognises that fact. We recognise that towns such as Hastings have had a more glorious past. Transport is an important factor. Road structure is of some importance.
We have been concerned to put in considerable investment into the region. The sum of £950 million was announced in December 2004 for investment in this southern region. There are many demands upon those resources but it is a reflection of a commitment of public expenditure on transport which other parties will do well to match. It is a reflection of our determination to ensure that the infrastructure for our economy in these terms is greatly improved.
That investment is not only an indication of the Government's policy of developing sustainable solutions to the transport problems of the south coast corridor but also a recognition of the interrelationship between economic development and transport. That is why we are also concerned to see the intensity of investment in all modes of transport—rail as well as road. Rail comes into the A27 equation; namely, the problem with the level crossing. Many level crossings up and down the country cause us concern. However, few roads of the significance of the A27 have a level crossing over such a significant railway line. I agree that the noble Lord, Lord Baker, has the right to express impatience that the issue has not been tackled previously. However, he indicated to the House that he has been campaigning on the issue over many years, so more than one administration has been involved with regard to seeking a successful solution to the problem.
We have had a most interesting debate. I do not underestimate the difficulties surrounding this issue. One of the problems is the enormous disparity between the standards of certain stretches of the road some of which are high. The noble Lord, Lord Baker, indicated that the stretch which runs past Falmouth, from Lewes towards Brighton, is of a high standard. One cannot think of a sharper contrast in that the same designated road is at the centre of two quite substantial towns to the west as it meanders through Arundel and Chichester.

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But it will also be recognised that we have real problems with widening and creating a significant development to that road. In other parts of the country, it may be that the land does not present such a challenge as in this part of the world. There is little room for manoeuvre around Worthing. The noble Lord will recognise that, unless we are prepared greatly to defile the countryside. Arundel, too, presents that problem. Chichester is also an extremely difficult town to negotiate in terms of road traffic. But I should tell the noble Lord that that is also the case in other parts of the country. Roads which find their ways across the Pennines also find it quite difficult to become triple and quadruple carriageways against a background where the sheer problems and costs of engineering in places such as that are so acute.
So, I wish to put the issue into context and tell the House that the noble Lord has performed an excellent service. He has done it on behalf, as I understand it, of a number of noble Lords who happen to live in the immediate vicinity. There is no harm in that, although I am not sure that we could produce the same force of argument for roads in other parts of the country as there has been for this part. Nevertheless, the noble Lord deployed his case with his customary skill and charm and he has identified the need for the improvements which we now have in train.
I do not have the slightest doubt that I have failed to reassure him on every single point he made regarding this road. But he will take some solace, I hope, in the recognition that along the length of the road we are effecting some improvements and, crucially, a major improvement for the benefit of road users' journey times. I pay tribute to the noble Lord for emphasising early in his remarks that the safety factor should equally be taken fully into account. Towards that end the construction of a bridge over the line of the present level crossing is an important contribution towards that end.

Mental Capacity Bill
8.27 p.m.
House again in Committee on Clause 3.
Earl Howe Earl Howe moved Amendment No. 7:
Page 2, line 22, after "use" insert ", evaluate"
The noble Earl said: This is a probing amendment, because I do not wish to disturb the phraseology of the subsection, which seems to have a particular elegance.
My question relates to individuals with depression. One of the features of those who are afflicted with depression is that they do not view the world in a normal way. They do not experience emotions in the way that others do; their view of life is of something colourless; they are often preoccupied with intense feelings of self-denigration; and they lack hope. In so far as a depressed person is capable of taking decisions, the decision-making process is skewed by those features of their illness. They do not use or weigh information in a normal way.
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Obviously, there are degrees of depression. The most severe forms have obvious outward symptoms. Someone with very serious depression who has delusions and is unable to lead any sort of normal life might well be regarded as lacking in mental capacity. Yet, even those with less serious forms can reach a point where they feel suicidal. The more difficult question is whether and to what extent, for the purposes of the Bill, someone with a less extreme type of depression can be regarded as lacking capacity if, while depressed, they go on to make an advance decision. I do not want to anticipate our debates about advance decisions, but we have to ask fairly tough questions about the interaction between this subsection and the fourth principle in Clause 1, which says:
"A person is not to be treated as unable to make a decision merely because he makes an unwise decision."
The issue is when an unwise or irrational decision becomes an unbalanced one.
An advance decision might in some circumstances have a suicidal intention behind it where the person is in a depressed state. Sometimes that fact will be impossible to ascertain. For example, a doctor may believe from the evidence before him that an advance decision was not simply unwise but was also not taken by the person in a rational and balanced way because the person was depressed when he took it. I realise this is a hypothetical question, but it is an important one— are those sufficient grounds for the doctor to treat the advance decision as null and void for the purposes of the treatment that he proposes to administer? I beg to move.
Baroness Ashton of Upholland: I understand what the noble Earl, Lord Howe, seeks to do. and I recognise that the amendment is probing. We think that the wording we have used incorporates evaluation as well. It is important that part of that is being aware of the consequences of the decision. For example, someone who has an eating disorder may understand that they need to eat to stay alive, but they cannot weigh that and its consequences appropriately. Someone with depression may also be unable to assess and to weigh the information because of their condition.
It is our understanding that if someone were depressed that would be sufficient grounds for a clinician to consider whether an advance decision was valid at all, and indeed whether to treat. When we discuss the role of making the advance decision in writing as we have described—in terms of withdrawal and refusal of treatment and the role of witnesses in that—we might explore the issue further. We think that, in the weighing that we have described in the Bill, we have incorporated the fact that people have to think about the information and be able to draw conclusions from it. Clearly, somebody in a depressed state may not be able in a position to do that, in which case, for the purposes of the Bill, they would lack

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capacity. I hope that that addresses the point made by the noble Earl, and that he will withdraw the amendment.
Earl Howe: I am grateful for that reply and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 8 and 9 not moved.]
Clause 3 agreed to.
Lord Carter Lord Carter moved Amendment No. 10:
After Clause 3, insert the following new clause—
"DUTY ON PUBLIC BODY TO ASSESS CAPACITY

(1) Where it appears to the relevant authority that a person "P" may lack capacity in relation to matters connected to—

(a) the assessment of P's needs for services which may be provided or arranged by the relevant authority ("assessment of needs"), or

(b) the provision of services to P which may be provided or arranged by the relevant authority ("service provision decision"),

no part of this Act will authorise a person to do an act connected with the assessment of needs or service provision decision unless the steps set out in subsection (3) are followed.

(2) For the purpose of subsections (1) and (3) a "relevant authority" means either—

(a) a local authority exercising functions under section 47 of the National Health Service and Community Care Act 1990 (c. 19) (assessment of needs for community care services),

(b) a local housing authority within the meaning of the Housing Act 1985 (c. 68), or

(c) a Health Authority, Health Board, Special Health Authority, Primary Care Trust or National Health Service trust.

(3) The relevant authority must—

(a) make arrangements for P's capacity, in relation to the manner in question, to be assessed,

(b) notify P of the help available from, and assist (if P so requires) P in contacting, an independent advocate under the arrangements under section 34 (such help may include assisting P in communicating his views),

(c) consider whether P requires any additional assistance in communicating his views (whether by talking, using sign language or other means), and

(d) where P has been assessed to lack capacity in relation to the matter in question, to make such enquiries as are necessary to be satisfied that the matter does not fall within the scope of the authority of—

(i) a donee of a lasting power of attorney granted by P,

(ii) a deputy appointed by the court,

(iii) an advance decision to refuse treatment (where treatment is being considered).

(4) In carrying out an assessment under subsection (3)(a) the relevant authority must take into account the views of—

(a) P with or without the assistance of an independent advocate providing support in accordance with subsection (3)(b),

(b) anyone named by P as someone to be consulted on the matter in question or on matters of that kind,

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(c) people who are, or are likely to be, responsible for the provision of care or treatment to P in a professional capacity, and

(d) if it is practicable and appropriate to consult with them, any other person engaged in caring for P, whether or not in a professional capacity.

(5) If in the course of carrying out an assessment of P under subsection (3)(a), the relevant authority or any person or persons identified in subsection (4) requests that an independent advocate be provided to assist with the assessment, in accordance with the role of an independent advocate as defined under section 34, the relevant authority must ensure that an independent advocate is provided."

The noble Lord said: With this amendment we move to the subject of the duty on a public body to assess capacity. As we know, there are tens of thousands of older people and people with disabilities who are subject to having their care and treatment needs assessed every year. That is besides the more than 300,000 older people in residential nursing homes and the like. A significant proportion of those people will have difficulties in making decisions. It is therefore essential in the assessment, planning and review of those services that public authorities pay as much attention as possible to ensuring that people's ability to make decisions and have a say is maximised.
The amendment would affect the local social services authority, the local housing authority or an NHS body. It will cover assessment for a person's needs through a range of health, social care and housing needs and the decisions on what services should be given to meet such needs.
If it appears to the authority that the person concerned may lack capacity, the amendment requires the authority to take specific action. It makes clear that the authority must have a system of assessment and of information, of advice on advocacy and on communication needs; and that it must also make the necessary inquiries to be satisfied that another person does not have the authority to make such decisions, or that the situation is not covered by the advance refusal of treatment. The amendment therefore makes clear that the relevant public authority must ensure that decisions are taken only on behalf of the person in relation to health, social care and housing services after these steps have been taken.
It is implicit in the Bill that the authority should carry out an assessment of the person's capacity and I accept that. If it appears that the person may not have capacity to make decisions in relation to his assessment, the amendment makes the policy which is implicit in the Bill explicit on the face of the Bill. I beg to move.
Baroness Finlay of Llandaff: I would in spirit very much like to support the amendment, but I have a small problem with it. Perhaps the Minister can help me or the noble Lord, Lord Carter. My problem is that one's capacity to take a decision varies depending on the size of the decision. If there is to be a formal way of assessing capacity and a duty formally to assess it, it is necessary to have a tool that is valid and possible of reproduction, as well as being widely applicable. One can then demonstrate that assessment has taken place against a measure.

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The difficulty is that, so far as I am aware, we do not have a widely applicable tool. Various different tools are available in practice to assess capacity in a range of different situations, but there is no universally applicable model. I wonder whether that might become a problem.
I have a second concern with the amendment which might seem minor. Subsection (2)(c) lists various NHS providers, but I am concerned about patients in the private sector and how a duty to assess would cover them. It may be that I have missed it in the wording of the amendment.
Lord Alton of Liverpool: I, too, support the noble Lord, Lord Carter, in the spirit of the amendment. I have two brief questions for the Minister. The first is whether local authorities and health authorities have been consulted about the new duties that will be placed on them. The second relates to their ability to carry out these functions. What resources will be made available to them when the legislation is introduced? All of us who have served on local authorities know that there are many competing demands on them and that their budgets have already been formulated for this fiscal year. Some lead time is needed in order to be able to work out new financial provisions if they are required. Can the Government give an indication of the overall costs of implementing the legislation and the provision that is being made for that?
Baroness Ashton of Upholland: I am grateful to my noble friend because this is an important opportunity to examine the issues he has raised on assessments, and so forth, to ensure that we implement the legislation correctly. My noble friend Lord Carter invites me to have inserted into the Bill the formal procedure requirements he indicates. I accept the comments of the noble Baroness, Lady Finlay, on the missing parts, but I am sure that my noble friend would deal with that were he to bring the amendment back.
It is right that the assessment of services should take account of the Bill. It is what we have always intended and we will work to ensure that it happens within the law. I am clear that we would wish to see what my noble friend seeks, but I intend to resist the amendment for three different reasons. The first is something that the noble Baroness, Lady Finlay, alluded to when talking about the differences in the formal processes and procedures. I question whether it is always appropriate to have such formal procedures.
We have stated in the code of practice that where consent to medical treatment or examination is required, the doctor or clinician who is proposing that treatment must decide whether a patient has the capacity to consent and must record his findings in his medical notes. But I am not sure that it is right that the decision to provide any service should be subject to what would essentially be a full formal capacity assessment, even if it is for the provision of quite a small service. I am sure that that is not what my noble friend is after. If someone is being assessed for the provision of new cutlery—a common example—perhaps after having a stroke, one would not
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be looking for a full medical assessment. I am sure that my noble friend is not looking for one either, but the amendment would invite that to happen in practice.
This does not mean that we want the Bill to allow public bodies to provide inappropriate care for someone because he lacks the capacity to consent. The provision of equipment would be an act of care or treatment. It would therefore be required in the best interests of the person, with the individual as fully involved and consulted as possible. In relation to communication aids, we have already indicated in our earlier discussions that someone is not to be treated as unable to make a decision unless all practical steps have been taken to help them, including with communication difficulties.
The second reason why I have concerns about this amendment is that I am of the view, and have become increasingly so as time has gone on, that primary legislation is not the best place to tackle everything. This is important—I recognise that—but I am not sure that it is something that I want to see covered in primary legislation. The purpose of the Bill is to set out the broad principles and absolutes, if I may put it like that, to be followed, but we cannot lay out on the face of the Bill the practical detail of how professionals should operate, and I am not sure that we should. We want good practice to be followed, bearing in mind what the noble Baroness, Lady Barker, said earlier this evening about siloed good practice and the need to make sure that it does not operate in that way.
This issue goes back to where we started: every person is different and the needs of each individual need to be taken into account. The details of the assessment procedure—this is where the noble Baroness, Lady Finlay, came in—must be a matter for professional judgment in relation to the case, with support from the code of practice in training and guidance. That is my second consideration.
It is important to indicate that we are putting the individual at the heart of the process. The work involved in putting together the single assessment process for older people, the valuing people programme and the National Service Framework for Mental Health are good examples of where we have managed to increase awareness and spread good practice, and I hope that they will begin to address some of the issues raised.
My third point is that the requirement to consult others is already part of "best interests". The noble Lord, Lord Alton, asked me about the consultation process. We are in dialogue with many different bodies that are concerned with the Bill. One of the things that will happen when, as I trust, the Bill becomes law is that the code of practice, which I think I described earlier as the "living document" upon which professional practice will be based within the framework of the Bill, will be out for consultation to enable us to engage with all those involved.
I am waiting to see whether I have the final figure for the amount of money; no, I do not. I think that I indicated that we have £12 million available for some of the implementation process. We have separate moneys available that we will talk about later in the Committee

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when we discuss the independent consultee—we may find a name change coming our way. I think it is £6.5 million for that. There will be others. I shall write to the noble Lord and copy other noble Lords in on that.
Of course, in the Bill it is clear that the requirement to consult with, and take account of the views of, others is provided under "best interests". Clause 4(7) sets out the consultation process, which includes the independent advocate and,
"anyone engaged in caring for the person or interested in his welfare … any donee of a lasting power of attorney … and … any deputy".
I think that point is already covered in the Bill.
For those reasons, I would resist this proposal being in the Bill and would steer my noble friend firmly towards the ability of the code of practice to enable us to discuss some of those issues, while recognising the principle to which my noble friend referred. I ask my noble friend to withdraw his amendment.
Lord Carter: When the Minister tells a former Chief Whip that she is going to steer him firmly in a certain direction, it reverses what we used to do. I am extremely grateful to the Minister. Obviously this is a probing amendment. If a person lacks capacity, an assessment will have to be carried out one way or another to ensure that he receives the right housing, social and residential care, and so on. There is no choice on that.
It is implicit in the Bill that those assessments will be carried out. This was an attempt to explore how that will be done. I am satisfied with my noble friend's answer that it will be spelt out in the code of practice. As regards the timetable, perhaps this may be a chance for the Minister to confirm that 2007 is the likely date for implementation.
Baroness Ashton of Upholland: Indeed, but I am very conscious that my noble friend steered me, as he is prone to do, towards looking for earlier implementation. There are real issues about ensuring that the different elements of this Bill work together— particularly, the Court of Protection.
I am now engaged in an interesting debate about what we mean by 2007, which, as Members of the Committee will know, has 12 months in it.
Lord Carter: This is a debate that will continue inside and outside the Chamber. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [Best interests]:
[Amendments Nos. 11 and 12 not moved.]
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 13:
Page 3, line 8, leave out subsection (5) and insert—
"(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death."
On Question, amendment agreed to.
[Amendment No. 14 not moved.]
Lord Carter Lord Carter moved Amendment No. 15:
Page 3, line 15. at end insert—

"(6A) He must consider any advance statement made by the person ("P") when P had capacity to state P's preferences in relation to the matter in question.

(6B) For the purposes of subsection (6A) an "advance statement" must—

(a) be in writing.

(b) be signed by P or by another person in P's presence and by P's direction,

(c) the signature is made or acknowledged by P in the presence of a witness, and

(d) the witness signs it, or acknowledges his signature, in P's presence.

(6C) He must, where the determination is not in accordance with P's preferences as stated in P's advance statement, be able to show good reason as to why this is the case."

The noble Lord said: Amendment No. 15 refers to "advance statements". Currently, the Bill will give statutory legal recognition to only advance refusals of treatment. It would be helpful in our terminology to use the words "advance directive" or "advance direction" for refusals of treatment and "advance statement" and "wishes" to continue treatment, so that there is no confusion. I shall use the term "advance statement".
There is an argument that the positive advance request for treatment and care should also be given some form of recognition in the Bill. The amendment proposed will include advance statements made by a person as part of the best interests checklist in Clause 4. If someone has taken the trouble to express his preferences in an advance statement, there should be an obligation on those persons providing care or treatment to take the advance statement into account. I am sure that the Minister will say that that should be done, but it will be interesting to know just how that is supposed to be done.
The person providing care or treatment should also be able to provide a satisfactory explanation when the care or treatment provided goes against the preferences expressed in the advance statement. The Government have said that advance statements will be included in the code of practice. However, there is considerable research evidence, particularly in relation to people with mental health problems, that unless advance statements have some form of legal status, the experiences of patients and professionals are regularly ignored. We touched on that in an earlier amendment. That experience serves to discourage some people from setting up the procedure for advance statements.
It would be anomalous that while people with mental disorders in Scotland will have advance statements recognised in Scottish mental health legislation, there will be no legal recognition of advance statements in England and Wales in either the Mental Capacity Bill or the draft Mental Health Bill, which is currently being dealt with in a Joint Committee of which the noble Baroness, Lady Barker, my noble friend Lady McIntosh and I are members.

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Advance statements empower people to make their preferences known in advance, which make it far more likely that they will receive the treatment and care of their choosing. Advance statements will help to promote the ethos that the NHS is aiming to develop through the patient expert programme and should be included as part of the Bill.
I must refer to the Burke judgment because that is what this is about. There is a firm statement in Burke that if an advance decision to refuse treatment is, in the words of Mr Justice Mumby, "determinative", an advance statement of wishes not to have artificial nutritional hydration stopped, for example, is equally determinative. That judgment has considerable implications, as we all know. We know that it is being appealed.
I understand why the department and the GMC have joined in the appeal. On certain readings, the Burke judgment could open the door to enormous implications: a patient could demand any treatment he or she wanted, which I am sure was not the intention. It is an important area. This is a probing amendment on the subject of advance statements to see whether, if they are not given the same legal force as an advance refusal, there is some way in the Bill that we could cater for the problem that exists in this area and with the Burke judgment. I beg to move.
Baroness Chapman: I think that the noble Lord, Lord Carter, was reading from my notes over my shoulder, because he said just about everything that I was going to say. Indeed the Minister and I had a discussion this morning about advance decisions and I too think that this will be a formal recording of positive decisions requesting treatment. I hope that we will find a way to deal with that.
Baroness Finlay of Llandaff: I have tabled some amendments in this group, but I fear that I have scored an own goal because mine do not cover private practice either. I should not have criticised the amendments of the noble Lord, Lord Carter, when I have made the same mistake. They were motivated by wanting to establish a position of equipoise.
As the noble Lord, Lord Carter, so clearly laid out, the difficulty is that the legislation seems to be skewed towards one's ability to refuse treatment but makes it more difficult to have some way of legally enforcing a statement of what we would want done. I would like to use two examples. I refer to Jane Campbell, who has already been mentioned and whose case was raised by the noble Baroness, Lady Barker: her situation arose in hospital. It was not reported in the press that two or three months before she had already made the decision that in the event of her needing to be on a ventilator she would want to be on a ventilator and still work. She would like to find a way of having a wheelchair-linked ventilator so that she could get around and still hold her position of responsibility. It was not until her husband and sister were forceful that she was able to convince the clinicians. She had a legally-binding advance statement. They would not have been able to ignore her wishes when she herself was trying to express them. That is an extreme example.
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A situation that arises often in clinical practice is that we do not know on the balance of benefit versus risks and burdens what is going to be right for the individual because the decision is so individual and no decision is absolute. In other words, if a patient is being offered, say, a gastrostomy, we cannot say that they will certainly benefit or not benefit. When some patients can no longer swallow they will say, "That's it; nature's taking its course. I want to allow natural death to occur. The thought of having a tube coming out of my tummy, the risk of diarrhoea and the need to monitor my electrolytes is something that I don't want". That is their decision and they refuse treatment. Under the Bill they can write a statement to that effect.
However, someone else may say, "If I am unable to communicate or I am too ill at the time, I would like you to think about it and consider it and possibly give it a go and I accept that I may get diarrhoea with it and I realise that you will have to take blood off me every day initially and thereafter at intervals. But I would like to be considered because for me having the hope of some more days or weeks and to be able to express that wish is important to me".
The amendments do not say that the clinicians must do what is laid out, but if there is an explicit, situation-specific wish, they have to consider it seriously as part of the decision-making. The amendments seek to establish that equality, so that people can state that they would want you to try to let them keep going.
Another example may arise with people who know that when their depression gets very severe they respond to ECT. I know they are very rare cases, but there are a few people who accept that ECT may be the quickest way for them to get out of the absolutely black depth of their overwhelming suicidal depression. It would be helpful for clinicians if that were stated somewhere, because it would be easier for them to go straight into a treatment that in this day and age is a long way down the list of treatments offered.
Baroness Greengross: When some of us had an opportunity to discuss the matter at one of the meetings outside the Chamber, a fear was expressed, which I share to some extent, that people could demand any treatment— for example, a new treatment that is being tried out in Australia—and automatically say "I want to go there". Thinking about that afterwards and about our earlier debate today, I wondered whether the principle of equality of treatment would not cover that situation to some extent, if the Bill was carefully worded.
All we are saying is that, on the premise of equality of treatment, a person who is incapacitated should have access to the same level of treatment as someone who is not incapacitated. No one in this country has a right to absolutely anything under the NHS. You cannot demand to go to wherever you want to try out a treatment. It is only if it is "reasonable". The principle

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of reasonableness is difficult to define, and perhaps "equality of treatment" or "access to treatment" might be helpful.
Baroness Barker: The noble Baroness, Lady Greengross, has provided more ammunition in support of my argument about equal treatment.
As I said at Second Reading, for me, this is not about people demanding a treatment so much as people not having an assumption made that they would refuse a treatment. That is where we are all trying to get to in different ways. That is one element.
The second element is slightly different, and perhaps its most important application is in the field of mental health. I know that mental health is somewhat different because it is the one area of medicine where there is compulsory treatment but, having listened a great deal lately to mental health patients talking about treatment and about compulsion, I believe that there are far greater therapeutic benefits in having advance statements in mental health, where people decide for themselves what treatment they want in a period of incapacity.
For example, someone may say "I know that when I have an episode of ill health I am likely to tell you that I do not want such and such a treatment. But here I am at the moment, with capacity, and I am telling you that if that happens I want that treatment". It is a judgment call. I am not a clinician, but something tells me that it would be far better for people who have the ability to direct their treatment rather than being subject to compulsion.
It is a slightly different matter from where we are trying to get to with regard to a presumption that people would not want matters to be prolonged.
Lord Carter: Before the Minister replies, I wish to raise a point that I meant to make but forgot to do so. It is important.
When I was thinking about this issue, I wondered what would have happened if Tony Bland had made an advance statement before he was injured at Hillsborough that he wished artificial nutrition and hydration to be continued if he became incapacitated. That would have been before the Bland judgment, obviously, and also before the Burke judgment. I wonder what the situation would have been then.
9 p.m.
Baroness Ashton of Upholland: Tempted though I am, I will not try to address the speculative question of my noble friend Lord Carter. I understand what he says, and I hope as I talk about the amendments we will reach some conclusions about what might have happened. I start by saying to my noble friend that it is the Scottish mental health legislation that recognises advance statements and not the Adults with Incapacity (Scotland) Act 2000.I have been sent a note about that, so I presume they wanted me to say that.
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I am grateful to everybody who spoke with enormous clarity, and I am very sympathetic to the amendment moved by my noble friend Lord Carter. I completely understand why the noble Lord is concerned to ensure that when people positively want to receive particular forms of treatment—the noble Baroness, Lady Finlay, gave examples—they are given due weight by the Bill.
We have said that everything in the Bill is about empowering and promoting the best interests of vulnerable people. So I want to provide reassurances when talking about the amendments, and to explain a bit more about the Burke judgment. But I begin by confirming that I plan to table a government amendment on Report on the issue, because that might save anybody leaping in to table a different amendment. I want to explain a bit more about that.
We start from the premise that, if someone has taken the trouble to write down an advance decision indicating their preferences, a decision maker has a duty to consider them as part of the best interests determination under Clause 4. In the draft code of practice at paragraph 8.12, we have already explained that advance statements are a means by which patients through advance planning can continue to influence their treatment. They do this by influencing the way that a doctor determines best interest. Therefore the more specific and well thought-out the statement, the more likely a decision maker will find it persuasive in that best interests assessment.
I want to talk explicitly about treatment decisions and about the Burke judgment, referred to by my noble friend Lord Carter, which I know has been influencing the thinking of late, and to explain where the Government are on this. I agree completely that people should be able to request artificial nutrition and hydration (ANH). It is indeed what happens now. However, the judgment in the case of Mr Leslie Burke was not limited purely to artificial nutrition and hydration, because it can be read as giving patients the right to demand any life-prolonging treatment they wish, no matter how untested, inappropriate or, dare I say, expensive and, perhaps most importantly, regardless of their doctor's views on whether it would benefit them.
Up to now, the courts have always accepted that whether or not a requested treatment is provided ultimately depends upon the clinical judgment of the medical practitioner treating the patient. The noble Baroness, Lady Chapman, and I discussed that a little this morning when we met.
For example, if a patient—as in the case of Mr Leslie Burke—has made an informed request for artificial nutrition and hydration in advance, that request would be disregarded only if the doctor, weighing up all the other circumstances and factors, found that providing ANH would be contrary to best interests—for example and most obviously if it were clinically detrimental to the patient, as it sometimes can be, or otherwise damaging or distressing to the patient. That goes some way to answering the question posed by my noble friend Lord Carter about what would have happened in the case of Mr Bland.
It is vital—I think that noble Lords accept this—that there are clear principles for medical professionals to follow to get the best healthcare available. Therefore the

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Department of Health has joined the General Medical Council's appeal in the Burke case, not because it thinks that advance requests should not be taken seriously—far from it—but to get clarification of how far patients can actually require treatments to be provided.
To conclude on my noble friend's amendment, the Mental Capacity Bill will offer people with capacity the opportunity to plan ahead for a time when they may lack capacity and to make others aware of what their wishes are, including any treatment they would wish or not wish to receive. As I have indicated, I will table a government amendment on Report to make that clearer.
I want to talk a bit about the amendments grouped with this amendment, although I have dealt with the main thrust of this group in what I have said.
Amendment No. 82 would ensure that advance decisions can request the continuation of treatment as well as refusing it. I sympathise with what the noble Baroness, Lady Chapman, is seeking to achieve but again, I refer to the Burke judgment and where we are with clinical practice. We cannot be in a position in which patients can demand any treatment, whatever the circumstances. That is why, when I bring forward proposals on Report, they will be within the wishes and feelings context of Clause 4 to ensure that these requests are followed with regard to all the relevant circumstances in the individual case.
I say to the noble Baroness, Lady Finlay, that my issue with her amendment is about the same status as advance decisions to refuse treatment. In order to make sure that we fit within best interests and clinical practice, these are important statements which should be recognised, but recognised within the context of what is in the best interests of the patient. At the time of making the decision, patients may not be aware that the treatment in the future may not be appropriate for their particular condition or that better treatments are available which would make life better for them. Given my commitment to bring forward an appropriate amendment on Report, I hope that my noble friend will feel able to withdraw his amendment.
Lord Carter: I am very grateful to my noble friend, and I need not take up the Committee's time. If the Government intend to bring forward an amendment on Report, we must wait and see what it says and deal with the issue then. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 16 and 17 not moved.]
Baroness Ashton of Upholland: moved Amendment No. 18:
Page 3, line 35, leave out "his"
On Question, amendment agreed to.
[Amendment No. 19 not moved.]
Clause 4, as amended, agreed to.
Clause 5 [Acts in connection with care or treatment]:
Lord Carter: moved Amendment No. 20:
Page 3, line 43, leave out from beginning to ", and" and insert "has capacity to consent to the act and must ascertain P's best interests if P is unable to consent for himself in accordance with section 4"
The noble Lord said: Amendment No. 20 deals with acts in connection with care or treatment, under Clause 5. This is the phrase the Government have devised instead of "General Authority", which was in the draft Bill. In fact, that was a very good and accurate term but it led to a fair amount of misunderstanding. The fact that it was referred to as a General Authority—with initial capitals—led one witness to think that it was an authority like the Port of London Authority or the Covent Garden Market Authority. We had to explain that it was a concept, not an authority. I am afraid that we could not think of another phrase and told the Government that they must, so they came up with:
"Acts in connection with care or treatment".
The amendment deals with the protected act—the act which is protected under what we used to call the General Authority. This will be subject to the test of best interests, which assumes that a person lacks capacity and that a decision needs to be taken in their best interests.
The amendment strengthens the overriding obligation to maximise capacity and decision-making and supported decision-making before there is a substitute decision under a protected act. It would serve as a reminder to informal and paid carers that the first step is to ascertain that a person has capacity and that any action— once it is established that a person lacks capacity— must be based on his or her best interests. It is important to clarify the intent of the protected act in order to counter concerns about its concept and purpose. It is quite strongly felt that decisions will be taken that are best for the professional carers rather than for the individual concerned. The amendment seeks to improve the links between Clause 5 and the principles in the Bill, as well as the best interests criteria in Clause 4.
Amendment No. 27, which is in the same group, deals with the treatment safeguards and comes at the situation from a different angle. Clause 5 offers statutory protection against liability for certain acts in connection with care or treatment. If an act qualifies as a protected act, the carer or other decision-maker can be confident that they will not face a civil liability for criminal prosecution. But there is no guidance in the Bill as to the full scope of the protected act, and an argument has been put by the Making Decisions Alliance, which briefed me on this, that medical treatment should have additional safeguards before it can be provided to someone who does not have capacity.
The amendment seeks to probe the situation, setting out the medical treatment safeguards that we believe should apply. With the most serious treatments and procedures, such as sterilisation and organ donation, there is an argument that the Court of Protection should decide whether the treatment or procedure should go ahead. For other significant treatments such as ECT and the long-term provision of a treatment, we believe that

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the second opinion of a doctor should be involved. The amendment also makes it clear that a representative must be involved when decisions are made about the provision of these treatments. It also allows for regulations to specify further treatments to which safeguards should apply. The Royal College of Psychiatrists supports these amendments. I beg to move.
Earl Howe: I shall speak to two amendments in this group, Amendments Nos. 21 and 94.I need not spend too long on Amendment No. 21, which merely seeks the Minister's reassurance on a very simple point. When a carer or doctor who is looking after the incapacitated person is doing so as an employee or agent of someone else, it is important that the employer or principal of the carer or doctor will not be in any way liable for anything done to the patient, so long as the carer or doctor himself acts lawfully within the scope of Clause 5. Can the Minister provide that assurance and, if so, can she say why the provision does not have to appear explicitly in the Bill?
On Amendment No. 94, Clause 27 sets out a range of matters that fall outside the scope of the Bill, in the sense of decisions being taken about them on behalf of an incapacitated person. I propose that there should be an addition to that list, albeit a qualified one, and that is that nobody—neither a doctor, an attorney, nor a court deputy—should have the authority to give consent to the removal of an organ or other tissue for the purposes of transplantation. I suggest that that very sensitive decision should be reserved for the court and the court alone.
Removing an organ, bone marrow or any other sort of tissue from a patient, whether mentally incapacitated or not, is an invasive process which is not without some risk. One cannot say that it will provide direct therapeutic benefit to the patient, although it is certainly possible to argue that looked at in a wider context it is in the person's best interests for the tissue to be removed. Indirectly, it may be of huge value to the person that a close relative, for example, will be given the chance of therapeutic treatment by virtue of such a transplant—a relative who may also be a carer, say.
There are all kinds of scenarios that one can imagine in which the best interests of the person are best served by permitting the donation of tissue. But I am uncomfortable with the thought that a doctor, acting jointly with a relative or attorney, might take such a decision on his or her own. It would be very helpful to hear from the Minister about that. I hope that she will have some sympathy with the argument that I have advanced, because we need to reflect carefully on the issue.
Baroness Chapman: I have tabled Amendment No. 22, because I feel that many people with physical or mental impairments or with a condition causing diminishing mental capacity are made to feel that other people know best what their needs are. They may be medical professionals, social workers or members of their own family. Someone judged as having little or
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no mental capacity is much more vulnerable to agreeing to things under duress, not being included in a decision or being made to feel that they have to give a right answer. Many people feel disempowered while in a hospital environment. This amendment would help to protect them from abuses of power and is designed to ensure that independent advocacy is available and that the patient will have an automatic right to a complaints procedure.
9.15 p.m.
Baroness Finlay of Llandaff: I support the principles behind the amendments in this group, particularly as regards Amendment No. 20, to which I have added my name and to which the noble Lord, Lord Carter, has already spoken. For the record, I was slightly surprised at even the possibility arising of an organ being removed from a live donor who lacks capacity. That is a very helpful example as it underlines why advance statements might be very helpful as regards the whole field of organ donation. Although someone may be already brain dead, they may have a donor card and be maintained on a ventilator in perfuse, so a perfused organ is being removed. However, as regards the process of decision-making for the family, it may be very helpful to have an advance statement. That is a spin-off. It is lateral to the wording of the amendments that we are discussing, but will the Government consider that in drafting the amendments about advance statements and think about whether the donor problem that we have in the UK might be solved at the same time?
Baroness Ashton of Upholland: I am grateful to Members of the Committee who spoke to this group of amendments. I could say a lot about the purpose of Clause 5, but having listened to those who have spoken, I consider that the Committee is fully aware of its purpose. Indeed, we might have a clause stand part discussion in any event. Therefore, I shall work on that assumption and trust that Members of the Committee will intervene if they have a concern that needs to be addressed by further exploring the parameters of the clause.
Amendment No. 20 was spoken to by my noble friend and the noble Baroness, Lady Finlay. Clause 5(1)(a) states that,
"before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question".
The amendment seeks to change the wording to,
"before doing the act, D takes reasonable steps to establish whether P has capacity to consent to the act and must ascertain P's best interests if P is unable to consent for himself in accordance with section 4".
I welcome the sentiment behind the amendment but I believe that it is already contained within the Bill. The purpose of Clause 5, above everything, is to provide protection against liability where a carer acts when someone lacks capacity and thus cannot consent. So the lack of capacity has already been established for the purposes of this clause. If a person has capacity, Clause 5 is simply not engaged and the Bill is "exited" at Clause 3, if I can describe it in those terms. We have

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worked through that clause and ascertained when a person has capacity. Therefore, we believe it is appropriate that the reference is to taking steps to establish a lack of capacity.
The proposed amendment would also stress that, if the person cannot consent, the decision-maker should ascertain P's best wishes in accordance with Section 4. However, the need to consider the person's best interests is already addressed in subsection (l)(b). This provides that, for the protection of Clause 5 to apply, the decision-maker must reasonably believe,
"that it will be in P's best interests for the act to be done".
If the decision-maker acts on that basis, the protection that is available in Clause 5 comes into play. That would, of necessity, involve ascertaining the person's best interests.
I hope that my noble friend will reflect on that as he considers what to do with the amendment and that he will understand that if someone has capacity he or she exits the Bill at Clause 3.
The noble Earl, Lord Howe, asks a very specific question in Amendment No. 21. As the noble Earl indicated, the protection offered by Clause 5 is aimed at those who actually do the acts in connection with care and treatment that might otherwise incur criminal or civil liability. It is unnecessary to extend the protection to the person instructing the action for two reasons: first, it is unlikely that an instruction to a member of staff to act could of itself create criminal or civil liability. Secondly, even if it did, the amendment is still unnecessary as the instruction would itself be an act to which the Clause 5 protection would apply. So for those two reasons, which I hope completely address the point made by the noble Earl, it is not necessary to accept the amendment, because the fear that the noble Earl expressed would not be realised under the Bill.
The noble Baroness, Lady Chapman, spoke to Amendment No. 22, which has the effect of placing a series of new duties either on the person performing the act in connection with the care or treatment of the person lacking capacity, or on the Secretary of State. For the decision-maker to gain the protection against liability offered by Clause 5, if it is an attorney, a deputy, or an independent consultee acting in a professional capacity or for remuneration, he must have regard to the code of practice, as Clause 40(4) makes clear. It is important to be clear that any code of practice issue will be allowed to be used as evidence in court proceedings and could be taken into account by a court or a tribunal. It also provides that "P" should have a right of appeal to the Court of Protection.
I agree that a decision-maker should assist people who lack capacity to find advocacy services where this is appropriate. We agree that the availability of advocacy services is helpful in supporting vulnerable people to live independently and to take as much control over their lives as they can. We will highlight the contribution that advocates can make in the code of practice, and we will stress that under "best interests" decision-makers must consult an advocate if the person who lacks capacity wishes them to do so.
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That is different to setting out a procedural requirement to help the person to find advocacy support in every case, which would be bureaucratic and resource-intensive. Not everyone would want to feel obliged to have an advocate. There are real issues too about how families interact and the support that family members can provide for individuals. We should not presume that everyone wishes to have an advocate any more than we should insist that people have to use their relatives. I am not taken with the idea of making that a requirement. I am also unsure about having to invoke that service in every case, regardless of what the decision might be—it might be to provide a wheelchair, or prescribe painkillers. That would not always be the best use of resources and it would not always target those people who are most vulnerable. We live in a world of limited resources. I would prefer to examine the way in which we support the most vulnerable through independent consultee/advocacy services, and the decisions where that seems most appropriate. It is for those reasons that I resist this amendment.
I also resist the establishment of a new complaints procedure, because we want to ensure that existing complaints procedures are used effectively—that is often where the expertise lies. That would be the right way forward; a new bureaucracy would be cumbersome to set up. We recognise that the Court of Protection will be available for resolution of cases, including complex or sensitive cases, and that would include cases where urgent medical treatment is needed and serious cases involving ethical dilemmas in untested areas. Clause 22 asks that the person who lacks capacity should have a right of appeal to the court, and we fully agree with that. Under Clause 48, a person who lacks or may lack capacity can make an application to court without first getting permission to defend his rights. Clause 48(1) makes clear that anyone with parental responsibility for a person under 18, a donor or "donee" or lasting power of attorney, deputy, or person named in an order will not be required to obtain permission from the court to apply.
The amendment also addresses the question of the Secretary of State providing regulations on what constitutes care and treatment. I sympathise with the desire for clarity and for definitions. Inevitably, some of the statutory definitions are inflexible and do not necessarily stand the test for many years. What matters is not how something is defined, but whether it is provided in someone's best interests. Again, I go back to the best interests test. It is then the doctor's duty to provide it. If it is not provided, there may be an issue of negligence, or even gross negligence; for example, manslaughter. That is true now, and it will remain true when the Bill becomes law.
I move finally to Amendments Nos. 27 and 94. Amendment No. 27 is a rather lengthy amendment that covers several important issues and looks to put procedural safeguards in statute for certain specified treatments. As the noble Earl, Lord Howe, indicated, Amendment No. 94 focuses on organ donation. I agree that my noble friend Lord Carter has highlighted areas about which we need to be rightly concerned and where we want to see medical practitioners operating

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to the highest standards. I understand why he seeks to set those out in statute. However, I want to set out briefly why such issues are more appropriately handled through either the code of practice or guidance.
Amendment No. 27 requires that certain serious medical treatment decisions should always be taken to the court. Case law has set out two categories of case that should have prior sanction of the court— sterilisation, where that is not clearly for therapeutic purposes, and the discontinuance of artificial nutrition and hydration for a patient in a permanent vegetative state. The case of Mr Tony Bland has already been referred to this evening. The Government intend the situation in both those cases to continue under the Bill.
The current law has developed by guidance in case law responding to difficult cases. We want the courts to continue to decide which cases should have their prior sanction, not to create inflexible legal rules that may incur high costs and an often lengthy process of litigation. However, as I mentioned in relation to the previous amendment, it is important to maintain flexibility to provide for new treatments as they arise. For that reason, we consider that it would be most effective to use the codes of practice to specify the situations where decisions should be taken only by a court. Paragraphs 5.21 to 5.24 of the draft code set that out.
It is unnecessary and inappropriate to require all organ donation cases to be considered by a court. Under the Bill, the removal of tissue for such a purpose would be subject to the best interests test. Again, we are back to that as a core part of the Bill. The storage and use of tissue would also be subject to regulations to be made under the Human Tissue Act 2004. It has already been indicated that those will be consistent with the Bill.
What is more, donation by living donors—whether competent or not—will be allowed only in accordance with regulations to be made under Section 33 of the Human Tissue Act. Where necessary, cases will be subject to specific approval by the Human Tissue Authority, so a procedure will be available for the protection of persons without capacity. The regulations will be made by affirmative procedure, so will be subject to the scrutiny of this House.
Amendment No. 27 also requires certain categories of treatment to be subject to an independent second opinion. Again, I understand that the amendment aims to protect people from exploitation or from decisions being made as a result of inappropriate value judgments. However, where serious decisions are being considered, there are already adequate safeguards under the Bill. When a treatment has particularly serious consequences or where a doctor has some doubt about how to proceed, it is already standard practice to gain a second opinion. We want that practice to continue.
Under the best interests criteria, professionals would be expected to consult fully about serious decisions, and it would be open to family or friends to ask for a second opinion, if that had not already happened. Any disputes
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that could not be resolved locally could ultimately be taken to the Court of Protection. We have also provided for an independent person to be consulted when serious medical decisions are taken for people who are "unbefriended". That independent person can ask for a second opinion if they have any concerns.
I support the intention behind my noble friend's amendment—to make sure that right procedures are followed at all times, not left to individual good practice. I hope that Members of the Committee will recognise that, although we agree with the need to take certain cases to court and for a second opinion to be provided wherever it is asked for, it would be bureaucratic and inflexible to provide such safeguards in the Bill. It is the inflexibility about which I would be most concerned. We believe that the best place is the code of practice, which reflects existing best practice. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.
9.30 p.m.
Lord Carter: I am grateful to the Minister for an extremely full explanation. Obviously, I shall want to read it and then consider what to do.
The Minister remarked that she wanted the courts in certain areas—I believe she mentioned sterilisation and organ donation—to continue to make the law under the common law. I was struck when she said that by the quotation I gave at Second Reading from the noble and learned Lord, Lord Browne-Wilkinson, on the Bland judgment:
"I have no doubt that it is for Parliament, not the courts, to decide the broader issues which this case raises … it seems to me imperative that the moral, social and legal issues raised by this case should be considered by Parliament".—[Official Report, 10/1/05; col. 45.]
It was put in even stronger terms by the noble and learned Lord, Lord Mustill.
Baroness Ashton of Upholland: I am grateful to my noble friend. I referred to cases of artificial nutrition and hydration in areas concerning a vegetative state, and to sterilisation. I did not say organ donation. In fact, I said the opposite: that I did not think that those cases should always end up in the courts. I would maintain that what was meant by the remarks of the judge in that particular context is met by the Bill.
Lord Carter: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 21 and 22 not moved.]
On Question, Whether Clause 5 shall stand part of the Bill?
Earl Howe: I should like to spend a brief time on this Question to raise what I consider to be quite a major matter bearing upon the clause.
Clauses 5 and 6 provide powers to restrain incapacitated patients provided that such restraining actions fulfil certain conditions, which I shall not

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enumerate. It is therefore clear that the Bill can be used as authority to override physical non-compliance and objections to treatment by incapacitated patients.
Under present law, outside of Mental Health Act powers, authority for imposing treatment upon non-compliant incapacitated patients may be had under common law principles of necessity. The Bill appears to extend such powers of restraint to allow detention in hospital. Here, it comes into contention with the existing statutory powers of the Mental Health Act 1983, and how the two legislative structures are to co-exist needs to be determined.
Clause 28 provides the explicit link with the 1983 Act. Without reading out Clause 28, several things become apparent from it. Where an incapacitated patient is detained under a section of the 1983 Act to which Part IV of that Act applies, the powers and safeguards provided by the Act in respect of the treatment of their classified mental disorder may not be overridden by any power provided by the Mental Capacity Bill. But the Bill may be used as the authority to provide treatment for physical disorders or for mental disorders outside those classified in the Mental Health Act detention documentation, the exception being neurosurgery, which is covered by Section 57 of the 1983 Act.
Where an incapacitated patient is subject to a section of the 1983 Act to which Part IV of that Act does not apply, the powers of restraint in this Bill must be relied upon as the authority to provide treatment for mental or physical disorders
In so far as the Bill only codifies common law justifications for restraint and coercive treatment, the overall effect of it as set out in Clause 28 is similar to the current position in law. However, as the Bill's powers may also extend to authorising detention in hospital and similar deprivation of liberty, there would appear to be contention between the Bill and the 1983 Act in relation to what authority may be appropriately used or available for extended deprivation of liberty that may amount to detention.
The Bill is explicit over the relation between its powers and those of the 1983 Act only where a patient is already subject to the treatment powers of the 1983 Act when treatment is proposed. As such, the Bill fails to indicate how medical professionals are to choose between the two statutory frameworks where a mentally incapacitated patient is subject to neither the Mental Capacity Bill nor the Mental Health Act 1983 when treatment is proposed. The problem is, therefore, to determine how to identify the circumstances in which each statutory framework would be most appropriate.
The criteria for detention under the 1983 Act are relatively more exacting than those for the Mental Capacity Bill. For the former, detention must be justifiable as necessary for assessment or treatment and so on; whereas for the latter anyone who lacks mental capacity to make decisions is a qualifying patient for the application of powers.
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Powers of treatment are also subject to stricter conditions in the 1983 Act than under the Bill. It might be assumed generally, therefore, that the Bill as a codification of the common law will always present the less restrictive option than formal detention under the Mental Health Act.
Under Clause 5 the range of interventions that can be described as care and treatment, and which might amount to deprivation of liberty, extends from the most commonplace actions to serious psychiatric interventions. This makes it difficult to see how a solution to the problem of the relationship between the Bill and the 1983 Act might fall to a question of which treatments might be reserved to one statutory framework or the other. If we were to try to exclude some types of intervention from the scope of the Bill, we would find that the equivalent of common law powers were no longer sufficient authority to give life-saving electro-convulsive therapy, for example, without valid consent, or to administer even routine and relatively non-invasive courses of psychotropic medication to incapacitated patients. This would be likely to increase the use of formal detention in hospitals where the only justification for such detention would be the imposition of treatment that could previously be given on an outpatient or community basis.
At present the Bill appears to trump the 1983 Act as the route for legal authority to treat any patient who is incapacitated by their illness, whereas the Mental Health Act will remain the only option for coercive treatment of mental health patients who retain mental capacity to make decisions. I hope that I am correct in saying that. That raises two important points. Clauses 5 and 6 appear to stretch the common law and go beyond the 1983 Act powers. One has to question whether the Bill as drafted includes sufficient procedural safeguards such as review and appeal: that is, safeguards against misuse of the powers.
Perhaps I may ask the Minister this question. If the effect of Clauses 5 and 6 are to be such that an incapacitated patient may be detained under its powers, when, if ever, might it still be appropriate to use the Mental Health Act for such a patient? Is a distinction to be made between compliant and non-compliant patients and, if so, what is it that the patient should be compliant or non-compliant with that makes that distinction?
Baroness Masham of Ilton: Will other supportive accommodation include prisons and detention centres? I have today been to the prison group and we have heard of the suicides in prison and the enormous number of mentally ill people who are detained in prison. The suicide rate of women is appalling. Will the Bill include prisons?
Lord Goodhart: I draw the Committee's attention to the report of the Joint Committee on Human Rights published yesterday. In discussing this issue, paragraph 4.8 states:
"The Government states that the Bill's provisions about restraint 'do not permit deprivations of liberty within the meaning of Article 5 ECHR. Restraint is defined as including restriction of

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liberty. The Government has never intended this to include actions which would amount to a deprivation of liberty for Article 5 purposes'. This makes clear that the power to restrain is not intended to be interpreted as authorising deprivation of liberty and therefore engaging Article 5".
Paragraph 4.9 states:
"The Government's response meets our substantive concerns in relation to involuntary placement. This should be made clear on the face of the Bill, bearing in mind that what is at stake is the liberty of the person. We therefore invite the Government to consider amending the Bill to make clear, for the avoidance of doubt, that "restraint" in the Act does not include deprivations of liberty".
Therefore, while what the Government has said goes some way to meeting the concerns that have been rightly and properly expressed by the noble Earl, Lord Howe, the Joint Committee felt, again rightly, that it would be desirable for the Government to put on the face of the Bill that "restraint" does not include a deprivation of liberty. That would go some way to solving this problem, because it is certainly not obvious on the face of the Bill, as it now stands, that Clause 5 could not apply to a deprivation of liberty.
Baroness Ashton of Upholland: I am grateful to the noble Earl, Lord Howe, for raising the issue of the interface between the Bill and the Mental Health Act 1983, and also to the noble Lord, Lord Goodhart, for reading precisely the same extract that I had intended to read out from the report of the Joint Committee on Human Rights.
In response to that, having only had that report for 24 hours, I am not in a position to say precisely what we will do, but I shall look carefully at the committee's recommendations. In a sense, we are almost pre-empting subsequent groups of amendments, which examine the issue of the Bournewood gap or "chasm", as it was referred to by a noble Lord during Second Reading. I am also conscious of the time, regarding the subsequent groups. Perhaps I may place on record again that we are looking at the recommendations of the Joint Committee on Human Rights and endorse the extract read out by the noble Lord, Lord Goodhart, about its concerns and the reassurance that it believes has been given by the Government around the issues of restraint and deprivation of liberty.
I will read with great care the detailed set of issues raised by the noble Earl, but I wish to deal with the principle matter, as I saw it, regarding whether the Mental Capacity Bill trumps the Mental Health Act. The short answer is no, it does not. I shall explore that a little more and go some way towards addressing the concerns without straying too much into the issues of the Bournewood gap.
The Mental Health Act 1983 provides the power for patients with a mental disorder to be detained when it is necessary for their own interests or the protection of others. Once detained, they can be treated for that
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mental disorder without their consent, subject to various safeguards. Clauses 5 and 6, in contrast, provide a defence, as we have discussed, for acts in connection with care or treatment which would otherwise be unlawful. Most medical interventions would be caught by the tort of battery, if undertaken without consent. Acts which involve restraint are covered by the Clause 5 protection if the strict criteria in Clause 6 are met.
Clause 6(4) defines restraint as including a restriction of "liberty of movement". However, the Clause 5 defence would not apply to an act that deprived a person of his liberty, for the purposes of Article 5 of the European Convention of Human Rights. Nothing in Clause 5 or 6 allows anyone to be detained. Therefore, there is no question of these clauses trumping the Mental Health Act in such cases.
I wish to say a little about Bournewood to complete my answer to that specific point. We recognise that in the light of the Bournewood judgment there is a group of patients who have not been detained in the past under the Mental Health Act and who do not need to be subject to that Act, but who must now be considered to be deprived of their liberty and will, therefore, fall outside the scope of Clauses 5 and 6. As the noble Earl knows, and as we shall discuss, we are looking to bring forward proposals for new procedural safeguards for that group and to provide an appropriate legal basis for their care and treatment.
I hope that goes some way to tackling that interface question. Combined with my commitment to look at the issues raised by the Joint Committee on Human Rights and to follow up on further points made by the noble Earl, Lord Howe, I hope he feels able, at this stage at least, to allow Clause 5 to stand part.
9.45 p.m.
Earl Howe: I am grateful to the noble Lord, Lord Goodhart, for his remarks, and also to the Minister whose reply I found extremely helpful. As she recognised, the issues I addressed were only tangential to the Bournewood issue because they focus on non-compliant individuals rather than compliant ones. However, she is right that there is perhaps a double-interface here with the next group of amendments. I am grateful that she will give further consideration to the points I have raised and in the mean time I do not propose to obstruct the passage of the clause.
Clause 5 agreed to.
Clause 6 [Section 5 acts: limitations]:
Lord Carter Lord Carter moved Amendment No. 23:
Page 4. line 15, after second "is" insert, at that time and in relation to the circumstances of that time,"
The noble Lord said: This amendment and those grouped with it—Amendments Nos. 24 to 28, 53, 54, 78 and 79—all have my name on them and are to deal with the Bournewood gap. I will do my best to be brief, but it is a big subject.

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During the progress of the Bournewood case through the English courts in the late 1990s, the governing evidence included estimations of the numbers potentially affected by the lack of safeguards for people lacking capacity who were given psychiatric treatment without their consent and whose personal liberties were put in question. Figures given during a hearing in 1998—they are likely to be lower now— were drawn from information provided by the Mental Health Act Commission and the Department of Health. If in-patients who lacked capacity and who were treated informally were brought within the provisions of the Mental Health Act, this evidence stated that an additional 22,000 people had come under formal statutory provision. There are 14,000 patients detained under the Mental Health Act on any one day. The statistics speak for themselves.
Understandably, the driving force in the Government's case was to contain the burden on hospital administration by denying, as they did, statutory safeguards in the Mental Health Act to such patients. It was accepted by all concerned that placing Bournewood patients under the formal provisions of the current Mental Health Act was not the only or best means of ensuring that important safeguards were extended to them. The Government recognised that a different and more appropriate set of safeguards would meet the requirements of the European Convention when they drafted the 2002 version of the draft Mental Health Bill. That Bill included a special part containing a detailed safeguard for people lacking mental capacity. These provisions were in fact cited by the European Court of Human Rights in the course of the Bournewood judgment, with a clear inference that they were effective proposals for legislation.
As we know, these provisions have been left out of the 2004 draft Mental Health Bill, and the Government have subsequently completed on a different provision within this Bill for independent consultation on certain important decisions affecting changes in accommodation for a minority of people who lack capacity—that is, the independent consultee. These provisions have been the subject of extensive debate, and the Government no longer argue that the independent consultee provision meets the case for safeguards against unlawful detention for medical treatment. This is interesting. I will come to this point later about whether it is possible to do something about Bournewood in this Bill, but in the draft mental health legislation there were provisions which the European Court said were acceptable if they were brought into law.
I am afraid the Government do not have the luxury of time to delay on this matter. The judgments have authoritatively stated a range of safeguards that should apply. They are living law, under which numerous applications will start to flow on behalf of those whose relatives and representatives can access the legal process. As we know, the Mental Capacity Bill as it is presently drafted is not consistent with the judgment in Bournewood. If the Bill becomes law without amendment, it will automatically become open to challenge.
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In Clause 6, the Bill allows for the proportionate use of force and the restriction of liberty to prevent harm to a person who lacks capacity. This amounts to a bare statement of the current common law doctrine of necessity. The European Court of Human Rights explicitly rejected the legality of relying on the doctrine of necessity. There are no safeguards attaching to the provision as it appears in the Bill. Those providing and receiving care under restraint, restriction of liberty or force must continue to rely on common law decisions, and the courts have already spoken.
We know that the Department of Health has issued guidance on the matter, and I believe that it has already met a certain amount of criticism. It relates entirely to detention. It makes the point that the courts stated that deprivation of liberty must be considered in relation to a particular case, taking into account the type, duration, effects and manner of implementation. The guidance states that the distinction between the deprivation of and restriction on liberty is merely one of degree or intensity and not one of nature or substance.
In clinical practice, we know that patients are commonly given medical treatment while incapacitous but compliant; for example, prior to Bournewood, patients who were either in a home or admitted to hospital informally, who lacked capacity but who were compliant, who then required a course of electro-convulsive therapy (ECT) would be detained under the Mental Health Act. This in turn would require an independent second medical opinion under Section 58 of that Act to confirm the need for the treatment, in addition to giving the patient or relatives the right of appeal. Since Bournewood, such cases are treated under common law on the doctrine of the patients' best interests.
As I understand the position, the Mental Capacity Bill would not change the situation. Furthermore, proposals in the draft Mental Health Bill, which we are now considering in the Joint Select Committee, make it clear that a new Mental Health Act can be used only if there is no other lawful way to give the treatment. There continue to be real concerns about the lack of statutory second medical opinions related to specified treatment or groups of treatments. This role is different from that of advocate or independent consultee, and it relates to the medical need for the medical intervention.
I have a few final word on costs, which is the major problem for the Government. I understand and sympathise, as there could be a substantial resource implication. It occurred to me that we should be looking at the marginal costs. Many of the patients will already have costs attached to them, and it would be wrong to double-count the costs by including in the costs of Bournewood the costs which already apply.
Concerns about the costs of introducing procedural safeguards for Bournewood patients have centred on comparisons made with Mental Health Act procedures at the time of the House of Lords appeal in 1998. This is

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no longer the only or the best base of comparison. The financial costs of safeguards may exceed, equal or be outweighed by the benefits. Such analyses are unavoidable at the margins—that is, as between the alternative systems of safeguards—but the need for safeguards is not negotiable. There must be safeguards against the institutional unlawful detention of vulnerable people.
The costs will apply to the additional procedures for administration; the professional certification, assessment review and care planning; the giving of evidence to the Court of Protection; the wider range of bodies which will be liable to implement procedures; the possible increase in sectioned patients; and the Government's review on resourcing safeguards for people potentially affected by the Mental Health Bill. It is not at all clear what is the Government's latest view of the numbers of people who may be involved. A figure of up to 50,000 has been mentioned.
The impact of the procedures will be reduced by applying the current good practice in health and social care; by social services reducing the weight given to risk in assessments in favour of retaining more choice for service users; and controlling the number of people who are placed under conditions of detention. The costs of unlawful or unregulated detention can be high.
I sum up the problem as I see it and the routes the Government might take. I have already said that there is an example in the draft Mental Health Bill that was produced in 2002. Those provisions met the requirements of the European Court, and I ask the Minister to consider that. She need not reply to me today, but perhaps she will reflect on it to see whether there might be a way forward. There appear to be three possibilities for the Government. The first is the suggestion I made at Second Reading, which is to put in the Bill the criteria that will deal with this and then to take order-making powers to implement the detail when the time comes and when the Government have completed their consultation and calculations. I understand that my noble friend has had some discussions about this and it might not be possible if the order-making power is much too wide and if the criteria cannot be specified. But, of course, the criteria are in these amendments and could be teased out of them.
The other possibility is a small Bill, perhaps in the autumn when there is time, or the new mental health Act, which might not be available until 2007. If the Government do not deal with Bournewood in this Bill, after it receives Royal Assent and becomes law, which I am sure it will in the spring, perhaps in March, it will not be available in all its component parts until 2007. We will have the Mental Health Act 1983, which we know does not meet Bournewood, the Mental Capacity Act 2005, which, as drafted, does not meet Bournewood and which will not be fully operational until 2007, and the chance of a new mental health Act
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in 2007. It is a real problem for the Government. I do not have any solutions; I can only describe the problem. I beg to move.
Baroness Barker: After that excellent exposition by the noble Lord, Lord Carter, there is not a great deal more that one would wish to say. But there are one or two points. I talked about the Bournewood chasm. That was as a result of work that we have been doing on the mental health scrutiny committee. The number of mental health patients who are, or could be, in this position is huge. The number of people detained in significant ways and at different times is far greater than has been suggested.
The second point is that a number of noble Lords talked about hospitalisation. I do not think that that is the right word to use because, if one thinks about this in detail, there are many people who lack capacity. Many elderly people are not in hospitals, but in care homes. Given their lack of capacity, they could equally be described as being in this gap.
That is why the noble Lord, Lord Carter, is right to talk about the Government's three options. He is also right that the Government do not have time. There are now many people who have not only looked at the European Court judgment but who also grapple with the Department of Health's confusing guidance on continuing care, and have done so for a long time. There is a groundswell of people who are beginning to see that this is potentially a route to addressing a question that has been left undecided by the Department of Health for far too long. It is in the Government's interest, apart from anything else, to come forward, not with a solution but, if I can characterise the speech of the noble Lord, Lord Carter, with a statement about what the vehicle for the solution will be.
The noble Lord, Lord Carter, was quite right that the Bill will not be enacted until 2007. There are real questions about when, if at all, the new mental health legislation will emerge. He is also right that this matter needs to be addressed. All things considered, and not least because it is clear that detention is taking place on a large scale that has hitherto been unrecognised, it is in the Government's best interest—I shall be an advocate for the Government tonight—to look at the three options outlined by the noble Lord, Lord Carter. I think that his suggestion of a small, stand-alone Bill in the autumn is the way. The sooner the Government arrive at that conclusion about that being the route, the better for all concerned.
10 p.m.
Baroness Ashton of Upholland: I am grateful to my noble friend for raising that issue, but I was hoping that he would provide a solution. I am always pleased when the noble Baroness, Lady Barker, is working in our best interest too.
Perhaps I may take Members of the Committee through those issues reasonably briefly and explain where we are, which I hope will help them to understand the issues properly. For the benefit of any Member of

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the Committee who does not know about the "Bournewood" judgment, this was a judgment by the European Court of Human Rights that involved the case of a "Mr L", who was a compliant, incapacitated patient admitted for treatment to Bournewood hospital—hence, the word, "Bournewood"—following an acute episode of self-harm.
I shall not go through all the details, although if any Member of the Committee is interested, I can supply them. This judgment was deemed by the European Court of Human Rights to have unlawfully deprived "Mr L" of his liberty under Article 5 of the European Convention on Human Rights. We have said very clearly that we need to carry out a full consultation on that very complex case, which the Department of Health plans to launch as soon as possible. I shall keep Members of the Committee updated on that.
I recognise that the timing of the judgment and the consultation is not great. Many concerns have been expressed that we should take the opportunity of this Bill to take the powers necessary to deal with the Bournewood issue. I appreciate that my noble friend is trying to be helpful by casting much of the new clause in terms of a regulation-making power, so that not all the detail needs to be settled in advance of consultation. However, even those provisions would preclude the consultation necessary on certain fundamental issues.
As my noble friend has said, the approach is similar to the 2002 version of the draft Mental Health Bill. But where my noble friend is not quite right is that that, of course, addressed the Bournewood problem as we understood it at the time. It does not address particular issues that were raised by the judgment of the European Court of Human Rights, which are fundamentally about the procedures of admission and detention. In a sense, we cannot go back to the 2002 draft Mental Health Bill and look for solutions in that. We will have to explore much more thoroughly in our consultation what we need to do.
I could spend time going through the technical problems with my noble friend's amendment, but I know perfectly well why my noble friend has tabled this; that is, for us to have this initial discussion about those issues. One particular point that I would raise with my noble friend is that the amendments appear to establish a power for decision-makers to deprive mentally incapacitated people of their liberty through Clause 6. I want to be clear that Clause 6 is about restriction not deprivation of liberty. The powers ensure a person is not liable for criminal or civil proceedings as long as the proper procedures have been followed. But they do not provide a proper framework for deprivation of liberty.
To use classic examples, it applies to situations such as holding someone's hand when crossing a busy road if you know that the person has a habit of disregarding traffic, providing headgear to someone who bangs his head against the wall when getting distressed in a classroom and so on. It is not about an appropriate vehicle to establish a power to deprive liberty.
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Of course my noble friend has indicated some very detailed proposals in his amendments. At this point, we are not trying to say precisely which sort of cases would be covered. Noble Lords will not be surprised that I cannot indicate the numbers, which vary quite a lot depending on the interpretations that we need to think about from the European Court of Human Rights.
Before consulting widely, we cannot make an assumption that the same detailed procedures would be either appropriate or proportionate in all cases. As the noble Baroness, Lady Barker, said, we are talking about a range of different: people, some of whom may be in care homes, perhaps suffering from dementia, through to those who find themselves in mental health establishments for very serious treatment. We need to think carefully about what we will do about that.
So the issues that we are seeking to resolve in our consultation are: first, identifying relevant cases where there is a deprivation of liberty. There is no clear legal definition that will resolve the issue. We shall have to consider carefully the facts of a range of potential situations. Secondly, as my noble friend said, we are determining the appropriate safeguards. We need to seek safeguards that will avoid an unnecessary increase in the number of people being detained under the Mental Health Act and which will be appropriate to people's circumstances.
We need to resolve, thirdly, the proper role of third parties—family, friends and advocates; and, fourthly, the strategies we need to prepare to implement the changes that we want to make. We cannot move as quickly as we would like on those areas, particularly on this Bill. I do not want to rush the consultation and, more importantly, the Department of Health does not want to, because these are significant matters.
As my noble friend said. I have raised the issue with the Delegated Powers and Regulatory Reform Committee. I sent a letter today to the noble Lord, Lord Dahrendorf, and I have had an informal discussion with him about whether we might be in a position to take a regulation-making power. Noble Lords have indicated the three options available to us.
I have to say that the power would be exceptionally broad: I simply leave that on the table. I recognise that it would also include Henry VIII powers, with which noble Lords are fully familiar. There is the issue of a free-standing piece of legislation, which is the area for which I felt there was greatest support. As my noble friend said, there is also the potential of the Mental Health Act.
I shall feed back comments to colleagues in the Department of Health: also the comments about the interim guidance that has been produced. There are copies in the Library should any Member wish to look at them. On the basis of what I have said about the process in which I am now engaged, and our desire to seek an appropriate speedy "yes", but having carried out the consultation properly, and having worked out

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precisely what the judgment is inviting us to do, I hope that my noble friend will feel able to withdraw his amendment.
Lord Carter: I am extremely grateful to the Minister for that reply. Obviously, I shall not take up the Committee's time now. However, I believe that in December 2004 there was a case that was also on the lines of HL v UK. If we are not careful there could be a large number of such cases. I understand that the
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Government are between a rock and a hard place, but I am not sure that they will not have to try to do something in the Bill, at least to hold their position, until they can bring forward a Bill, perhaps in the autumn. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 24 to 27 not moved.]
Clause 6 agreed to.
House resumed.
House adjourned at eight minutes past 10 o'clock.

Official Report of the Grand Committee on the

  Public Services Ombudsman (Wales) Bill [H.L.]
  The Committee met at half past three of the clock.
  [The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]
  The Deputy Chairman of Committees (Lord Ampthill): Before I put the question that the Title be postponed, I remind your Lordships of two points of procedure. Noble Lords will speak standing and the House has agreed that there shall be no Divisions in the Grand Committee. Therefore, unless an amendment is likely to be agreed to, it should be withdrawn. If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
  Title postponed.
  Clause I agreed to.
  Schedule I [Public Services Ombudsman for Wales: appointment etc.]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 1:
  Page 27, line 6. at end insert "after consultation with the Assembly"
  The noble Lord said: Perhaps I may say at the beginning that, although there are a great many amendments in my name, for the most part they are probing. I may forget to say so on occasion, but that will become quite clear. However, we take a minority of the amendments very seriously.
  The purpose of this first amendment is to ensure that the views of the National Assembly are taken into account before the ombudsman appointment is made. We note that he cannot be removed from office without such consultation and it seems rather inconsistent that there should be consultation at the end but not at the beginning.
  We are all familiar with the argument that the ombudsman must be independent and therefore a Crown appointment in the usual way—by recommendation by the Secretary of State to Her Majesty the Queen. It is particularly important that he or she should be independent of those bodies who are subject to his or her investigation in the event of a complaint against them. Those bodies include the National Assembly. It, too, is a corporate body under the Government of Wales Act 1998 and responsible for all activities carried out in its name by the Assembly Government. Most of us now think that that is not altogether satisfactory and that the Government of Wales Act should be changed to allow more separation between the Government and the Assembly, but this is neither the time nor the place to pursue that line of
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  argument for reform of the devolutionary settlement— except to say that, in practice, some separation occurs now.
  In his reply, I expect that the Minister will say that the Secretary of State will take soundings and consult informally with the Assembly before the ombudsman appointment is made. It is important that he should do so, because the ombudsman is financially dependent on the Assembly and cannot perform his functions satisfactorily without the full backing of the Assembly. Both must therefore tread carefully and respect each other's functional independence, even though that may result in mutual criticism from time to time. To achieve a proper relationship based on mutual understanding, the Assembly must have some say, but perhaps not the final say, in the ombudsman's appointment.
  Consultation is provided for in the Education Bill before the appointment of the Chief Inspector of Schools, also a Crown appointment, and indeed of Her Majesty's Inspectors. I draw the Committee's attention to Clause 18 of the Education Bill, particularly subsection (6), which stales:
  "If the Assembly considers that any of the powers conferred by subsection (1), (2) and (4)(c) ought to be exercised, the Assembly must advise the Secretary of State on any recommendation to be made to Her Majesty as to the exercise of the power".
  The various subsections to which I have referred relate to the appointment of inspectors to the Office of Her Majesty's Chief Inspector of Education and Training in Wales and the removal from office by Her Majesty on the grounds of incapacity or misconduct.
  The Education Bill proposes that the Assembly should advise the Secretary of State before he makes a Crown appointment. It is a good way around the difficulty of enabling the Assembly to advise the Secretary of State before an appointment is made— that is tantamount to consultation. I beg to move.
  Lord Rowlands: Amendment No. 2, tabled in my name, has the same purpose as the amendment tabled by the noble Lord, Lord Roberts. One could make a reasonable case for saying that the National Assembly for Wales should not play any role in either appointment or removal. The comparison that the noble Lord, Lord Roberts, made with the chief inspector of Estyn is slightly different. The National Assembly for Wales, after all, will be subject to the jurisdiction of the ombudsman. The case could be made for not involving the Assembly in either appointment or removal because there is a potential conflict of interest. The Assembly might like somebody more compliant, or it might prefer one particular kind of person. It might be fanciful to suggest it but nevertheless that possibility arises if one involves the Assembly in such an appointment. I am puzzled about why the Bill allows the National Assembly a consultation role in dismissal or removal but not in appointment. Like the noble Lord, Lord Roberts, I am puzzled about why that distinction is made.
  If an ombudsman was threatened with removal for misbehaviour or misconduct, as a result of a particularly contentious or controversial situation in which the National Assembly had been embroiled

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  there is almost a case for arguing that in some respects the Assembly's role in removal would be even weaker than its role in appointment. I await with considerable interest my noble friend's explanation of why there is no formal consultation role for the National Assembly in the appointment but there is in the case of removal, when in some situations an ombudsman's removal could result from a situation in which the National Assembly was already embroiled.
  Lord Livsey of Talgarth: I agree very much with the remarks of the noble Lord, Lord Roberts, and especially with those of the noble Lord, Lord Rowlands, on the Assembly's involvement. I see the distinction between the two amendments as follows. Whereas Amendment No. 1 addresses the question of whether consultation with the Assembly should occur afterwards by the Secretary of State, Amendment No. 2 provides that consultation with the Assembly should occur before the recommendations are made. I prefer Amendment No. 2 because there must be discussion with the Assembly before a decision is made on the appointment. That is important.
  When the noble Lord, Lord Roberts, spoke to Amendment No. 1 in relation to the Education Bill, I noted that he mentioned that there had been consultation as regards the Education Bill. It is a fine point, but I would prefer that the Assembly is consulted before the appointment rather than afterwards. As I see it, that is the crux of the difference between the two amendments. However, both are correct in their approach because there is no doubt that the ombudsman needs to be entirely independent in his role as the protector of the citizens of Wales in relation to the legislature. Some recent appointments have been controversial, and I shall refer to them when we reach later amendments.
  Lord Evans of Temple Guiting: As drafted, the Bill provides that the Assembly should be consulted before the Secretary of State recommends that an ombudsman be relieved or removed from office but, as we have heard, it does not provide that the Assembly either be consulted on or approve the appointment in the first place. That said, the Assembly has in fact been consulted on ombudsman appointments made since 1999. The Secretary of State has consulted the First Minister who, in turn, consulted party leaders in the Assembly.
  Given that practice, and on hearing the arguments made by noble Lords, I accept the principle that the Assembly should be consulted both before and after the appointment, and that the requirement should appear in the Bill. I shall therefore bring forward an amendment on Report. With those words, I hope that the noble Lord will withdraw his amendment.
  Lord Roberts of Conwy: We are most grateful to the Minister for that reply, which certainly takes on board both the amendment moved by myself and that tabled in the name of the noble Lord, Lord Rowlands. I do not agree with the noble Lord, Lord Livsey, that there is a great deal of difference between them. I certainly
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  meant to provide for prior consultation with the Assembly, although I did not actually manage to get the word prior into my amendment.
  As I said, I am sure that we are all most grateful to the Minister for his favourable response. We look forward to seeing the government amendment on Report. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 2 not moved.]
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 3:
  Page 27, line 16, leave out "ten" and insert "five"
  The noble Lord said: This group of amendments deals with the ombudsman's term of office. A single 10-year term seems to be an exceptionally long period. My first question is this: what are the precedents for it? A number of other ombudsmen are mentioned in the Bill and I am almost certain that none of them is appointed for 10 years. A moment ago I referred in passing to the Chief Inspector of Schools, and I note that his appointment is for a term of five years.
  Of course it may well be that in practice some ombudsmen have lasted that long in post and that the 10 years simply recognises what happens in reality. I do not know. Perhaps the Minister will tell us when he comes to reply. We also recognise the need to maintain the ombudsman's independence. He should be beholden to no man. Nevertheless, a 10-year term of appointment is almost a guaranteed job for life, and such longevity has its disadvantages. It does not encourage high performance.
  I am sure that the more usual term of appointment is five years with the possibility of reappointment for a further five-year term, which is what I propose in my Amendment No. 3. I cannot believe that any ombudsman worth his salt would allow his judgment to be affected by the possibility that he might not be reappointed.
  There is also the compromise solution of a seven- year term, which is certainly preferable to a 10-year term, but I shall wait to hear more about that amendment. I beg to move.
  3.45 p.m.
  Baroness Gale: I wish to speak to Amendment No. 4, which, at line 16 on page 27, would leave out the word ten and insert the word "seven". I agree with much of what the noble Lord, Lord Roberts of Conwy, said in that a 10-year appointment is too long. At the briefing meeting that noble Lords had with Wales Office Ministers and the Welsh Assembly Minister, one of the main items of discussion was the 10-year appointment. Even at that stage, we were quite concerned about it.
  Although I think we all accept the need for a fixed- term appointment and that the term should be long enough to attract the right kind of person, the nature of the work undertaken by the ombudsman makes it essential that it should be a fixed term of a reasonable length to ensure the impartiality of the appointee and to ensure that he knows there will be no opportunity for reappointment.

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  I compare the terms of this appointment with that of the Children's Commissioner for Wales, who is appointed for a seven-year fixed term and is not eligible for reappointment upon expiry or earlier termination of the term of office. In a note that I received from the Library after requesting the exact terms of office of the Children's Commissioner, I was informed that he cannot be reappointed but that further provisions relating to filling the vacancy of the office of the commissioner and the commissioner's tenure of office would be made by regulations. I do not think that those regulations have yet been made and so I have no idea what they would contain. Following receipt of that note, it seems to me that the ombudsman's terms are better in that they have been set out more clearly than those of the Children's Commissioner.
  I believe that the ombudsman's terms of appointment allow for an extension of the term in certain circumstances, as set out in paragraph 4(2) of Schedule 1 on page 28 of the Bill. This issue is coupled with the debate on Amendment No. 3. That paragraph states:
  "A person appointed to act as the Ombudsman ('an acting Ombudsman') may have held office as the Ombudsman".
  If my interpretation of that is correct, the ombudsman coming to the end of, say, a seven-year term may be eligible for reappointment for a period which is no longer than two years. I am sure that the Minister will tell me if I am not correct. Therefore, I think that some flexibility might be possible if the need arose in particular circumstances. I believe there is much support for this amendment, which suggests a seven-year appointment, and I look forward to the Minister's response.
  Lord Prys-Davies: I thank the noble Lord, Lord Roberts, for his detailed examination of the Bill which led him to table the many amendments in his name.
  I shall speak in support of Amendment No. 4. It seems to me that there are dangers lurking in both the 10-year term and the five-year term. The danger that I see with the 10-year term has already been mentioned by the noble Lord, Lord Roberts of Conwy. It seems to me that the ombudsman may become too reliant on his 10-year contract—possibly a little complacent— and may pay insufficient attention to the exacting demands of this top post. That could arise if someone were appointed at about the age of 50. That would almost be equivalent to an appointment for the rest of someone's life, which could harm the service.
  On the issue of the five-year term—this could be bracketed with Amendment No. 6—there is a concern that a five-year term might not attract the top qualified people to the top post. The post will require top quality candidates. It seems to me that if top quality candidates cannot be attracted to apply for the post, because the term is too short, that could also harm the service. I believe that Amendment No. 4, specifying a seven-year term, should be supported.
  Lord Livsey of Talgarth: I strongly support Amendment No. 4.I mention in passing that the noble
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  Baroness, Lady Finlay, is unable to be present this afternoon, as she would have liked. She has added her name to Amendment No 4 and supports it.
  I am perhaps a little unusual in thinking that I am a prototype for the twenty-first century in that I have been fortunate enough to have had four separate careers in my life. In the case of an ombudsman, the tenure needs to be worthwhile, but not necessarily a tenure, as the noble Lord, Lord Prys-Davies, said, that could extend for the remainder of a person's life.
  Another factor has to be taken into account. When considering a five-year tenure and a seven-year tenure, one has to consider that the Assembly is elected for four years, so a seven-year tenure would more or less cover two Assemblies. I do not believe that five years is long enough for an ombudsman to be in place, but seven years is about right.
  The other amendment in the group, Amendment No. 5, states,
  "In exceptional circumstances the term of office, as set in sub- paragraph (1), can be extended by one year".
  That takes account of the fact that if, for some unforeseen reason, an appointment cannot be made—in the past, I have known a number of circumstances in different appointments where that has occurred—the ombudsman in situ can continue for another year while that is sorted out. That is a contingency situation. Clearly, I prefer Amendment No. 4, which would mean the ombudsman being in place for a seven-year period. No one has a divine right to a post for a period of 10 years. I do not think that that is right in this case.
  We should remind ourselves that recently a couple of appointments have been made in the Assembly that have been extremely controversial. Fortunately, this is a Crown appointment and, as we decided on the previous group of amendments, the Secretary of State would approve such a matter after consultation. A seven-year period underlines the point. Seven years is about right. I strongly support the amendment.
  Lord Rowlands: I support the seven-year principle. In the other place I served many years on legislation committees, but I was never on such a good listening one as this. We have already had one amendment successfully accepted in principle, which tempts us to suggest more. There is a lot of cross-party opinion against the 10-year appointment. My simple test for the length of service for an ombudsman would be: to what extent does it buttress his or her independence? Five years is too short. Five years plus renewal is also not happy. What would be the criteria for renewal? Who would do the renewing? What would be involved?
  As the noble Lord, Lord Roberts, said, perhaps towards the end of the five years the ombudsman would be looking over his shoulder and wondering. If he or she wanted to be reappointed, that just might influence his or her judgments. Ten years is far too long. The seven-year period—the seven-year itch— seems to me to be very good. Therefore, I support it.
  Lord Evans of Temple Guiting: I have a very good and extensive note here that leads up to the Government's view that they have changed their mind on the 10-year period and accept the seven years as proposed in Amendment No. 4. We feel that this would strike more accurately the balance that we seek to achieve between security of tenure and opportunities to re-invigorate the office. I am delighted that support for the seven-year period seems to be fairly widely shared around the Committee. We will bring forward an amendment on Report.
  Perhaps I may just say that I am not going to agree to absolutely everything. Having accepted—if, indeed, it is accepted—that seven years, as opposed to 10 years, is an appropriate term of office, it does not seem sensible to accept that the term of appointment should be extended by a further year in exceptional circumstances, as proposed in Amendment No. 5. The amendment does not specify whose judgment should determine whether a given circumstance is exceptional. Inevitably, there would be some uncertainty and the possibility of disagreement about that. Given that the Bill makes provision for an acting ombudsman to be appointed to fill any period between one ombudsman and another, the amendment is unnecessary and would be the source of considerable difficulty in practice.
  Again, I have a good and interesting note on the point raised by my noble friend Lady Gale about whether the appointment can last for an extra year. I fear that the answer is no. The Bill does not allow for that and Her Majesty will appoint a new ombudsman. There is no reason for Her to appoint an acting ombudsman. It is only if the office of ombudsman falls unexpectedly vacant due to illness or death that there is scope for appointing an acting ombudsman. In that case, the former ombudsman can fill the temporary gap.
  Given my explanation, I hope that the amendment will be withdrawn.
  Lord Roberts of Conwy: Once again, we are grateful to the Minister. There was clearly no support for the 10-year period and a lot of support for the seven-year tenure. The one thing that the Minister did not make clear is whether the seven-year tenure, which may be proposed by government amendment, or the exceptional period under the amendment of the noble Baroness, Lady Gale, will mean that there will be no further extension—in other words, that there cannot be a second seven-year period.
  Lord Evans of Temple Guiting: Yes; it will be a seven- year period that is not renewable.
  Lord Roberts of Conwy: That prompts me to ask the Minister to consider the matter further, because the one great advantage of my amendment is that it allows for a five-year period and a renewal for a further five years.
  Clearly, within government there have been arguments in favour of a 10-year period, otherwise it would not be in the Bill before us, and there is certainly
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  something to be said for a five-year period which is renewable and can therefore ultimately be extended to 10 years. But the Minister has spoken and I am certainly not one to quibble with a compromise. I am very happy to accept the seven-year period.
  However, we have heard it argued that the ombudsman must be in post for some time in order to learn how to do the job and to cultivate independence and public respect. Once that has been secured, there may well be a great deal of feeling that he should stay in post. Therefore, we await the Government's amendment but, again, I suggest that we give this matter further consideration, perhaps at a later stage. Meanwhile, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  4 p.m.
  The Deputy Chairman of Committees: Amendment No. 4 in the name of the noble Baroness has been agreed in principle by the Minister but, in the light of what the noble Baroness has said, she may not feel inclined to press it.
  Baroness Galehad given notice of her intention to move Amendment No. 4:
  Page 27, line 16, leave out "ten" and insert "seven"
  The noble Baroness said: Because I am not absolutely certain, perhaps I may ask a question. The Minister asked us to withdraw the amendments but I assume that he did not include Amendment No. 4 because that is the amendment that we want and the amendment to which the Government have agreed. I beg to move.
  Lord Evans of Temple Guiting: I have obviously not agreed to the form of the amendment because that must be worked out between now and Report. However, as I said, the Government accept the principle behind it.
  Baroness Gale: On that basis, I do not intend to move it.
  [Amendment No. 4 not moved.]
  Lord Livsey of Talgarthhad given notice of his intention to move Amendment No. 5:
  Page 27, line 17. at end insert—
  "( ) In exceptional circumstances the term of office, as set in sub-paragraph (1), can be extended by one year."
  The noble Lord said: I warmly welcome the Minister's acceptance of Amendment No. 4. and I totally understand his argument for not extending the term of office for one year. Therefore, I do not intend to move Amendment No. 5.
  [Amendment No. 5 not moved.]
  [Amendment No. 6 not moved.]
  Lord Roberts of Llandudno Lord Roberts of Llandudno moved Amendment No. 7:
  Page 28, line 3, after first "of insert "the National Assembly for Wales and approved by"
  The noble Lord said: There are now two Lord Roberts. We are becoming quite close colleagues as well as living within a stone's throw of one another. We shall probably be confused with each other now and again.
  This amendment—the first in the group—relates to the involvement of the National Assembly in the appointment of an ombudsman. I am sure that, following the spirit of the amendment tabled by the noble Lord, Lord Rowlands, this will also be accepted without much debate.
  I now turn to Amendment No. 9. This amendment leaves me in a little confusion—probably not for the first nor the last time. Paragraph 5 of Schedule 1 refers to disqualification. It states:
  "A person is disqualified from being the Ombudsman or an acting Ombudsman if any of the following applies—

  (a) he is a member of the House of Commons;

  (b) he is a listed authority".

  The listed authorities include the Assembly, a local authority in Wales, a local board, a joint board or a national park. Can the Minister explain how one of those could be an ombudsman? Do the Government mean "a member of" a listed authority? If that is what they mean, that will clear up the matter very well. I beg to move.
  Lord Roberts of Conwy: I rise to speak to Amendments Nos. 8 and 10, which are included in this group. Amendment No. 8 is tied in with my earlier amendments, which sought to provide for a five-year term which was to have been terminable or extendable by a further period of five years. Here we are dealing specifically with the acting ombudsman. My Amendment No. 8 therefore proposes to delete from Clause 4(3) the bracketed prohibition on the ombudsman from holding office as an acting ombudsman if he has previously held the full office.
  Amendment No. 10 is probing in nature and raises a serious question: why should the Assembly ever resolve that one of its Members should not be debarred from being an ombudsman? The Bill establishes quite clearly that Members of the Assembly should not be ombudsmen any more than members of listed authorities or local authorities.
  Clauses 5(1) and 6(1) make it clear that an Assembly Member is disqualified, along with other members of bodies subject to inquiries, those that are listed, and local authorities and their employees. We must ask, therefore, why this special exception is being made. It smacks of jobs for the boys and will be seen as such. It may be that an Assembly Member will show a particular talent for this kind of work, but surely in that event, if he wished to be considered for the post of ombudsman, he could resign his Assembly membership either before or immediately after appointment. Frankly, I see no justification for this subsection.
  Lord Roberts of Llandudno: I apologise if I was initially mistaken about when to rise to speak to the amendments tabled in my name. My Amendment No. 9 seeks to make exactly the same point as that made by the noble Lord, Lord Roberts on Conwy, in Amendment No. 10. For a
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  Member of the Assembly to be allowed to be the Public Services Ombudsman while a Member of the House of Commons is not allowed to hold that post undermines the whole purpose of being an ombudsman; that is, to be as independent and separate as possible. If the ombudsman is to investigate listed authorities, which is what the Assembly wants, surely he should not be part of the Assembly itself.
  I speak in support of my own Amendment No. 9, and again I want to ask the Minister to enlighten us on the listed authorities.
  Lord Evans of Temple Cutting: I shall respond first to Amendments Nos. 7 and 8 before turning to Amendments Nos. 9, 10 and 11.
  Amendments Nos. 7 and 8 concern the appointment of an acting ombudsman. Current provision in the Bill is that where the office of the ombudsman falls vacant, an acting ombudsman can be appointed by Her Majesty on the recommendation of the Secretary of State for a period of up to two years. The effect of the amendments would be to make it a requirement that if the office of the ombudsman falls vacant, the appointment of an acting ombudsman would be made on the recommendation of the National Assembly for Wales, approved by the Secretary of State, to Her Majesty.
  As we have already heard, in practice, substantive appointments to the office of ombudsman are made on the recommendation of the Secretary of State for Wales following consultation with the Assembly. Earlier I agreed to bring forward an amendment to make it a requirement that the Assembly is consulted rather than relying on past practice.
  The appointment of an acting ombudsman should differ as little as possible, if at all, from that of a substantive appointment. The importance of the office is no different, but we must recognise that, in reality, if the office of ombudsman should suddenly fall vacant, that is likely to be due to unforeseen circumstances to which the Secretary of State must react swiftly with the appointment of an acting ombudsman. The imperative is that the ombudsman function can continue.
  I can see no reason why, for an acting appointment, it should be the National Assembly for Wales that makes the recommendation to the Secretary of State for an appointment with the approval of the Secretary of State, especially when, by implication, approval means that the Secretary of State could veto the recommendation. Why introduce yet another different process? In the light of that explanation, I invite the noble Lords, Lord Roberts of Conwy and Lord Livsey of Talgarth, not to press their amendments.
  Amendments Nos. 9, 10 and 11 all relate to the disqualification provisions in Schedule 1. The policy intention is that, while in office, the ombudsman should be disqualified from undertaking certain other public functions, especially any function that falls within his jurisdiction as ombudsman. The ombudsman could not properly consider or investigate a complaint that concerned his actions in that capacity. That is why he is disqualified from being a listed authority or holding a

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  paid appointment to or being a member of a listed authority while he is the ombudsman. That is why Amendment No. 9 is not needed; it is already provided for in paragraph 5(1 )(c) of Schedule 1.
  However, once the ombudsman has left office, the position rightly changes. The Bill provides that where a person has ceased to hold office as the ombudsman or acting ombudsman, he is prevented for a period of three years from holding an office that is a listed authority, from being a member, co-opted member, officer or member of staff of a listed authority and from holding a paid office to which appointment is by a listed authority. However, it makes clear that that does not include offices to which a person is elected or, in the case of the Assembly Cabinet, chosen by the First Minister. We feel that that would be an abuse of the democratic process.
  I am sure that the Committee will agree that disqualification should not extend to positions in a listed authority to which the former ombudsman is democratically elected. The Bill therefore makes clear that a former ombudsman is not disqualified from being, for example, an Assembly Member in the National Assembly for Wales. Amendment No. 11 would remove that clarification.
  The Bill also attempts to address the situation, should it ever arise, in which an ombudsman is elected as an Assembly Member and immediately relinquishes the office of ombudsman. The Bill provides that, in that situation, the other Assembly Members can resolve that he or she is not disqualified from being an Assembly Member by virtue of having been the ombudsman at the time of his or her election. That is the policy intention behind the Bill's provision whereby the Assembly can resolve to disregard the disqualification that would normally prevent the ombudsman being an Assembly Member.
  The Government have sought to give effect to that policy intention by following closely the disqualification provisions in the Government of Wales Act. However, the amendment tabled by the noble Lord, Lord Roberts of Conwy, has caused us further to consider whether we have achieved the desired effect. The related provision in the Government of Wales Act, Section 13(3), provides that the Assembly may resolve to disregard certain grounds of disqualification that would otherwise debar a person from being an Assembly Member, provided, first, that the ground in question has been removed and, secondly, that it is proper so to resolve. That makes it quite clear that the disqualification can be disregarded only where a person—in our example, the ombudsman—has given up the disqualifying office in order to take his place as an Assembly Member.
  The Government will be giving further consideration to whether the disqualification provisions in the Government of Wales Act have been fully replicated, and we thank the noble Lord for bringing that to our attention. In the light of that, I invite the noble Lord to withdraw his amendment while we reflect further on the matter and consider whether an amendment needs to be tabled on Report.
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  4.15 p.m.
  I have a note on the very specific question that the noble Lord, Lord Roberts of Llandudno, asked on Amendment No. 9. Paragraph 5(1)(b) of Schedule 1 disqualifies a person from being the ombudsman—
  The Deputy Chairman of Committees: The sound system seems to have stopped working. I do not think that I can take personal responsibility for that. As it is a small Committee, perhaps we may continue.
  Lord Evans of Temple Guiting: Does Hansard have a recording?
  The Deputy Chairman of Committees: That is a good point; apparently it does not. If we adjourn for five minutes, perhaps Hansard will be able to send two shorthand writers to take down our proceedings. Members of the Committee can relax in the meantime and we will resume then.
  [The Sitting was suspended from 4.17 to 4.27 p.m]
  The Deputy Chairman of Committees: I think that the Minister had almost finished replying to Amendment No. 7. He had just a small point to pick up.
  Lord Evans of Temple Guiting: I had in fact finished replying, but I was mid-way through an answer to the noble Lord, Lord Roberts of Llandudno, on Amendment No. 9.I covered the issue in my speech, but perhaps it would be helpful if I went into a little more detail. Paragraph 5(1)(b) of Schedule 1 disqualifies a person from being an ombudsman if he or she "is a listed authority". The noble Lord's asked how a person can be a listed authority, given the nature of the bodies listed in Schedule 3. Paragraph 5(1)(c) states that a person cannot be the ombudsman if,
  "he is a member … of a listed authority".
  Hence we feel that Amendment No. 9 is unnecessary and the noble Lord's concern is already catered for in the Bill.
  The drafting of paragraph 5(1)(b) derives from the fact that some bodies in Schedule 3 are individuals—for example, the Forestry Commissioners and the Office of Her Majesty's Chief Inspector of Education and Training in Wales. I hope that that satisfactorily answers the question raised by the noble Lord, Lord Roberts.
  4.30 p.m
  Lord Rowlands: I give my full support to my noble friend in resisting Amendment No. 7. It goes too far to suggest that the National Assembly for Wales must approve the appointment of the ombudsman. Such an appointment would give undue influence to the Assembly.
  I should like to clarify that my noble friend intends to amend paragraph 4(1) to make it consistent with the amendment that he proposes in principle on the appointment—in other words, we make the appointment of the acting ombudsman in the

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  consultation process identical to the proper appointment. If he gives that assurance, I think that we would be more than happy.
  Lord Evans of Temple Guiting: I can once again please my noble friend Lord Rowlands by saying that that is precisely our intention.
  Lord Roberts of Conwy: I wholeheartedly agree with the Minister that the appointment of the acting ombudsman should "differ as little as possible"—I think that I have quoted his exact words—from the appointment of the ombudsman. I also thank him for the notice that he has taken of my Amendment No. 10, which relates to paragraph 6(2). As he will appreciate, in the context of this disqualification, sub-paragraph (2) does not read well, in that it implies a power that can be exercised by the Assembly at any time. I see no objection to a former ombudsman becoming a member of the Assembly. I am most grateful to the Minister for having another look at that sub-paragraph.
  Lord Roberts of Llandudno: I thank the Minister for those assurances. What really concerned me was the possibility that a serving ombudsman could also be a serving member of the Assembly. That will not be the case. I look forward to seeing the amended version on Report. For now, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 8 to 11 not moved.]
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 12:
  Page 29, line 30, at end insert "which shall be transparent"
  The noble Lord said: The amendment seeks to emphasise that the terms of the ombudsman's appointment, as agreed by the Assembly, should be transparent, by which I mean that they should be open to public scrutiny. Presumably, such terms would be available under the Freedom of Information Act. I should be grateful for confirmation of that by the Minister if that is indeed the case.
  Amendment No. 13, which is grouped with Amendment No. 12, seeks to clarify the terms under which the ombudsman delegates a function. It is very important that they should be in writing to avoid confusion. That is a difficult point to establish, but the ombudsman has very considerable investigative powers and it is important when he delegates a function. The functionary will be dealing with people outside his own organisation, and it is very important that his credentials should be firmly established. I believe that it would be helpful if that was done in writing. I beg to move.
  Lord Evans of Temple Guiting: We were not certain to what the noble Lord, Lord Roberts, was alluding when he tabled Amendment No. 12. I am grateful to him for clarifying his intention. Both the Assembly and the ombudsman are subject to government accounting rules and audit by the Auditor-General for Wales. These accounts have to be published by the Assembly under the provisions of the Government of Wales Act. Any payment to the ombudsman could not
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  be anything other than transparent. For that reason we do not consider that this amendment is necessary. Of course, under the Freedom of Information Act it would be possible, if necessary, to find out what the salary was, but, as I have said, they will be published in the Assembly's accounts.
  However, I should explain that, on salaries, the ombudsman will be paid in accordance with the appropriate point on the judicial scale and further discussion will be needed on what that point should be. As the noble Lord will know, changes to salaries of this type are perceived in the light of recommendations of the Senior Salaries Review Body, whose reports are published. So, again, there is no lack of transparency.
  Amendment No. 13 would make it a requirement that when the ombudsman, or acting ombudsman, ceases to hold office and the Assembly decides to pay compensation to that person, the payment must be made in writing. I assume that that is an argument for transparency, but, in the Government's view, the amendment is not necessary. The Permanent Secretary of the National Assembly for Wales is the Assembly's principal accounting officer and he is personally responsible for ensuring the proprietary and regularity with which the Assembly's resources are spent. That is the normal mechanism for ensuring that such matters are conducted properly and appropriately. We do not see the need to make any special provision in this context.
  I also believe that we can safely assume that the ombudsman would not delegate one of his functions by word of mouth. In the real world, if the real world exists, it is almost inconceivable to me that that could not be done without writing letters.
  Lord Livsey of Talgarth: The Minister has just made the point that transparency would appear in the audited accounts of the Assembly. Page 29, line 30 of the Bill says:
  "as may be provided for by or under the terms of his appointment".
  Would that imply that, if the amendment tabled by the noble Lord, Lord Roberts, were accepted, the transparency would be in the public domain much earlier than it would be if it were in the Assembly's accounts, perhaps in a rather detailed way, but at a much later date?
  Lord Evans of Temple Guiting: I am not sure that that would be the case. The point of the amendment, which I fully support, is that in the appointment there should be absolute transparency and any member of the public should be able to find out what is the ombudsman's salary. It is perfectly reasonable to look at the accounts or use the rights under the Freedom of Information Act to find that out. We do not see the need to go any further than that.
  Lord Roberts of Conwy: I am grateful to the noble Lord for his comments on these two amendments. Perhaps I may ask whether terms and conditions actually cover more than salary. I should have thought

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  that they do, although salary may of course come into them. I am interested in terms and conditions as a whole.
  Presumably, as the noble Lord said, salary and any other expenses would be covered by the audited accounts. But terms and conditions would not necessarily be available to the public. I think that these terms and conditions should be available and possibly might be available under the Freedom of Information Act. So I would be grateful if he could cover that point.
  We require transparency, and I think that the public requires it these days. With regard to the delegation of functions, I hear what the noble Lord has said. But I would ask him to bear in mind when he comes to give further consideration to these matters that the functions the ombudsman delegates may very well be exercised on listed authorities and so on. It should be very clear that the functionary has full authority, and I think that it should be in writing.
  Lord Evans of Temple Guiting: As I understand terms and conditions, the two major items would be the length of contract and the salary. Of course in any job at this level there will be other matters that have to be discussed; for example, secretarial help, expenses, cars and so on.
  I would not expect these matters to be in the public domain. The major items should be in the public domain. Does the ombudsman have access to a computer at home, paid for by the taxpayer? These are important issues in a contract of employment, but I really do not think that they are major enough for us to say, "Yes, we can display all the terms and conditions for this job".
  Having said that, we shall have a look at the matter and, if necessary, I will come back to the noble Lord, Lord Roberts. But I think that salary and contract length are the two critical things in conditions and employment at this level.
  Lord Roberts of Conwy: I am grateful again to the noble Lord and particularly for the further consideration that he is going to give to the point that I made. After all, this is a very important public office and people are entitled to know what benefits holders of such an office actually enjoy. There could be a lot of public pressure to know the terms and conditions of the appointment. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 13 not moved]
  The Deputy Chairman of Committees: Before I call the next amendment, I should inform the Committee that it is my understanding that the microphone lights are coming on, which indicates that the Committee is being recorded by Hansard upstairs. That is fine, but it does not mean that we are being amplified. Therefore, bear that in mind. If anybody thinks that they can whisper, it may not be heard by everybody present. But
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  we are a small Committee and I do not think that it means that we need to shout at each other. If that is understood, I call Amendment No. 14.
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 14:
  Page 31, line 21, after "Assembly" insert "and both Houses of Parliament"
  The noble Lord said: Amendments Nos. 14 and 15 both ensure that we in both Houses of Parliament are kept informed.
  Members of the Committee are well aware of the difficulties some of us have had in keeping track of Assembly documents and publications. I referred to the point at Second Reading, and I brought it to the personal attention of the First Minister, Mr Rhodri Morgan, when he attended a meeting in this House. I am bound to say that he did not appear to have been previously aware of our difficulty. I attach no blame to him or to his civil servants for that, but it is a fact that is well known to the Library of the House of Lords and to our Printed Paper Office.
  4.45 p.m.
  This is a piece of legislation to which we shall have devoted hours of our time and it will eventually result in annual and extraordinary reports, in which we shall be interested. While the legislation does not provide that either House of Parliament should have a formal role in such reports, nevertheless we are entitled to ask that they be provided to us. Some noble Lords will certainly be interested to see how the ombudsman's work is carried out. The sure way to ensure that is by passing these amendments. There is no obligation other than to supply us with the reports. We cannot rely on assurances. The ombudsman is obliged, under paragraph 14(4) of Schedule 1 to send copies of the reports,
  to any other persons he thinks appropriate".
  This is an order for him in advance of his appointment to supply such papers to ourselves in the House of Lords as "other persons", whom we hope he considers appropriate. I beg to move.
  Lord Livsey of Talgarth: I support the amendment. As the noble Lord, Lord Roberts, says, it has been difficult to get hold of all the relevant information in the Assembly. It is quite clear that the ombudsman in his report will make a number of investigations and outcomes known, but some of the issues raised may be of great interest, not only to Welsh Members of Parliament, but also to Parliament in general. There may be some very important issues and points of principle that people ought to know about early on rather than receiving the information second hand.
  Lord Evans of Temple Guiting: The noble Lord, Lord Roberts, made very strong representations at Second Reading about the difficulties that he and other noble Lords experienced in getting sight of the relevant policy documents that preceded this Bill. As I said at the time, I regret that. On investigation, we

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  discovered that copies of the consultation document had been lodged in the Libraries of both Houses, so the situation was not quite as bad as I had thought.
  We accept the principle that on matters like this, background documents should be available. In this case it appears that they were. I believe it is a matter of whether noble Lords are passive or active. Do they wish papers to be sent to them or should they be expected to make low-level inquiries themselves? The Assembly's website, for example, has all the information that is needed. However, we cannot see any rationale for making it a statutory requirement that the ombudsman must lay a copy of any annual or extraordinary reports that he lays before the Assembly before both Houses of Parliament. No such provision exists for the current offices in Wales and I am not aware of it having been a concern or having caused difficulties for Parliament.
  I also wonder what benefit that would have when there is no requirement for either House to consider or to respond to such reports. That quite rightly rests with the Assembly. One could even argue that the amendment flies in the face of the spirit of devolution, but perhaps that is going a little too far.
  I am sure that the ombudsman will have noted this amendment and I encourage him to be proactive in providing copies of these reports to the Libraries of both Houses. If at some point in the future it is demonstrated that there is a need for this to be put on a more formal basis, then the Assembly may wish to use its power under Paragraph 14(6) of Schedule 1 to give directions to the ombudsman in relation to the annual report. But I am very confident that that will not prove necessary, certainly after the discussions which the noble Lord mentioned with the First Minister.
  Given that explanation, I hope that the noble Lord, Lord Roberts, will feel able to withdraw the amendment.
  Lord Roberts of Conwy: I did not make my complaint at Second Reading without having checked beforehand with the Library and the Printed Paper Office. They verbally confirmed the difficulty that I referred to then and have referred to again now. However, I obviously take the Minister's explanation and comment to heart. I also appreciate the fact that the ombudsman will have heard our words on this subject. As he does have the power to send copies of reports to any other persons he thinks appropriate, I can only reiterate my view that he regards both Houses of Parliament as being appropriate for the receipt of his reports. With that, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 15 not moved.]
  Schedule 1 agreed to.
  Clause 2 [Power of investigation]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 16:
  Page 2, line 1, leave out "(but only if)"
  The noble Lord said: Amendment No. 17, which is on much the same lines as Amendment No. 16, and Amendment No. 18, which is slightly different, are grouped with Amendment No. 16. The point of all these amendments is to highlight the concern that we ease the path of the aggrieved person and do not make it too difficult for him to complain.
  The qualification that Amendments Nos. 16 and 17 seek to remove, while questionably necessary, does have a very forbidding look about it. The message seems to be, "Complain only if you must". Similarly, the statement in Clause 2(5), which Amendment No. 18 modifies, gives the ombudsman absolute discretion on whether to begin, continue or discontinue an investigation. He should, I suggest, act within the spirit as well as the letter of the Bill.
  I am sure that the Minister has already grasped the point that I seek to make. We wish the ombudsman to bend over backwards and be helpful to complainants rather than frighten them off, possibly to reduce his own workload. I beg to move.
  Lord Prys-Davies: I should very much like to support Amendments Nos. 16 and 17. The words "but only if have, as the noble Lord, Lord Roberts, has explained, worrying overtones. It seems to me that it is implicit in the words "but only if that there is a constraint and limitation. Surely it should be possible for the ombudsman to consider a complaint that comes to him along a route that is perhaps different from that spelt out in the Bill. If a complaint comes to him along a different route and he believes that an investigation would be justified by the evidence, then he ought to be able to do so.
  While I am on my feet, perhaps I may ask my noble friend the Minister to explain to me what would be the position where the complainant lodges a complaint with a listed authority, and the listed authority takes more than 12 months to consider the complaint and then rejects it. Would it be possible for the complainant then to lodge a complaint with the ombudsman? If the words "but only if remain in the Bill, then it seems to me that he would have no discretion whether to consider such a complaint. Indeed, when one thinks about it, there are numerous situations where a complaint would come to the ombudsman along a different route. So I would be very grateful if my noble friend could offer some guidance on whether those routes are available to him.
  Lord Livsey of Talgarth: I should like to support both what the noble Lord, Lord Roberts, has said and what the noble Lord, Lord Prys-Davies, has said. I think that this provision could limit access to the ombudsman, and that is a very serious matter indeed. The citizen should always be able to gain access to the ombudsman. There should be no barriers in the way of pursuing that access.
  Lord Evans of Temple Guiting: Perhaps I should say at the outset that the Government cannot accept Amendments Nos. 16, 17 and 18. We do not believe that these amendments would improve the Bill. Indeed, we believe that they would introduce an element of uncertainty where it is very important that

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  none should exist. The words "but only if' put beyond doubt that a complaint can be considered by the ombudsman only if it is duly made or duly referred— in other words, only if the requirements of Clause 2(2) or Clause 2(3) are met. The ombudsman has wide powers that are engaged only when a complaint is "duly made" or "duly referred" to him.
  It is therefore important to know beyond doubt in what circumstances a complaint is considered to be duly made or duly referred to the ombudsman. The effect of the noble Lord's amendments would be to open up the possibility of a challenge about when a complaint has been duly made or referred to the ombudsman. That is the sort of argument on a purely procedural issue that we should not encourage. It is a small risk, but a risk none the less.
  I turn specifically to Amendment No. 18. The purpose of the clause to which this amendment relates is to give the ombudsman a wide discretion to decide whether to begin, continue or discontinue an investigation, but only where he is entitled to investigate that matter. The ombudsman could not initiate an investigation of a matter unless a complaint about that matter has been duly made or duly referred to him. That is the effect of Clauses 2(1) and 2(5).
  It is inherent in the Bill that the ombudsman can act only in accordance with the legislation that governs his office. To do otherwise would be a folly, opening up his decisions to judicial review with any consequential loss of faith in the ombudsman service by members of the public and/or listed authorities. For those reasons we believe that this amendment is unnecessary.
  My noble friend Lord Prys-Davies asked what will happen if a listed authority takes unreasonably longer than a year to deal with a complaint made to it. In those circumstances, the aggrieved person can complain directly to the ombudsman, who would be able and likely to disapply the normal one-year time limit. It would, of course, be a matter for the ombudsman in each case.
  In the light of that explanation, I hope that noble Lords will not press these amendments.
  5 p.m.
  Lord Roberts of Conwy: I was trying to make the point that the phrase "but only if frightens people off; it is a forbidding injunction. One is tempted to ask what the words in brackets add to the statement. So far as I can see, they add nothing. The Bill is very clear about what is a "duly made" complaint: it is defined in paragraphs (a) and (b) of subsection (2). A "duly referred" complaint is defined in subsection (3), which states:
  "A complaint is 'duly referred' to the Ombudsman if (but only if)"
  and sets the conditions out in paragraphs (a) and (b). Why should we provide that the complaint is "duly referred" to the ombudsman "if (but only if)"? Not only does it seem superfluous but members of the
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  public reading the legislation would find it rather forbidding. It would make no difference to the content of the subsections if those words were left out.
  Amendment No. 18 relates to subsection (5), which provides:
  "It is for the Ombudsman to decide whether to begin, continue or discontinue an investigation".
  One accepts that, but does it really have to be included in the Bill? It seems a totally unhelpful attitude towards an aggrieved person who may wish to complain. However, I have heard the Minister's view, and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 17 and 18 not moved.]
  Clause 2 agreed to.
  Clause 3 [Alternative resolution of complaints]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 19:
  Page 2, line 25, leave out "must" and insert "may"
  The noble Lord said: Clause 3 will be helpful to an aggrieved person, but why must an action be taken in private? Surely there is room for discretion. Why should the ombudsman always have to hide his light under a bushel? It has been said that the danger with hiding your light under a bushel is that you never know when it has gone out. Of course there will be circumstances where the ombudsman must act in private but there will be other occasions when such action in private will be difficult and the certainty of privacy almost impossible to guarantee.
  Let us take, for example, a person with a legitimate grievance against a local authority that the authority readily accepts as an error. The ombudsman may not be able to tell the aggrieved person in so many words because he cannot guarantee that the knowledge he imparts will not become public, in which case the aggrieved person will never know what really went on and how his complaint was settled. The ombudsman should have some discretion in these matters. Therefore, I propose to substitute "may" for "must". I beg to move.
  Lord Evans of Temple Guiting: It is a well established tradition of ombudsmen in the UK that any action taken by an ombudsman in relation to the investigation of a complaint is taken in private. That relates to the formal investigation of a complaint under Clause 13.
  The noble Lord will see that Clause 13(2) makes the necessary provision for investigations to be in private. But it should also apply, in the Government's view, to the more informal methods of resolving a dispute, through discussion and negotiation. We do not believe that those more informal mechanisms will be as effective if the possibility arises that they might be pursued in public.
  The amendment would also introduce an inconsistency between formal and informal dealings with complaints, which the Government believe could not be justified. It might also serve to undermine the effectiveness of the informal mechanisms for resolving

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  disputes, which, we believe, are a very welcome innovation in the Bill. For those reasons, I invite the noble Lord to withdraw his amendment.
  Lord Roberts of Conwy: I am still mystified by the requirement that the ombudsman takes the action in private. How can he guarantee that it will remain private? Others such as the complainant and whoever he has complained against will be involved. Knowledge of the outcome may seep out to the press and the public. Although I am prepared to withdraw the amendment for the time being, I commend my remarks for further consideration by the Minister.
  Amendment, by leave, withdrawn.
  Clause 3 agreed to.
  Clause 4 agreed to.
  Clause 5 [Requirements: complaints made to the Ombudsman]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 20:
  Page 3, line 3, at end insert "or by email"
  The noble Lord said: I am not sure whether e-mail counts as writing in law. For the sake of clarity, the amendment seeks to include such communication on the face of the Bill. These days, most professional people—lawyers, doctors and so on—use e-mails to communicate. I believe that such communications have some legal validity. The same question arises over the writing requirement in Clause 6(1)(c). I should be grateful if the noble Lord would remove any lingering doubt about the efficacy and validity of such communications by e-mail. I beg to move.
  Lord Evans of Temple Guiting: The Government sympathise entirely with the spirit of the amendment but believe it to be unnecessary. A complaint "made in writing" includes those written by hand and submitted by conventional methods—the Royal Mail—and those made by electronic means and submitted via electronic mediums such as e-mail or facsimile. It would indeed be an anomaly to prevent the ombudsman considering a complaint submitted by e-mail, but we are satisfied that that is not the effect of the Bill.
  In any event, I remind the noble Lord that the ombudsman has discretion under Clause 2(4) to dispense with a requirement for a complaint to be made in writing if in the circumstances of the case it would be reasonable to do so. Members of the Committee will remember that the issue arose at Second Reading, when it was pointed out that there might be disabled people who are unable to write. I hope that I made it clear then that the ombudsman could still consider their representations.
  In the highly unlikely event of a court holding that writing excludes e-mail, the ombudsman could still accept e-mail complaints through use of the discretion in Clause 2(4). So we are entirely in agreement with the noble Lord about allowing complaints to be submitted by e-mail but we do not need this amendment to achieve that. In the light of that, I would be very grateful if the noble Lord would withdraw his amendment.
  Lord Roberts of Conwy: I am most grateful to the noble Lord for explaining the position, which I did not
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  know in the detail that he has given, and for reminding us of the ombudsman's discretion. I am satisfied with what I have heard and therefore I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 21:
  Page 3, line 4, leave out paragraph (b).
  The noble Lord said: Amendments Nos. 22 and 23 are also included in this group. These are probing amendments.
  One could think of all kinds of reasons why an aggrieved person might find the one-year requirement difficult to meet. The year begins,
  "on the day on which the person aggrieved first has notice of the matters alleged in the complaint".
  That is very precise and begs the question what is "notice" in this context. Is it when the complainant first brings the matter to the attention of the relevant authority, or when the authority replies in an unsatisfactory way, causing the complainant to object? Or is it still further back in time—the occasion of whatever causes the complainant to approach the authority? There seems plenty of scope for argument here, but the final arbiter is the ombudsman himself and there is no appeal against his decision. I can well understand the need for some sort of time limit but must it be quite so precise and yet imprecise at the same time, and open to question? I shall be interested to hear what the noble Lord says about it.
  Amendments Nos. 22 and 23 deal with the same problem of defining the starting date of a complaint in paragraphs (b) and, to a lesser extent, (d) of Clause 6(1), as in Clause 5(1). Paragraph (d) is clear in that it defines the start of the year as being,
  "the day on which the complaint was made to the listed authority."
  Whatever may have happened to the complaint since the authority had received it, if it does not reach the ombudsman within a year it will be out of time and presumably subject to the ombudsman's discretion as to whether he deals with it or not. Does he have discretion if there has been delay or dilatory tactics used? The noble Lord, Lord Prys-Davies, touched on that point earlier.
  If we work back from Clause 6(l)(d), in which the start day is defined as the day on which the complaint was made to the listed authority, the start date in Clause 6(1)(b) cannot be the same. Similarly, the start date in Clause 5(1)(b) cannot be the same. I need further clarification, but I may be somewhat dilatory myself in understanding the provision. I beg to move.
  5.15 p.m
  Lord Prys-Davies: I had understood the phrase,
  "first has notice of the matters alleged in the complaint",
  to mean the date when he first became aware that he had a cause of complaint. I shall be interested to hear my noble friend's explanation.
  Lord Roberts of Conwy: My point was: when does one become aware of the fact that one has a complaint?

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  It could be when one writes to the authority or it could be when one receives an unsatisfactory reply from the authority. Those will be different dates.
  Lord Prys-Davies: Yes, I am grateful for that. Surely one cannot be absolutely certain of the date when one appreciates that one has a cause of complaint, but I had understood it to mean when he or she appreciated that the service that he or she had received was defective and could, on grounds of maladministration, lodge a complaint with the ombudsman.
  Earlier—possibly at the wrong stage—I raised the case of an aggrieved person who makes a complaint to the listed body within the time limit but the listed body rejects it after the expiration of the time limit. Perhaps my noble friend can confirm whether the ombudsman would be able to receive that complaint.
  Lord Evans of Temple Guiting: Amendment No. 21 would remove the general requirement that the complaint must be made to the ombudsman before the end of one year after the date that the person aggrieved first had notice of the matter alleged in the complaint. We must define the word "notice" as, "knows or ought reasonably to have known what was happening". With that explanation of the word "notice", we can see that, if necessary, the ombudsman can use his discretion.
  It is entirely reasonable to expect a person who believes he has suffered injustice or hardship as a consequence of the action of a listed authority and wants to make a complaint to the ombudsman to do so within a reasonable time. We believe that a period of one year from the date that the person aggrieved first has notice of the matter that gives rise to the complaint is reasonable.
  The ombudsman is expected to consider or investigate a complaint in a way that is fair and equitable to all parties concerned. He is neither for nor against the citizen or the listed authority. That will help to ensure that all parties can still respond fully to a complaint as the matter should be within recent memory and records should still be available. However—this point is crucial—the ombudsman is not prevented from considering a complaint the genesis of which is more than one year old. The ombudsman may accept such a complaint made outside the normal time limit if he or she decides that, in the particular case, it is reasonable to do so. That important protection for the citizen is provided for in Clause 2(4).
  Another important protection for the person aggrieved is that the one-year time limit runs from the date that he or she first has notice of the matter giving rise to the complaint and not from the date of the event itself. The argument for retaining the time limit in Clause 6(1)(b) is essentially the same as the one that I adduced for complaints that are made directly to the ombudsman—that is, to ensure finality in relation to decisions or actions of listed authorities and to ensure that complaints are made within a reasonable time of the events giving rise to them so that the risk of fading memories and lost or damaged documents and so on is minimised.
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  The time limit does not relate to complaints to listed authorities generally. It does not prevent a listed authority considering a complaint, even if the complaint is made 50 years after the events giving rise to it. Whether the listed authority accepts the complaint—for example, for consideration under its own complaints procedure— is a matter for the listed authority.
  The time limit in Clause 6(1)(b) applies only in the context of complaints made to listed authorities, which are then referred by that listed authority to the ombudsman. The time limit is entirely reasonable and appropriate for the reasons I have explained. Furthermore, the ombudsman has discretion under Clause 2(4) to accept a referred complaint even if the time limit has not been complied with if he considers it reasonable to do so.
  The noble Lord, Lord Roberts of Conwy, asked whether the start dates of the time periods in Clauses 6(1)(b) and 5(1)(b) are different. It could be the case that the aggrieved person makes a complaint to a listed authority, but that the listed authority acts in a dilatory manner, so there is an unreasonable delay. It is true that the time period in Clause 6(1)(b) starts on the date the complaint is made to the listed authority, but the person aggrieved can always complain directly to the ombudsman, who would look at the case on its facts. If the delay of the listed authority has taken the aggrieved person outside the time limit set in Clause 5(1)(b), he may well disapply that time limit and accept the complaints. As I have said, it is a matter for the ombudsman in each case.
  Before I sit down, I must apologise to my noble friend Lord Prys-Davies. I gather that the answer to his question is, "Yes", but I have forgotten what the question was.
  Lord Prys-Davies: The question that I asked earlier and perhaps prematurely was: if the aggrieved person had made a complaint to the listed body and the complaint was rejected after the expiration of the 12 months, would the ombudsman be in a position to accept the complaint and, if he thought it appropriate, launch an investigation?
  Lord Evans of Temple Guiting: He would be able to under the provisions in Clause 2(4).
  Lord Roberts of Conwy: I am again grateful to the noble Lord for his detailed explanation. I think that we are all saved by the ombudsman's discretion. In his further consideration of the Bill, the noble Lord may wish to note the differences in Clauses 5 and 6 in the definitions of that year's start. There are three definitions and it may be possible to reconcile them. Leaving the noble Lord with that thought, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 5 agreed to.
  Clause 6 [Requirements: complaints referred to the Ombudsman]:
  [Amendments Nos. 22 and 23 not moved.]
  Clause 6 agreed to.
  Clauses 7 and 8 agreed to.
  Clause 9 [Exclusion: other remedies]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 24:
  Page 4, line 44. leave out paragraph (b).
  The noble Lord said: Again, this is a probing amendment. I should be grateful if the Minister would remind us of instances and the context where a member of the public has a statutory right of appeal to a Minister or to the Assembly.
  There is the whole area of planning law and inquiries of various kinds where a Minister or the Assembly can appoint inspectors or other persons to act in a judicial or quasi-judicial capacity. Is that what is meant by paragraph (b)?
  In my experience, it is often after such inquires that problems arise, along with feelings of injustice as a result of evidence being ignored or misinterpreted. The Children's Commissioner for Wales, who has already been mentioned, has felt it necessary to re-open certain cases that many thought were closed. He has re- opened them because the complaint arose post hoc.
  It may be that the ombudsman too will come under public pressure to re-examine certain matters that have been subject to an appeal to Ministers or the Assembly. Is he to be debarred from doing so? That is the point of Amendment No. 24.
  In this group we are also considering Amendments Nos. 25, 26 and 27. Amendment No. 25 to Clause 10 deals with other excluded matters the ombudsman may not investigate. Schedule 2 lists them. Amendment No. 25 refers to subsection (2) which empowers the Assembly to add or remove an entry or, indeed, to change an entry in Schedule 2.
  The purpose of Amendment No. 25 is to probe the circumstances under which a current entry might be changed. We can all envisage a change in legislation which might require an amendment to the wording of the schedule. Are other circumstances anticipated where a change might be required? Clearly, care has to be taken to ensure that this power is not abused and is not used as an escape hatch to avoid or stifle complaints.
  Amendment No. 26 belongs to the noble Lord, Lord Rowlands. I shall listen to him with great interest. However, while I am on my feet perhaps I may comment on Amendment No. 27, which seeks to discover what aspects of education are left for the ombudsman to investigate after all these exclusions relating to teaching in our schools.
  Of course, we shall be told that these are properly matters for the inspectorate of schools, which some Members of the Committee have been dealing with in the Education Bill. My attention will also be drawn, no doubt, to Clause 10(3), which does not prevent the ombudsman investigating action by a local education authority or any other listed body in operating a procedure to examine complaints or review decisions.
  Education is a very important area and a fertile ground for complaints. I hope that the noble Lord will be able to tell us of the role anticipated for the
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  ombudsman in education, which traditionally has been regarded as a preserve of the educational experts. Could the ombudsman, for example, examine a procedure for the appointment of teachers or head teachers—an issue which in Wales has from time to time leapt into the news in a plaintiff fashion? I beg to move.
  5.30 p.m.
  Lord Rowlands: Before addressing Amendment No. 26, tabled in my name, I should like to make one or two observations on the amendments in the name of the noble Lord, Lord Roberts of Conwy. I consider Clauses 10 and 27 to be two of the most useful and important clauses in the Bill because they transfer legislative competence to the National Assembly potentially to amend the powers of the ombudsman, in this case either to change or alter the schedule of exclusions and, in Clause 27, to alter the listed authorities. I think that that is a useful and important transfer of legislative competence. I have been a strong supporter of building up the legislative competence of the National Assembly for Wales, and it is clear that Clauses 10 and 27 take another step forward in that direction.
  I understand that the amendments of the noble Lord, Lord Roberts, are probing in nature, but the consequence of one of his amendments would be to limit the competence of the National Assembly to alter or amend in respect of Schedule 2, covering excluded matters. I am a little puzzled because the powers proposed in Clauses 10 and 27 were reviewed by our own Select Committee on Delegated Powers and Regulatory Reform. On Clause 10(2), which the noble Lord, Lord Roberts, seeks to amend, at paragraph 34 the committee concluded that:
  "It is considered that this power of delegated legislation is reasonable. It will provide desirable flexibility as the matters which should be excluded from investigation by the PSOW may need to change over time as the ways in which services delivered to [the] public in Wales alter".
  The committee has endorsed this useful additional order-making power for the Assembly.
  Turning to Amendment No. 26, tabled in my name, I find it impossible to believe that the National Assembly would seek to exercise the power of altering or amending Schedule 2 without consulting the ombudsman. Not only would it consult him, it would seek his agreement. After all, if the Assembly proceeds to alter the schedule, that would affect the operation of the ombudsman in a very direct and immediate way, placing either extra responsibilities on him to further investigate or taking away some of that investigative responsibility. Therefore it would be incumbent on the National Assembly not only to consult with, but also probably to seek the agreement of, the ombudsman before exercising its power—a power I fully support— to change or alter Schedule 2.
  On looking at Schedule 2, it is hard to see what alterations would take place. I assume—although perhaps my noble friend could confirm the point—that the list in the schedule comprises a honed and well established series of exclusions. Nevertheless, situations

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  could arise in the health service or in education which may lead the ombudsman himself to recommend or suggest that the schedule should be altered. That would be perfectly reasonable. Indeed, I suspect that it would be through his experience that any alterations to the schedule would be made. However, if the National Assembly wanted to proceed not by the process of heeding a recommendation from the ombudsman to alter or amend his powers, then I think that there should be an obligation for the Assembly to both consult and seek the agreement of the ombudsman before exercising its order-making power.
  Clause 10 does not contain even the modest provision set out in Clause 27. In the latter clause, at least when the Assembly exercises its order-making power, it will have to
  "consult such persons as it thinks appropriate".
  Clause 10 does not even provide for that. I do not think that that is good enough; it is not good enough even with the extra provision in Clause 27, which we shall consider in detail on a later amendment. The ombudsman is to occupy a very specific and special position. If the National Assembly changes or seeks to change his powers and jurisdiction, either by changing the exclusions or by altering the listed authorities, surely both consultation and agreement should be sought.
  I hope that my noble friend will consider this point sympathetically.
  Lord Prys-Davies: I support the contribution made by my noble friend Lord Rowlands. The clauses which the noble Lord, Lord Roberts of Conwy, proposes to amend will empower the Assembly to pass delegated legislation.
  I am particularly grateful to the Wales Office for submitting a very helpful memorandum to the Select Committee on Delegated Powers and Regulatory Reform. Further, it is worth noting the advice of the committee that there is nothing about the delegated powers being conferred by this Bill to which it wishes to draw the attention of noble Lords. That is a valuable finding and I thought that we should be made aware of the committee's judgment.
  My only question is one that I direct to my noble friend Lord Rowlands on his Amendment No. 26. In another clause the Bill provides for consultation by the Assembly, but not specifically with the ombudsman. I am not sure whether that ought to be spelt out in the Bill. However, I would be concerned if it was necessary for the Assembly to obtain the approval or agreement of the ombudsman before it could exercise its powers under Clause 10.
  Lord Evans of Temple Guiting: We have come to a very interesting set of amendments, which I shall spend a little time addressing.
  Subject to the ombudsman's discretion in Clause 9(2), the general approach is as follows. Where, in relation to a particular matter that is the subject of a complaint to the ombudsman, there is already provision for an appeal,
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  reference or review mechanism, or a remedy by way of proceedings in a court of law, the ombudsman should not be able to intervene. That other mechanism should be used.
  The purpose of Clause 9(1 )(b), which Amendment No. 24 seeks to delete, is to ensure the proper use of other appeal mechanisms by ensuring that generally the ombudsman cannot tread where, for example, Parliament has laid down an appropriate appeals mechanism. The type of appeal which this clause is intended to capture concerns, for instance, planning decisions where in some cases an appeal lies to a Minister of the Crown rather than to the Assembly. I cannot see the justification for removing the general bar on the ombudsman investigating a matter that is subject to an appeal mechanism to a Minister or the Assembly.
  In relation to Amendment No. 24, the noble Lord, Lord Roberts of Conwy, pointed out that often it is after an appeal of the kind referred to in Clause 9 that a person believes that he or she has suffered an injustice. The ombudsman does not provide a right of appeal. For example, where a person has a remedy by way of court proceedings, the appeal must be left to the court system. Similarly, if there is a right of appeal to a tribunal, but the tribunal interprets the law wrongly or otherwise reaches a decision that is appealable, that is a matter for the courts and tribunal system. The ombudsman is not a right of appeal.
  The intention of Clause 10(2) is to give the Assembly flexibility in relation to entries in Schedule 2. As we have heard, it allows the Assembly to add, change or remove an entry in the schedule. Clause 10(2)(c) allows the Assembly to change an entry that appears for the time being in Schedule 2. The noble Lord's Amendment No. 25 suggests that subsection (2)(c) should be deleted. That would take away the Assembly's flexibility to amend the description of an excluded matter in Schedule 2.
  Let us take, for example, the exclusion in paragraph 6(b) of Schedule 2, which prevents the ombudsman considering, among other things, complaints arising from the internal organisation or management of a local authority school. The Assembly might in future wish to bring such complaints within jurisdiction and could do so by order under Clause 10(2)(c), simply changing the entry to delete that part which refers to internal organisation and management and leaving the remaining provisions of paragraph 6(b) in place. The effect of the noble Lord's amendment would be to deny the Assembly that flexibility.
  The Bill needs to allow the ombudsman's jurisdiction to develop to reflect new circumstances and new ideas as to what it is appropriate that he or she should investigate.
  I have some sympathy with Amendment No. 26, which provides that if the Assembly wants to add, remove or change an entry in Schedule 2, it should do so only after consulting the ombudsman. As I said at Second Reading, I am happy to consider any suggestions from noble Lords that would improve the

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  Bill. A requirement to consult the ombudsman in these circumstances is such a suggestion. I shall take it away for further consideration.
  I am less sympathetic to the suggestion that the Assembly should be able only to add, remove or change an entry in Schedule 2 with the agreement of the ombudsman. It is the government of Wales in the form of the Assembly rather than the ombudsman which should be accountable to the public for the delivery of public services in Wales, and that includes ensuring that we have an ombudsman service that is fit for purpose. So the final decision on which matters should be within the ombudsman's jurisdiction should be for the Assembly.
  While I would hope that such a situation would never arise, if it did the ombudsman could, under the provisions of paragraph 14 of Schedule 1, prepare and publish an extraordinary report with respect to his functions as he feels appropriate. He would be able to make his displeasure publicly known, which would provide a powerful inducement to the Assembly to give full and proper regard to his views. Ultimately, however, the decision on the precise scope of the jurisdiction must be for the Assembly.
  Finally, I turn the attention of noble Lords to Amendment No. 27. The effect of this amendment would be to allow the ombudsman to investigate, but only in relation to those persons or bodies that are listed authorities, action relating to the giving of instruction by teachers in schools or other educational establishments that are maintained by local authorities in Wales.
  The intention of paragraph 6 of Schedule 2 is to replicate the effect of paragraph 5(2) of Schedule 5 to the Local Government Act 1974 as it currently applies in the context of the jurisdiction of the Local Government Ombudsman in Wales. If the intention of this amendment is to bring within the remit the giving of instruction in such schools and other educational establishments, that would be a very significant departure from the current position and one for which the Government are not aware of any appetite, including that of those in receipt of instruction or other stakeholders. There are already other mechanisms available to deal with such matters.
  Furthermore, the amendment would not have the effect that the noble Lord may have intended. The amendment would simply remove the exclusion in the context of the existing list of listed authorities in the Bill. Maintained schools and other educational establishments maintained by local authorities in Wales are not listed authorities and therefore the giving of instruction in those schools and establishments would not be directly within the remit of the ombudsman, even with this amendment.
  I invite the noble Lord to withdraw his amendment. However, his bringing it forward has caused us to look again at paragraph 6 of Schedule 2. As I said previously, the intention was to replicate the effect of the equivalent restriction in Schedule 5 to the Local Government Act 1974. However, we now think that paragraph 6 of Schedule 2 has some unintended
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  consequences. As currently drafted, it would apply across the board and have a limiting effect on the ombudsman's jurisdiction in the context of an investigation by the Office of Her Majesty's Chief Inspector of Education and Training in Wales. This is not something that we intended and we will consider the matter further before the Report stage.
  Before I sit down, I shall answer two questions asked by the noble Lord, Lord Roberts of Conwy. Would appointment of teachers be within the jurisdiction? The short answer is no. That is because individual schools are not bodies within the jurisdiction, although local education authorities are. It is individual school governing bodies that make such appointments. In what circumstances might the Assembly use the power in Clause 10(2)(c) to change an entry in Schedule 2? The noble Lord is interested in circumstances other than legislation and I have answered that point in my speech.
  Given that rather lengthy explanation—my last lengthy explanation—I hope that the noble Lord will withdraw his amendment.
  5.45 p.m.
  Lord Rowlands: I am grateful to my noble friend for his positive response to my amendment. I certainly do not want to push my luck further but I was anyway convinced by his case that there should be an obligation on the Assembly to get the agreement of the ombudsman. I am grateful to him for considering the idea that the formal consultation process will be recognised before the National Assembly exercises such power.
  It has been a marvellous afternoon: I think that that is the fourth amendment to which we have agreement in principle. As someone who comes from the other place and never saw Ministers give anything away, it is a pleasure to be here.
  Lord Roberts of Conwy: Perhaps I should begin by congratulating the noble Lord, Lord Rowlands, on his success in the Committee and his influence on the Government. Having said that, and although I am of course delighted with his success in gaining further government consideration of his amendment, I must point out that I began by saying that the amendments tabled in my name in this group are probing. I am grateful to the Minister for the enlightenment that he has given on several of them.
  However, I refer him again to the fact that it is often after appeals and inquiries that complaints arise. The recent experience of the Children's Commissioner for Wales is relevant. He has had to reopen certain cases that we all thought had been fully dealt with. Such matters may well be referred to the ombudsman. I note that the Minister said that the ombudsman is not a further appeal, as it were. Perhaps not, but he should surely have the power to take up a complaint, if he thinks it justified, that may arise subsequent to an appeal to the Minister or the Assembly. I hope that that matter will be further considered by the Government.

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  I am also grateful for the Minister's comments on education. The point of my Amendment No. 27 was, as I said, simply to discover what aspects of education are left for the ombudsman to investigate after all the considerable exclusions. In discussions on the Education Bill, we were told by the noble Lord, Lord Filkin, that there would be scope for the ombudsman to deal with educational matters. However, as I do not have the precise quotation from him to hand, I shall rest on his assurance and the assurance that we have received from the Minister today that he will further consider the whole area of education in relation to the ombudsman. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 9 agreed to.
  Clause 10 [Other excluded matters]:
  [Amendments Nos. 25 and 26 not moved.]
  Clause 10 agreed to.
  Schedule 2 [Excluded matters]:
  [Amendment No. 27 not moved.]
  Schedule 2 agreed to.
  Clause 11 [Decisions taken without maladministration]:
  Lord Evans ofTemple Guiting moved AmendmentNo. 28:
  Page 5, line 26, leave out "clinical judgement" and insert "professional judgement which appears to the Ombudsman to be exercisable in connection with the provision of health or social care"
  The noble Lord said: This is the first government amendment. There are one or two of them. The Committee may remember that I said previously that we would be tabling one or two.
  Clause 11 sets out the general principle that the ombudsman,
  "may not question the merits of a decision taken without maladministration by a listed authority in the exercise of a discretion".
  It also sets out an exception to that rule: namely, that the merits of a decision,
  "taken in consequence of the exercise of clinical judgement",
  may be questioned by the ombudsman. I gave notice at Second Reading that a government amendment on the clause might be tabled. I tabled it last week and wrote to the noble Lord, Lord Roberts of Conwy, explaining my reasons for doing so. I copied that letter to several noble Lords who took part in the debates and have a strong interest in the Bill. I also placed a copy of the letter in the Library. I should be happy to provide further copies of that letter on request to any noble Lord who may find it helpful.
  The ombudsman designate, Mr Adam Peat, has pressed for amendment to the clause. He is concerned to ensure that he will have adequate powers to consider the consequences for individuals of decisions made as a result of the exercise of professional judgment across
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  a wider arena than matters of clinical judgment, narrowly conceived. The Government believe that the amendment will give him those powers.
  As I explained in the letter, the amendment would extend the ombudsman's powers, enabling him to question the merits of a decision taken without maladministration in consequence of the exercise of professional judgment in connection with the provision of health or social care. Such professional judgment will of course include clinical judgment, but it will go wider.
  The provisions in Clause 11 as drafted reflect the position in the Health Service Commissioners Act 1993. That Act makes provision for the powers and jurisdiction of the Welsh and English Health Service Commissioners. The Health Service Commissioners are entitled to investigate complaints about service failure and failure to provide a service, as well as complaints of other maladministration against health bodies within their jurisdiction.
  The Bill entitles the ombudsman to investigate maladministration, failure to provide a service and failure in a service provided across the whole range of the ombudsman's jurisdiction. The specific provision in Clause 11 broadly reflects Section 3 of the Health Service Commissioners Act. Section 3 of that Act places a limit on the Health Service Commissioners by providing that a commissioner may not question the merits of a decision taken without maladministration in the exercise of discretion by a relevant body. However, that limitation does not apply to the merits of the decision to the extent that it was taken in consequence of the exercise of clinical judgment.
  As the Committee will be aware, the jurisdiction of the Public Services Ombudsman for Wales is much wider than that of the Health Service Commissioners, covering a wide range of authorities providing services in the public sector in Wales. In particular, local government falls within the ombudsman's remit and is responsible for the provision of most social care services in Wales. The fields of social and health care are becoming increasingly integrated and it is a reasonable precedent to consider whether other types of professional judgment in the health and social care arena should be treated in the same way as clinical judgment for these purposes.
  The Government have concluded that in this context there is no reason to differentiate between clinical judgment and other professional judgment exercised in connection with the provision of health or social care to individuals. Social care, like health, is an area where users of public services are likely to complain of service failure as well as, or in addition to, maladministration, and where decisions based on the judgment of professionals are likely to have a significant impact on the service provided to individuals. It seems inconsistent and illogical that the judgment of doctors can be called into question, even where there has been no maladministration, but that the judgment, for example, of social workers or occupational therapists working alongside clinicians in an individual's case cannot.

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  The government amendment, therefore, makes clear that decisions taken by a listed authority in consequence of professional judgments that appear to the ombudsman to be exercisable in connection with the provisions of health or social care would, for these purposes, all be treated in the same way. We think that that is a reasonable and fair approach. It would be very odd for clinicians and other professionals working together, for example, in relation to health and community care services, to be treated differently in the case of a complaint to the ombudsman about decisions made in relation to the care of the individual. I beg to move.
  Lord Livsey of Talgarth: I welcome the amendment. Social care is a very hot topic in Wales. Local authorities have had their policies—and, on some occasions, their lack of delivery—examined very carefully. This is a distinctly positive move forward, especially as it reflects maladministration, which is particularly relevant.
  Lord Roberts of Conwy: I, too, welcome this significant amendment. We are grateful to the Minister for explaining the reasons behind the change. It takes the remit of the Welsh ombudsman way beyond that of the Health Service Commissioner under the 1993 Act. We are also grateful to him for supplying a note on the change before Committee stage.
  I was particularly impressed with paragraph 7 of the note, which states:
  "as the new Ombudsman's jurisdiction is much wider than the Health Service Commissioner's, the question arises whether there are other types of professional judgement in the increasingly integrated field of health and social care which might form the basis of decisions that the Ombudsman should be able to question, just as he can question decisions taken in consequence of the exercise of clinical judgement".
  One can think of a variety of such judgments in the area of social care, as the noble Lord, Lord Livsey, said. They are usually taken by professionals at case conferences, are they not?
  I think that I am right in saying that the ombudsman is not empowered to question the judgment itself but he is entitled to investigate the subsequent decisions and actions taken or not taken. I would be glad if the noble Lord would confirm that. The professional judgment referred to includes clinical judgment. I cannot imagine that the ombudsman would try to second-guess a clinician's judgment in the health service, but I may be wrong.
  The immediate implication for listed bodies is that they must take a careful note for the record of any such judgments, and the decisions and action that flow from them, which may be subject to subsequent scrutiny; otherwise, they may find themselves at fault. I hope that they will be advised of that.
  Lord Prys-Davies: The noble Lord, Lord Roberts, has raised an important question arising from my noble friend's presentation of the amendment. Does it in fact mean that, henceforth, clinical judgments can be questioned by the ombudsman?
  6 p.m.
  Lord Evans of Temple Guiting: I gather that since 1993 matters relating to clinical judgments have been questioned by the ombudsman. The amendment simply takes that wider.
  Lord Prys-Davies: This is really a re-enactment of a particular clause.
  Lord Evans of Temple Guiting: Yes. The Bill as drafted is a re-enactment of existing legislation.
  On Question, amendment agreed to.
  Clause 11, as amended, agreed to.
  Clause 12 [Decisions not to investigate or to discontinue investigation]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 29:
  Page 6, line 21, leave out subsection (9).
  The noble Lord said: Clause 12 relates to decisions not to investigate or to discontinue an investigation and the ombudsman's duty to prepare a statement of his reasons and disseminate that statement to interested parties. The final subsection of the clause— subsection (9), which is the subject of this probing amendment—requires him to send a copy to the Assembly First Secretary. A similar requirement is imposed in Clause 16(9)—the clause that deals with reports of investigations—and in subsection (10) of Clause 20, which deals with the alternative procedure available to the ombudsman. My Amendment No. 39 deals with the last procedure, and I shall say a word about it in a moment.
  Is the submission of such statements and reports to the First Secretary instead of the Assembly per se simply a convenient means of ensuring delivery to a focal point in the Assembly set-up and ensuring that the First Minister at least knows what is happening? Any Assembly Member can request a copy of the ombudsman's statement or report under Clause 16, but it may well be that the matter dealt with will not be of sufficient interest for such a request to be made. Nevertheless, there is an obligation on the ombudsman to send a copy to the First Minister so that he can answer any question that may arise. Is that the thinking behind this subsection?
  I think that much the same relates to Amendment No. 39. As I said, Clause 20 deals with the alternative procedure available to the ombudsman, and subsection (10) deals with his report on it, which goes to the Assembly First Secretary rather than to the Assembly under subsections (4) or (6).
  It is not absolutely clear to me under what circumstances this subsection would apply. Under subsection (4), the ombudsman must send a copy of his report to the complainant and the listed authority but not necessarily to other persons—that is optional. Similarly, subsection (6) is optional. Therefore, subsection (10) implies that if the ombudsman does not consider that he should make a copy of his report generally available, he must nevertheless send a copy to the First Minister for information, I imagine, or in

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  the event of questions arising after a complaint. I should be grateful for the Minister's comments on these probing amendments. I beg to move.
  Lord Prys-Davies: I support subsection (9). I should have thought it was particularly important for the attention of the First Secretary to be drawn to the ombudsman's decision. We heard earlier at a meeting how the noble Lord, Lord Roberts of Conwy, and others had considered it essential to draw the attention of the First Secretary to the difficulties we were experiencing in obtaining documents from the Welsh Assembly. Therefore, I think that in this case it is important that at least one person at the Assembly receives notification of the ombudsman's decision.
  Lord Evans of Temple Guiting: The purpose of Clause 12 is to ensure that, where the ombudsman decides not to investigate a complaint or decides to discontinue an investigation, he sets out his reasons for doing so and makes any such decision and reasons known to the appropriate parties. In the case of the Assembly, Clause 12(9) makes it clear that such a statement that is to be sent to the Assembly—for example, because the Assembly is the listed authority concerned—must be sent to the Assembly's First Minister. The noble Lord's amendment would omit that subsection from Clause 12.
  Similarly, the purpose of Clause 20(10) is to ensure that, where the ombudsman prepares a report under that clause and intends to send it to the Assembly—for example, because it is the listed authority concerned— the report must be sent to the Assembly's First Minister. The noble Lord's amendment would omit that requirement from Clause 20.
  Members of the Committee may be wondering why the Government have considered it necessary to make such specific provision in the Bill. The reason is that, as currently constituted, the Assembly contains both legislative and executive components in a single corporate body. This subsection seeks to prevent any confusion arising from that dual nature.
  An ill-advised ombudsman might send the statement to the Assembly's presiding officer, representing the Assembly's legislative aspect, rather than to the First Minister, who is responsible for the discharge of executive functions and should properly receive it. That is consistent with provisions elsewhere in the Bill—for example, in Clause 16(9) —requiring reports of investigations of complaints against the Assembly to be sent to the First Minister. The Assembly's standing orders then make robust provision for considering ombudsman reports where an investigation upholds or criticises the Assembly government. The relevant Assembly Subject Committee considers the First Minister's proposed response to such reports and has an opportunity to comment on and inform that response.
  The effect of the amendments would, however, be to leave the Bill silent on to whom the ombudsman should send a statement setting out his reasons for deciding not to investigate a complaint or discontinue an investigation or a report under the alternative
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  reporting procedure. It would mean that the handling of such statements and reports would have to be left to administrative arrangements. In the Government's view, that would be an insecure foundation for the ombudsman's relationship with the Assembly. On the basis of that explanation, I invite the noble Lord to withdraw the amendment.
  Lord Roberts of Conwy: I am very grateful to the Minister for his elucidation and his answer to these probing amendments. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 12 agreed to.
  Clause 13 [Investigation procedure]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 30:
  Page 6, line 28, after "opportunity" insert "within a reasonable time"
  The noble Lord said: I should perhaps mention that there is an error in the amendment in that the words "within a reasonable time" would be better placed after the word "comment" rather than after "opportunity".
  Clause 13 deals with the ombudsman's investigation procedure, and the amendments proposed are designed to ensure that those who are given an opportunity to comment do so in reasonable time and that there is no unreasonable delay.
  Members of the Committee will be aware that aggrieved persons are particularly time-sensitive and wish their complaints to be dealt with as fast as possible. Any tendency for investigations to drag on interminably is anathema to them, and understandably so.
  At the same time, we must recognise that those complained against must, in all fairness, have sufficient opportunity to prepare their case fully and as best as they can. But there must be no intentional delays or postponement on their part. That would be an abuse of procedure and, alas, there have been instances of it in the past. The amendments would enable the ombudsman, in giving the opportunity to comment, to indicate when he expected to receive such comments. I beg to move.
  Lord Evans of Temple Guiting: I think that the intention behind the amendment is to require the ombudsman to give the listed authority a reasonable opportunity to comment on the allegations contained in the complaint. If that is the intention, with respect, I do not think that the amendment has that effect.
  The amendment would require the ombudsman to give the listed authority the opportunity to comment, within a reasonable time, on allegations contained in the complaint. An amendment having that effect is unnecessary because the ombudsman will always pursue a complaint as expeditiously as possible.
  As Clause 13 is currently drafted, there is no express reference to the time within which the listed authority, or any other person alleged in the complaint to have taken the action complained of, must respond to the

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  ombudsman and comment on the allegations made in the complaint. That is because the ombudsman is already required by the public law requirement of fairness to give the listed authority, and any person alleged to have taken that action, a reasonable opportunity to comment on the allegations. Therefore, it was not considered necessary to include in the Bill an express provision to that effect. I hope that the noble Lord finds my explanation persuasive and that he will withdraw his amendment.
  Lord Roberts of Conwy: As ever, I am grateful to the Minister for his comments. As I said at the outset, I think that my amendment has been badly drafted and perhaps the words "within a reasonable time" should have come after the word "comment". But, as I said, I am grateful and beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 31 not moved.]
  Clause 13 agreed to.
  Clause 14 [Information, documents, evidence and facilities]:
  Lord Evans of Temple Guiting Lord Evans of Temple Guiting moved Amendment No. 32:
  Page 7, line 20, leave out "any person he thinks appropriate" and insert "a person he thinks is able to supply information or produce a document relevant to the investigation"
  The noble Lord said: Amendment No. 32 relates to Clause 14(3). The policy intention behind that subsection is to ensure that the ombudsman will not be hampered in understanding the content of information or documents that have been provided to him because he does not have the equipment or facilities that he needs to be able to access them.
  An example would be where certain information relevant to a complaint had been stored electronically, but the ombudsman did not have the appropriate computer hardware or software to be able to view or print that information. Clause 14(3) gives the ombudsman the power to obtain the relevant hardware or software, or other facilities, from an appropriate person.
  Under the current draft of the clause, it is arguable that the ombudsman might have the power to require any other person, even if they had no control over the relevant information, to provide the required software or hardware. So, for example, the ombudsman might seek to require an IT company that has no connection at all with the complaint to provide the software that he requires in order to view the information.
  Although the ombudsman might well be unlikely to go that far in practice, we consider that the power is too wide and that it goes beyond our policy intention. As a result, the Government are seeking to amend Clause 14(3) to restrict its application to persons from whom information or documents may be required under Clause 14(1). I beg to move.
  6.15 p.m.
  Lord Roberts of Conwy: I wholly endorse this amendment. I agree that the original wording was too
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  broad and that, indeed, it might have incorporated the wrong people. The new wording is infinitely better and more to the point.
  On Question, amendment agreed to.
  Clause 14, as amended, agreed to.
  Clauses 15 and 16 agreed to.
  Clause 17 [Publicising reports]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 33:
  Page 9, line 22, leave out "three" and insert "four"
  The noble Lord said: In moving Amendment No. 33, I shall speak also to Amendments Nos. 34 to 36. Amendment No. 33 refers to the period for which a listed authority which has been the subject of an investigation must make the report publicly available at its offices or on its website. Perhaps at this point I should add that this is not a probing amendment— unless the Government answer the points that I wish to make.
  The Bill as it stands specifies,
  "a period of at least three weeks".
  That suggests to me that those who composed the Bill thought that the period was on the short side. And indeed it is. The more I think about it, the more I believe that the period should refer to months rather than weeks.
  The report of an ombudsman's investigation is important. It will be featured in the local press under subsection (3), which requires a press notice to be issued within a fortnight of receipt of the report. That press report—if it appears—may give rise to local comment. If the report is critical of the listed body, that will certainly give rise to publicity and people will want to see the report for themselves rather than rely on second-hand accounts. The availability of the report locally is therefore of paramount importance.
  I suggest that the Government consider this aspect again. The timing of a notice in the press within two weeks, coupled with three weeks for the availability of the report publicly in the area of the listed authority, is not right. It might mean that a person who sees the press notice has only one week to see the report locally. In my view, an availability period of three months would not be excessive.
  What I have said about Clause 17 is broadly applicable to Clause 18, which deals specifically with healthcare providers. As I understand Clause 18(5), the previous clause applies with only the modifications stated. Therefore, the requirements regarding the publicising of reports by the ombudsman, including the press notice within two weeks of receiving the report, also apply.
  If that is so, my criticism of the inadequacy of the three-week period for the report to be available to the public is equally valid in the case of healthcare providers. Again, I ask the Government to think again. The period of four weeks that I have suggested is an improvement but, if I may be critical of myself, it also is too brief.

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  The intention behind Amendments Nos. 35 and 36, which are probing amendments, is clear. It is to elicit the Government's thinking and suggest an alternative approach. The Government want a rapid reaction to the ombudsman's report, including the action that the listed authority has taken or proposes to take and when it intends to do so. That must be done within a month, or longer if permitted by the ombudsman.
  My guess is that the pleas for extra time will be the rule rather than the exception. A month is not a long time for a local authority. Local authority officers, for example, will wish elected members to approve their response, but their meetings may not fall within the month specified. As a result of the brevity of the time allowed, the nature of the response may also be tentative, kicking the issue into touch.
  Therefore, to avoid an inadequately considered response and pleas for extra time, in the long run might it not be better to fix a period of two months with no exceptions or extensions permitted? If the remedial action proposed in the report is achievable in less time, such time could be specified in the report itself. I am sure that the Government have considered such an approach. I beg to move.
  Lord Evans of Temple Guiting: I shall deal, first, with Amendments Nos. 33 and 34, amending Clauses 17 and 18 respectively, before turning to Amendments Nos. 35 and 36, which amend Clause 19.
  The Government have given very careful consideration to the content of these clauses, which reflect the naming and shaming provisions that apply in respect of the existing Welsh ombudsman and, indeed, other British ombudsmen as well. There is a precedent for the three-week publicity period. For example, three weeks is the period specified in this respect in the Scottish Public Services Ombudsman Act 2002, which established the Scottish Public Services Ombudsman. It is also the period for which reports of the Commissioner for Local Administration in Wales must be publicised under the Local Government Act 1974.
  The length of the publicity period does not seem to have created any problems in terms of the effectiveness of the naming and shaming provisions. In Wales, all recommendations of the Welsh Administration Ombudsman and Health Service Commissioner have been complied with and, since 1991, there have been only two occasions when a recommendation of the Commissioner for Local Administration has not been complied with.
  The Government are satisfied that the three-week publicity period is appropriate and they are also content that the ombudsman should have some discretion to issue directions as to how authorities discharge their functions under this clause.
  I turn to Amendments Nos. 35 and 36. The first of the noble Lord's amendments—Amendment No. 35— would increase the period within which the authority must notify the ombudsman of its response from one month to two months. The effect of Amendment
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  No. 36 would be that the ombudsman would not have discretion to specify a longer period within which the authority would be required to notify the ombudsman of the action that it was taking in response to his report.
  The noble Lord's concern appears to be whether it would be simpler and clearer to specify in the Bill a longer period for the authority to notify its response and to do away with the ombudsman's discretion to extend the period. The Government have good reasons for specifying a one-month period within which the authority must notify the ombudsman of the action that it intends to take in response to a report. There appears to be no reason why in most cases an authority should not be able to set out within one month what its response to the report will be. The authority will have known for some time that the investigation was under way and will have a good grasp of the factual background and the actions that have been investigated. It seems reasonable, therefore, to set a one-month period as the norm.
  Some of the ombudsmen with whom the Public Services Ombudsman might work jointly—for example, the Parliamentary Commissioner for Administration—allow one month for authorities to notify them of their response to a report. In cases where there is a possibility of joint working and reporting, it makes sense for the Public Services Ombudsman for Wales to be able to work to the same timetable as the other ombudsmen involved. The Government also consider it reasonable to allow the ombudsman discretion to extend the period within which the listed authority must give notification of its response. In individual cases, there may be good reasons why the authority should be allowed longer to notify; for example, in the case of illness of key personnel in the authority.
  It is very unlikely that the ombudsman would exercise that discretion in anything but a reasonable manner. Any decision of the ombudsman to extend the period, like any other decisions he makes in the exercise of his powers, would be subject to judicial review if he exercised his discretion in an unreasonable way. Therefore, I do not consider that the power to extend the period would be used to the detriment of the person aggrieved; it would be used only where it was reasonable to do so.
  On Amendment No. 33, the noble Lord, Lord Roberts of Conwy, said that the authority has two weeks to ensure that the press publicises the report but the authority must make it available for three weeks— perhaps only one week after the press notice. The three- week period during which the listed authority must make the report publicly available begins only on the date specified in the advertisement placed in the newspaper. It would always be three weeks from notification.
  I hope that my explanation satisfies the noble Lord, Lord Roberts of Conwy, and that he will be able to withdraw his amendment.
  Lord Prys-Davies: I am very grateful that the noble Lord, Lord Roberts of Conwy, has scrutinised the three-week period in Clauses 17 and 18. I note the

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  Minister's point that there is good precedent for it. What would be the position if a bank holiday fell within the prescribed period—for example, Christmas and the New Year, or Good Friday and Easter Monday? Is the three-week period adjusted to take account of bank holidays?
  Lord Evans of Temple Guiting: I am advised that bank holidays do not count but, as there seems to be slight uncertainty, I shall check the matter and write to my noble friend. I am sure that public holidays are excluded.
  6.30 p.m.
  Lord Roberts of Conwy: I am grateful to the Minister for his comments. But, in reply to what I said about my first two amendments, he said that, of course, the three-week period in which the report has to be publicly available at the listed authority's office will not begin until the date specified in the press advertisement. Where is that stated in the Bill? I have seen nothing by way of specific reference to that description of the time.
  Lord Evans of Temple Guiting: I am advised that Clause 17(4)(a) will give the noble Lord the answer.
  Lord Roberts of Conwy: I am grateful to the Minister for drawing my attention to that subsection. That is extremely helpful. I still feel that a three-week period for the report to be available locally is very short. I know that there is a Scottish precedent but there is no reason why the period should not be longer. As I have said, if the report is controversial and critical of the listed authority, the public will want time to study the press reports and the documents and to voice their views accordingly. I still think that three weeks is too short a period, but I am grateful for the assurance given.
  Lord Evans of Temple Guiting: It might be helpful to the noble Lord, Lord Roberts, if I remind him that I believe I mentioned that, although a three-week period is referred to, the ombudsman could issue directions to make it a longer period if he or she so wished. There is flexibility in the Bill.
  Lord Roberts of Conwy: I am grateful to the Minister. I turn to the final two amendments in the group and the period of one month given by the ombudsman to the listed authority to respond. I found that certain Members of the Committee were nodding approval when I said that a month was a short time to a local authority. My guess is that the pleas for an extension of time will be unending. Perhaps the noble Lord, in his informative way, can tell the Committee whether there have been complaints in the past about any brevity of time in which to respond.
  Lord Evans of Temple Guiting: There have been no complaints.
  Lord Roberts of Conwy: I am surprised to hear that. On the assumption that things are better than I anticipated, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 17 agreed to.
  Clause 18 [Publicising reports: health care providers]:
  [Amendment No. 34 not moved.]
  Clause 18 agreed to.
  Clause 19 [Action following receipt of a report]:
  [Amendments Nos. 35 and36 not moved.]
  Clause 19 agreed to.
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 37:
  After Clause 19, insert the following new clause—
  "NON-ACTION FOLLOWING RECEIPT OF A REPORT
  1 If the Ombudsman is satisfied that the condition in subsection (2) is met in relation to a listed authority, he may issue a certificate to that effect to the High Court.
  (2) The condition is that the listed authority has wilfully disregarded his report without lawful excuse.
  The noble Lord said: In moving Amendment No. 37, I shall speak also to Amendments Nos. 40 and 48. It is fair to say that we have all been concerned about the possibility that a listed authority might choose to defy the ombudsman and wilfully disregard his report without lawful excuse. This new clause provides that, in that event, the ombudsman may have recourse to the High Court.
  We have been assured that there has been no such case of defiance over the past five years and that it is now the practice for authorities to accept the ombudsman's recommendations and act accordingly. There have been cases in the distant past when authorities have not been so accommodating and it is conceivable that such cases might arise in future. As the Bill stands, the ombudsman has no sanction against a totally recalcitrant listed authority.
  The amendment provides that if the Assembly is unhappy with the ombudsman's recommendations in a special report in respect of itself, the matter can be resolved by a resolution laid before the Assembly. Such a resolution, if affirmed, would oblige the Assembly to act. But Clause 23, which spells out the procedure, is limited to special reports relating to the Assembly. It does not cover all listed authorities, some of which may be tempted to take a firmly independent line. That is why I believe that the ombudsman should, as a last resort, be able to seek the view of the High Court and the sanctions available to it.
  I stress that that would be a last resort, but nevertheless, it should be available in case the need arises. Without it, the ombudsman is left powerless in an extreme case where his recommendations are rejected and an authority goes to extreme lengths to avoid implementing them.
  Amendment No. 40 refers to Clause 23, which in turn refers to the special reports that relate to the Assembly and the steps to ensure that the Assembly respects the recommendations contained in them. It is, of course, very important that the Assembly does so; if the Assembly does not respect the ombudsman's recommendations, it is unlikely that other listed bodies will respect them.

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  Unless the Assembly takes action or proposes to take action that is satisfactory to the ombudsman, the First Minister has to give the Assembly notice of his intention to move that the Assembly resolve to approve the recommendations in the report. Subsection (3) seeks to ensure that there can be no undue delay in moving such a Motion.
  My amendment seeks to buttress the procedure further by ensuring that the recommendations are not amended in the Motion itself. They are thus guaranteed the Assembly Government's support. I would not presume to seek to prevent the Assembly itself amending the Motion; it may have a valid reason or cause to do so. But the initial thrust of all this must be to support the ombudsman's recommendations. I am anxious that integrity should be preserved as regards the Motion laid before the Assembly.
  Amendment No. 48 refers to the compensation clause. I believe we are all agreed that that is very important, especially from the standpoint of the aggrieved person. As drafted, Clause 33 is curious in that the power of a listed body to make payment is optional and almost ex gratia. It appears to be dissociated from the ombudsman's investigation as far as possible and independent of him. As described, the power has the disadvantage of appearing as an attempt to buy off the complainant and, incidentally, a possible investigation.
  I can well understand the thinking behind it and the anxiety to make the listed body entirely responsible for its own actions, especially in the financial area. But, as my amendment suggests, the ombudsman has the power to make a recommendation of a compensatory nature, so surely, in that event, there must be an obligation on the listed body to carry it out. Its decision to do so would still be its own responsibility. It can refuse, in which case the aggrieved person can, and probably will, resort to legal proceedings with the knowledge that he has the ombudsman's recommendation behind him. I beg to move.
  Lord Prys-Davies: I support the thrust of Amendments Nos. 37 and 48. The Bill does not contain an enforcement procedure if the listed body fails to implement the ombudsman's recommendations. It seems to me that a clause giving the ombudsman the right, ultimately, to trigger court proceedings for non- compliance could clearly play a useful role in bringing about the necessary improvements. That could have a salutary effect. So the amendment is valuable for that element alone, but the strongest argument for the amendment—of course, they are not in competition—is that it would improve accessibility to justice for the aggrieved party. It would give access to relief without having to commence litigation, which can be costly, and without facing the delay that inevitably attends such proceedings. Delay itself can be the cause of a just complaint.
  I recall that when the Assembly Minister was asked, in the Gladstone Room, why these powers were not incorporated in the Bill, the answer appeared to be because the listed bodies did not want them in the Bill.
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  They were opposed to the change. That is not surprising. That is often the case when such an approach is introduced but, as in the past, they would come to terms with the new provision. It seems to me that, if that is the principal argument against the amendment, that should not be allowed to prevent the powers from being incorporated in the Bill.
  I have listened carefully to what my noble friend the Minister has said in response to the amendment, but I very much hope that the Government will give further consideration to the merits that have been pointed out by the noble Lord, Lord Roberts of Conwy.
  Lord Livsey of Talgarth: I strongly support the new clause brought forward by the noble Lord, Lord Roberts of Conwy. My experience as a constituency Member in the other place of the expeditiousness, or lack of it, of listed authorities, which I know are listed here, has not been at all satisfactory in my view. If the ombudsman is to have real power and if he is to bring in rogue elements in a few listed authorities, this will give the ombudsman the greater power which is required in this area.
  If these powers had been available previously, and if we had had an ombudsman, I can think of at least a dozen cases in which I was involved where I was most frustrated by their progress. Under this provision they would have had to be expedited. The people concerned very often come from poorer communities and do not have the power to achieve redress. However, under the powers in this suggested new clause, they would be able to do so. Further, the ombudsman would be given more teeth. As an independent ombudsman, surely that is what is required in these circumstances.
  The citizen must be able to get redress. This clause would strengthen the powers of the ombudsman, which for me would be a very good thing.
  6.45 p.m.
  Lord Evans of Temple Guiting: The common thread running through this group of amendments is that they appear to be aimed at the issue of enforceability of the ombudsman's recommendations. It may assist noble Lords if I first set out the Government's general views on the issue of enforceability.
  The Government do not believe that it is either necessary or desirable to give powers to the ombudsman to enforce his recommendations through any of the methods envisaged in these amendments. The Government are satisfied that the naming and shaming of listed authorities, including the Assembly, is effective in ensuring that the ombudsman's recommendations are acted upon. This is reinforced by the excellent record of authorities in Wales when it comes to complying with the existing Welsh ombudsman's recommendations. However, I see that the noble Lord, Lord Livsey, is shaking his head.
  I turn first to Amendment No. 37, which seeks to insert a new clause after Clause 19. The effect of the proposed clause would be to enable the ombudsman to certify to the High Court that a listed authority has

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  wilfully disregarded the ombudsman's report— presumably a report made under Clause 16—without lawful excuse.
  Amendment No. 40 would amend Clause 23 which makes provision in the case of a special report issued by the ombudsman in relation to a complaint against the Assembly. In such a case the First Minister must lay the report before the Assembly. Further, unless action is taken to the satisfaction of the ombudsman, or has been taken or proposed, the First Minister must give the Assembly notice of his intention to table a Motion asking the Assembly to approve the ombudsman's recommendations as contained in the special report.
  The policy intent of Clause 23 is absolutely clear. It is that where the Assembly has failed to respond satisfactorily to the ombudsman's report, the ombudsman's special report is required to be brought to the attention of the whole Assembly in plenary session. This would bring extra pressure to bear on the Assembly to comply with the ombudsman's recommendations by ensuring that all Assembly Members are aware of the actions complained of, and further publicising the Assembly's failure to respond adequately.
  It appears that the intended effect of the noble Lord's amendment was to ensure that the First Minister's Motion must ask the Assembly to approve the ombudsman's recommendations as set out in the special report; in other words, the Motion itself could not ask the Assembly to approve anything other than the full set of recommendations made by the ombudsman without any amendments to them. However, the Government are confident that the clause as drafted achieves this. Clause 23(2)(b) already requires the First Minister to give notice of his intention to move that the Assembly resolves to,
  "approve the recommendations contained in it";
  that is, in the copy of the report laid before the Assembly. If the Motion sought the Assembly's agreement to anything other than the recommendations as they appear in that copy of the report, the Motion would not comply with the duty set out in Clause 23(2)(b).
  When speaking to Amendment No. 48, the noble Lord, Lord Roberts of Conwy, stated that the power in Clause 33(2) is a curious one. Perhaps it would help if I explained the intention behind the provision. This subsection would ensure that all listed authorities have the power to make compensation payments. Some may not have such a power in the case of an ombudsman's report. The noble Lord regards this as a power to buy off the complainant, but under Clause 2(5) the ombudsman has complete discretion to continue the investigation if he so chooses.
  I hope that noble Lords will find my explanations convincing, and I ask the noble Lord to withdraw his amendment.
  Lord Roberts of Conwy: I am grateful to the noble Lords, Lord Prys-Davies and Lord Livsey of Talgarth, for their words in support of my proposed new clause. I certainly appreciate the argument against it in that, according to the Government, over the past five years the record of the listed authorities has been extremely
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  good so far as ombudsmen's recommendations have been concerned. However, in my view there is always the possibility of a recalcitrant listed body which refuses to observe the ombudsman's recommendations. While for the time being I am prepared to withdraw the new clause, I may return to it at a later stage.
  I am glad of the noble Lord's assurance with regard to the Assembly. His clear implication was that the First Minister would not change in any way the recommendations of the ombudsman when the Motion is brought before the Assembly for its approval. I am content with that assurance.
  However, I am not so happy with the situation regarding Amendment No. 48, covering the payment of compensation as a result of the ombudsman's recommendation. As things are, and if my understanding is correct, it is for the listed body to make any compensatory payment irrespective of the power or influence of the ombudsman. Therefore, while I am again prepared to withdraw the amendment, once we have had an opportunity to consider in rather more detail what the Minister has so helpfully set out, we may come back to it at a later stage. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 20 [Reports: alternative procedure]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 38:
  Page 11, line 28, leave out "an agreed period" and insert "a period agreed with the person aggrieved"
  The noble Lord said: The intention behind this amendment is to bring the consent of the person aggrieved into any agreement between the listed body and the ombudsman, and into decision-making by the ombudsman himself. At present the aggrieved person is noticeably absent, not only from this clause but also generally throughout the Bill. Everything seems to be decided for him or her between the ombudsman and the listed body or by the ombudsman alone.
  Clause 20 refers to the alternative, abbreviated procedure available to the ombudsman, and subsection (2) refers to its use in the specific circumstances of where the person aggrieved has sustained an injustice or hardship and the listed body has agreed to implement the ombudsman's recommendations,
  "before the end of an agreed period".
  I take that phrase to mean a period agreed between the ombudsman and the listed body; then the alternative procedure may be used.
  The aggrieved person does not feature at all. It may be argued that it does not matter to him whether the full procedure or the alternative procedure applies, so long as his injustice or hardship is acknowledged and such remedies as are available are agreed. On the other hand, the aggrieved person may take a very public- spirited view and wish to ensure that what happened to him should not happen to others. He may therefore wish to see the body that has wronged him subjected to the rigours of the full procedure and the ensuing publicity. As the Bill stands, the aggrieved person has

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  no say in the matter. He might make representations to the ombudsman when he receives the report, but by that time it will be too late. I beg to move.
  Lord Evans of Temple Guiting: The effect of the amendment tabled by the noble Lord, Lord Roberts of Conwy, would be to expressly state in the Bill that, where the ombudsman has concluded that the person aggrieved has suffered injustice or hardship in consequence of maladministration or service failure, and the ombudsman has agreed with the listed authority the period within which the authority must implement any recommendations that he has made, the aggrieved person must be a party to that agreement.
  The Government's view is that it is implicit in the clause as currently drafted that the period is agreed between the ombudsman, the person aggrieved and the listed authority. However, we accept that it may be helpful to state clearly in the Bill the parties to the agreement. We will consider that point with a view to tabling an amendment on Report. With that undertaking, I invite the noble Lord to withdraw the amendment.
  Lord Roberts of Conwy: I am grateful to the Minister for his very helpful reply. With the assurance that he has given us, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 39 not moved]
  Clause 20 agreed to.
  Clauses 21 and 22 agreed to.
  Clause 23 [Special reports relating to the Assembly]:
  [Amendment No. 40 not moved.]
  Clause 23 agreed to.
  Clause 24 [Consultation and co-operation with other ombudsmen]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 41:
  Page 15, line 6, leave out subsection (6).
  The noble Lord said: Subsection (6) prohibits joint investigation, joint reporting and publishing with the Scottish Public Service Ombudsman. The simple question is: why, when such joint activity is possible with all the other ombudsmen listed in subsection (7)? I beg to move
  Lord Prys-Davies: It is a very fair question, because the Wales Office's memorandum to the Select Committee on Delegated Powers and Regulatory Reform explains all the provisions of Clause 24 apart from subsection (6).
  Lord Evans of Temple Guiting:: Officials of the Wales Office have had detailed discussions with their counterparts at the Scottish Executive on the application of the provisions of this clause to the Scottish Public Services Ombudsman. The arrangement already in place between the Scottish Public Services Ombudsman and other ombudsmen relies on consultation and co- operation rather than joint working.
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  In practice, we agree, it is highly unlikely that circumstances will arise necessitating joint working between the Welsh and Scottish Public Services Ombudsmen, whereas joint working between the Welsh and English ombudsmen could be quite easily envisaged, for example, on a health services matter.
  It is consistent with this approach for the arrangement between the Public Services Ombudsman for Wales and the Scottish Public Services Ombudsman to rely on consultation and co-operation. As such, we have agreed with the Scottish Executive to disapply subsection (5) in respect of the Scottish Public Services Ombudsman. So there is no specific power to work or to report jointly with the Scottish ombudsman. Conversely, such provision is made in respect of the English ombudsmen.
  In the light of that explanation which, I put to the Committee, reflects the reality of the situation, I invite the noble Lord, Lord Roberts of Conwy, to withdraw his amendment.
  Lord Roberts of Conwy: At least we have had an explanation of this somewhat mystifying subsection. For the time being we shall certainly rest with it. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 24 agreed to.
  Clause 25 agreed to.
  Clause 26 [Disclosure prejudicial to safety of State or contrary to public interest]:
  7 p.m.
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 42:
  Page 16, line 43, leave out "or otherwise contrary to the public interest"
  The noble Lord said: In most of the Bill the decision as to what is or is not in the public interest is for the ombudsman. For the first time we have a reference to a Minister of the Crown and his ability to give notice to the ombudsman that the disclosure of a document or information may be contrary to the public interest.
  I have no objection to a Minister giving notice that disclosure of certain information may be prejudicial to the safety of the state, which is also mentioned. That is entirely and quite properly a matter for Ministers. Further, the occasions when the ombudsman will have information which may affect the safety of the state will be minimal.
  However, information of public interest is a broader and more extensive sphere altogether. The question of whether to disclose arises on more than one occasion in the Bill. It is a matter for the ombudsman to decide every time, except here. Under this clause a Minister may step in and give notice that disclosure of certain information is against the public interest. The ombudsman is immediately relieved of his responsibility for deciding the issue.
  It is not unknown to Members of the Committee for such power to issue notices to be abused by Ministers from time to time, and it may be particularly tempting to do so in matters where the Government and the

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  ombudsman are involved and Ministers wish to avoid public criticism. Slapping on a notice may seem to be the easy answer. It seldom is because eventually the truth will out.
  I think that the Bill would be much improved by the acceptance of my amendment and the omission of this potentially corruptive power. I beg to move.
  Lord Rowlands: I rise briefly to ask the Minister how this fits with the Freedom of Information Act. Presumably, a person could seek to obtain any of these documents under that Act. Would the procedure then follow?
  Lord Evans of Temple Guiting: Clause 26 makes provision for those cases where the ombudsman, in the course of carrying out an investigation, becomes aware of information or documents that would be prejudicial to the safety of the state or contrary to the public interest if it were disclosed to other persons or for any other purpose. In such cases, a Minister of the Crown can specify that information or those documents in a notice to the ombudsman under this clause.
  The ombudsman and those working for or assisting him will then not be authorised or required under the Bill to disclose the specified information or documents even if, otherwise, the ombudsman would have had the power to do so.
  The effect of the noble Lord's amendment would be to take away the option for a Minister of the Crown to specify in a notice under this clause that the disclosure of a document or information for the purposes of the ombudsman's functions would be contrary to the public interest. The Minister would only rarely feel it necessary to issue a notice stating that the disclosure of a document or information would be contrary to the public interest.
  However, the Bill confers wide powers on the ombudsman to obtain relevant information, documents and evidence for the purposes of an investigation. In the Government's view, it is right that the ombudsman should have those wide powers so that he can satisfy himself whether the complaint is justified.
  Also in the Government's view, it is right that this Bill should contain the power set out in this clause which replicates provisions in existing ombudsmen legislation. It is right because the ombudsman and his staff should not be entitled to disclose information or documents under the Bill where to do so would prejudice the safety of the state or would otherwise be contrary to the public interest. I stress the word "would" because that makes it clear that the intention is that the test is not whether disclosure "may" or "could" have that effect, or even that it "would be likely" to have that effect; the test is intended to be whether disclosure "would" have that effect.
  I take, for example, a situation which involves the Assembly's functions, discharged through the Care Standards Inspectorate for Wales, of inspecting and regulating registered care settings in Wales, such as nursery care. A complaint may be made to the ombudsman about the manner in which the inspectorate has conducted an inspection. The ombudsman might, in
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  the course of his investigation and in the exercise of his powers to obtain information and documents, gain access to sensitive information. It might be that the inspection had been initiated as a result of a confidential tip-off that young children in the nursery were at serious risk of physical or sexual abuse by a particular person employed in the nursery.
  That matter could still be under active police investigation at the same time as the ombudsman is investigating the allegation of maladministration or service failure. The disclosure by the ombudsman or by his staff of such information, either directly or indirectly, to the person under police investigation would be contrary to the public interest. A certificate could be issued in such circumstances to prevent the disclosure of such information.
  We are aware that very few such notices have been issued, for example, in relation to the Parliamentary Commissioner for Administration and the Health Service Commissioners, under equivalent powers in existing legislation. However, as I have said, we can envisage that there might exceptionally be a need for such notices even in the context of the Public Services Ombudsman for Wales. Any unreasonable use of the power to issue such notices could be challenged by judicial review.
  Before I sit down, perhaps I may answer the question of my noble friend Lord Rowlands about the Freedom of Information Act in relation to Clause 22. The clause would not prevent the ombudsman disclosing information requested under the Freedom of Information Act 2000, if the ombudsman is required to disclose it under the Act. I invite the noble Lord, Lord Roberts of Conwy, to withdraw his amendment.
  Lord Roberts of Conwy: I am grateful to the noble Lord for his explanation and for the example he gave in which this particular requirement by a Minister would be necessary, knowing, as he said, that judicial review is always available in the event of abuse of the power. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 26 agreed to.
  Clause 27 [Listed authorities]:
  Lord Rowlands Lord Rowlands moved Amendment No. 43:
  Page 17, line 12, at end insert—
  "( ) Before making an order under subsection (2) the Assembly must consult and obtain the agreement of the Ombudsman."
  The noble Lord said: It is with some trepidation that I rise to move the amendment; I fear that my good run may come to an end. On the other hand, it replicates an amendment to Clause 10.I said on Clause 10 that I was convinced by my noble friend's argument that the Assembly should not have to obtain the agreement of the ombudsman, but that he might concede that the Assembly should consult the ombudsman before

  GC 415
  exercising powers under Section 2. He agreed in principle on Clause 10, so I tempt him to do so for Clause 27 as well. I beg to move.
  Lord Roberts of Conwy: I rise to speak to Amendments Nos. 45 and 46, but, in passing, let me say that the amendment moved by the noble Lord, Lord Rowlands, is eminently sensible.
  Clause 28 deals with restrictions on the power to add to the category of listed bodies that may be subject to the ombudsman and exemptions from such a restriction in subsection (3)(c). In effect, that means that a person or body at least half of whose expenditure in Wales is met by the Assembly or other listed authorities could be added to the schedule. Amendment No. 45 would substitute, "a substantial part" for the words "at least half to avoid the need for precise calculation and consequential argument.
  We know that many private sector bodies in Wales are contracted to provide public services and thus are in receipt of substantial funds from public sources. We touched on that in our discussion on the Public Audit (Wales) Bill. As a matter of principle, private sector bodies that accept public funds must also accept the public responsibilities which accompany them and, if there are complaints of injustice or hardship from the recipients of such funds, the ombudsman should be able to investigate them. The same applies to voluntary bodies in receipt of substantial public funds. Where the Auditor General for Wales can step in, the ombudsman should also be able to investigate.
  On Amendment No. 46, subsection (4) deals with those who may be added to the list of authorities to fall within the ombudsman's scope for investigation. I wonder whether the Bill has got it absolutely right. Many authorities established by or under an enactment now impose charges for their services, as well as precepts or levies. There is no danger of the private sector generally being caught by the inclusion of charges, because the subsection refers specifically to bodies established by enactment. The final amendment is probing.
  Lord Livsey of Talgarth: I shall be as brief as I can, but, speaking to the lead amendment, I strongly support what the noble Lord, Lord Rowlands, has said. Clause 27(2) states:
  "The Assembly may by order amend Schedule 3 by—

  (a)adding a person;

  (b)omitting a person;

  (c)changing the description of a person".

  The amendment moved by the noble Lord, Lord Rowlands, affects subsection (3). Reasonably, it asks only that the Assembly must consult and obtain the agreement of the ombudsman. That is essential in this situation and I am glad to see that that has been highlighted.
  7.15 p.m.
  Lord Evans of Temple Guiting: The Assembly has a power by order to add, omit or change the description of a listed authority in Schedule 3. The amendment relates
  GC 416
  to that order-making power. The clause already provides that the Assembly must consult such persons as it thinks appropriate before making an order. The Government consider that the requirement in Clause 27(4) for the Assembly to consult such persons as it thinks appropriate will ensure that the ombudsman is consulted, as there can be no doubt that the ombudsman is an appropriate person for these purposes.
  I cannot accept that the Assembly must obtain the ombudsman's agreement before making an order under the clause. It would not be acceptable for the ombudsman to have a power of veto on which bodies should be subject to his jurisdiction, nor on those that should be taken out of his jurisdiction. The decision about which bodies should be within his jurisdiction is probably one for the authority that has overall responsibility for the efficient operation of public services in Wales; namely, the Assembly.
  Amendments Nos. 45 and 46 affect Clause 28, which places restrictions on the Assembly's power to make orders amending the list of authorities in Schedule 3. The amendments make changes to the descriptions of categories of authorities that can be added to the list in Schedule 3. Amendment No. 45 affects the first category, which is a body established by enactment or by the Crown, the UK government, the Assembly or other listed authority, some or all of whose members are appointed by the Crown, the UK government, the Assembly or another listed authority that is at least 50 per cent funded in respect of its functions in Wales directly by the Assembly or other listed authority.
  The amendment would change that description, so that only "a substantial part" of its funding would have to come from the Assembly or another listed body. That contrasts with the present drafting, which requires "at least half of its funding to come from one of those sources. The reference to at least half of an authority's funding being met by certain bodies is in fact a familiar formulation.
  Although we have not slavishly followed precedent for the purpose of the Bill, there is merit in sticking with the formulation that states that at least half of the body's expenditure must be met by the Assembly or other listed authorities. That has the advantage of clarity. Half of the body's expenditure is an amount that is easily discerned. The interpretation of "a substantial part" of the expenditure, on the other hand, is not clear. If a dispute ever arose about the Assembly's power to add a body to the remit of the ombudsman, public money could be wasted in argument about the meaning of the words in that context.
  Amendment No. 46 amends the second category of body; namely, a body established by enactment that can also issue a precept or levy. That is the type of body currently subject to the jurisdiction of the Commissioner for Local Administration in Wales. The commissioner's jurisdiction is governed by the Local Government Act 1974. Section 25(2) of that Act provides that an authority established under Act of Parliament that has power to levy a rate or issue a precept can be added to the commissioner's jurisdiction by Order in Council. The Government

  GC 417
  consider that it is appropriate for there to be a similar power for the Public Services Ombudsman for Wales to add bodies that can add a precept or levy.
  We do not think that there is a need to give the Assembly the power to add to the ombudsman's jurisdiction bodies that can charge. A huge range of public bodies have the power to charge for certain services, if only for photocopying and information, for example. Therefore, such an amendment would give the Assembly far too wide a power to add public bodies to the ombudsman's remit. For instance, the power would be wider than the power to make an Order in Council adding authorities to the local commissioner's jurisdiction. We see no need to extend the power in that way.
  I therefore cannot accept any of the amendments and I invite noble Lords not to press them.
  Lord Rowlands: I knew that the run would come to an end. On the other hand, I have been convinced by my noble friend's argument that it is not right for the ombudsman to exercise a veto over the Assembly's powers to alter the listed authorities. However, I still doubt the phrase on which he rests his case, that the Assembly must "consult suitable persons". I think that the ombudsman is in a different position from any other person. The ombudsman will have to operate the proposal and therefore there is a case for identifying in the Bill the very specific obligation to consult the ombudsman rather than treat him as just another person. Perhaps my noble friend will keep an open mind about that point. It would be consistent with what he is proposing to do in Clause 10, and I hope that in that way we shall be able to keep our winning run going.
  Lord Roberts of Conwy: I rise to say a few words in response to the Minister's comments on Amendments Nos. 45 and 46, which 1 shall not press. However, I am bound to say that I thought the phrase "at least half" would be subject to more dispute and argument than that of "a substantial proportion". I accept what he has said that the phrase "at least half is the familiar formulation. However, if it results in less potential for dispute than my proposal, so be it.
  Again, I accept that my inclusion of the word "charge" in Amendment No. 46 is not helpful in that it would extend quite considerably the range of bodies which might be listed authorities.
  Lord Rowlands: In the light of our discussion, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 27 agreed to.
  Schedule 3 [Listed authorities]:
  Lord Evans of Temple Guiting Lord Evans of Temple Guiting moved Amendment No. 44:
  Page 35, line 40, leave out "mainly" and insert "partly"
  The noble Lord said: In moving Amendment No. 44 I shall speak also to Amendment No. 49. These are essentially technical amendments to the descriptions of regional flood defence committees both in this Bill
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  and in the Local Government Act 1974. However, while they are technical, they are necessary to remove the risk of a gap in ombudsman jurisdiction relating to these committees, between the Public Services Ombudsman for Wales and the Commission for Local Administration in England.
  The intention of these amendments is to ensure that residents living on either side of the England/Wales border have access to an ombudsman if they have a complaint relating to the regional flood defence committee in whose area they happen to live.
  I wrote in detail on this point in my letter last week to noble Lords. In view of that, I do not propose to speak at length about the amendments. I beg to move.
  Lord Roberts of Conwy: This is an important brace of amendments which, as the Minister has made clear, will ensure that there is no gap in ombudsman jurisdictional coverage of regional flood defence committees along the borders of England and Wales. Rivers are no respecters of national boundaries. Successive governments have recognised that in the cross-border scope they have given to the Wales regional and Severn-Trent regional flood defence committees. These government amendments will make the Bill consistent with the definitions applicable to internal drainage boards, which is highly desirable.
  Cross-border issues can be controversial in areas where they arise. The fact that, under Clause 24, the Welsh ombudsman can consult and co-operate with the relevant English ombudsman should be helpful in this context because while each may investigate matters only in relation to his respective country, it is conceivable that the matter being investigated may have wider implications requiring joint action on their part.
  It is worth saying a little about these important amendments because I know that they address matters which arouse considerable interest in cross-border areas.
  On Question, amendment agreed to.
  Schedule 3, as amended, agreed to.
  Clause 28 [Restrictions on power to amend Schedule 3]:
  [Amendments Nos. 45 and 46 not moved.]
  Clause 28 agreed to.
  Clauses 29 to 31 agreed to.
  Clause 32 [Publicity for complaints procedures]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 47:
  Page 19, line 43, leave out "take reasonable steps to"
  The noble Lord said: Clause 32 deals with publicity by listed authorities for complaints procedures and the amendment would strengthen the requirement by removing the qualifying phrase "take reasonable steps to", because that can be variously interpreted by different bodies. Some will use small print, some large and so on. It seems to me that this is an area where the ombudsman might issue guidance about how the

  GC 419
  public is to be adequately informed. That the public should be so informed when dealing with a listed authority is beyond question. I beg to move.
  Lord Evans of Temple Guiting: Clause 32 makes it a requirement that a listed authority must include information about the ombudsman in any literature that it provides on its provision of services, in its procedures for dealing with complaints and in its response to a complaint. But it further provides that a listed authority must take reasonable steps to draw a person's attention to his or her right to complain to the ombudsman.
  The Government's view is that the amendment, which will remove the qualification that a listed authority must take reasonable steps to provide information to the public on the role of the ombudsman, has the potential to narrow the requirement. I am sure that the Committee will agree that there are many ways in which information can be provided. A public information leaflet that is one of many different such leaflets available from a listed authority's reception area, if one happens to be passing through, is different from using another media if it is available to the authority. For example, if a listed authority has a website and publishes information on it, it would be reasonable to expect it to publish information on the ombudsman and not just put a leaflet in reception. The ombudsman has power to issue guidance on that and that is demonstrated by Clause 32(3). I hope that the noble Lord will feel able to withdraw the amendment.
  Lord Roberts of Conwy: I accept the Minister's explanation and comment. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 32 agreed to.
  Clause 33 [Compensation for the person aggrieved]:
  [Amendment No. 48 not moved.]
  Clause 33 agreed to.
  Clause 34 agreed to.
  Schedule 4 agreed to.
  Clauses 35 and 36 agreed to.
  Schedule 5 agreed to.
  Clauses 37 and 38 agreed to.
  Schedule 6 [Consequential amendments]:
  Lord Evans of Temple Guiting Lord Evans of Temple Guiting moved Amendment No. 49:
  Page 43, line 39, leave out "mainly" and insert "partly"
  On Question, amendment agreed to.
  Schedule 6, as amended, agreed to.
  Schedule 7 agreed to.
  Clauses 39 to 41 agreed to.
  7.30 p.m.
  Clause 42 [Consequential, transitional provisions etc]:
  Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 50:
  Page 25, line 35, leave out subsections (2) and (3).
  The noble Lord said: This amendment deals with an almighty provision that gives power to the Assembly to "amend, repeal or revoke" any previous enactment or any future enactment passed in this Session. I am right in thinking that the power is limited to giving effect to the provisions of this Act. I am sure that I am right on that. The futuristic element is interesting. I wonder whether the Minister can tell us which Bills outlined in the Queen's Speech at the opening of this Session should be amended to take account of this Bill, but I shall not press him for an answer this evening.
  Amendment No. 51 refers to Clause 43(2)(a). I do not recollect ever having seen such a provision as this one before, enabling an Assembly order to,
  "make different provision for different purposes".
  What on earth does that mean? Is its scope as broad as it appears within the ambit of the Bill? I can understand the need for the rest of the clause, but that is a catch-all subsection. Perhaps the Minister can give us an idea of what might be done under this provision. I am bound to say that the more I see of this kind of provision, the more distrustful and suspicious of unforeseen consequences 1 become. Either the subsection has a definite purpose in view or it does not, in which case it is unnecessary and should be removed. I beg to move.
  Lord Prys-Davies: Again I found the memorandum from the Wales Office to the Select Committee on Delegated Powers and Regulatory Reform to be helpful. It is my understanding—I think that it is fairly clear from the memorandumthat—that the operation of subsection (1) is not confined purely to this Act but to all primary legislation which has consequences for this Bill.
  I was at first attracted by the amendment to delete subsection (2) because it is quite clear that by virtue of this provision the Assembly would not have the power to amend any future legislation. I therefore found it attractive to strike that out of the Bill. However, if it is to stay in the Bill, as it probably will, then it places a duty on the Welsh Assembly, and indeed on Westminster, to ensure that in future legislation there are no consequences that could in any way damage the role of the commissioner under this legislation. We have previously been concerned about primary legislation that comes before us which could be in some way damaging to the legislation. The Assembly and Westminster have to ensure that there are no such consequences in future legislation.
  Lord Evans of Temple Guiting:I should start by saying that the Delegated Powers and Regulatory Reform Committee raised no objection to this clause. As my noble friend has just said, the clause does not appear in all Bills but it is certainly used sometimes. The effect of this amendment would be to remove Clause 42(2); that is, the Assembly's ability by order to amend, repeal or

  GC 421
  revoke an enactment, whether primary or secondary legislation, where the amendment is consequential on the provisions of the Bill.
  As we all know, this is the Henry VIII power. As I said, it is not unusual to have such a provision in the Bill. While it is intended that the Bill itself should deal with most minor and consequential amendments to other Acts, there is no guarantee that it will have picked up all such amendments. A power is therefore given by order to make such amendments or repeals after the Bill is enacted. The power will not, however, extend to an enactment in an Act of the UK Parliament which is passed in a Session after that in which this Bill is passed. So the power is limited in that respect.
  As I said, this is not an unusual provision. I therefore hope that the noble Lord will withdraw his amendment. Before he considers doing so, however, I must again acknowledge that his amendment has caused us to reflect further—this time in relation to the precise wording of Clause 42(3) and, in particular, whether the words "or under" should properly appear in the Bill. We will consider that further and, if necessary, bring back an amendment on Report.
  I spoke to Amendment No. 51 with Amendment No. 50 to Clause 42. As I said then, the purpose of Clause 43 is to give the Assembly the widest flexibility in relation to the making of orders or regulations under powers conferred by the Bill. The effect of deleting Clause 43(2)(a) would be to restrict the flexibility of the order and regulation-making powers of the Assembly under the Bill by removing the power to make different provision for different purposes.
  The noble Lord, Lord Roberts, asked which Bills will be affected by this after the Queen's Speech. Certainly the national offender management and sentencing Bill may require amendment under this power because it contains provision for a prison ombudsman. I hope that the noble Lord is satisfied with the answer I have given and that he will feel able to withdraw the amendment.
  Lord Roberts of Conwy: I am satisfied by the noble Lord's reply. I am grateful to him not only for what he said in reply to these terminal amendments of our Committee stage but also for what he said, which has been helpful to the Committee, on other amendments put before him. Incidentally, I am grateful to all noble Lords who have contributed to our debate.
  Lord Livsey of Talgarth: I, too, should like to thank the Committee for the way in which this business has been expedited. I associate myself with the other remarks of the noble Lord, Lord Roberts of Conwy.
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  He has himself worked extremely hard at producing the amendments, many of which have been very relevant. I thank him for that. I also thank the noble Lord, Lord Rowlands, and other noble Lords for their contributions.
  I particularly appreciate what the Minister said. However, I have picked up one drafting matter. Reference has occasionally been made in the Bill to the Assembly First Secretary; yet, in responding, the Minister has referred to the Assembly First Minister. I assume that the same situation pertains. Was there a specific reason for the reference? I do not want an answer now. However, perhaps the terminology could be straightened out and corrected between now and Report. I should like to know the answer as there appears to be a divergence between the Bill and the Minister's remarks. I shall leave it at that.
  I thank the Minister very much for the way in which the Bill has gone through. I also thank the Lord Chairman and his predecessors for the way that it has been conducted. I am very grateful.
  Lord Evans of Temple Guiting: Perhaps I may very briefly add my thanks to everyone. I should like in particular to thank those sitting behind me who have done a wonderful job in getting the file together under great pressure and worked late and got up early. They have really done a terrific job. I am very conscious of the fact that I have this support whereas my noble friend- and I will call him that—Lord Roberts of Conwy, who has produced a very considerable number of interesting amendments, does not have the support mechanism that I have had.
  Lord Livsey of Talgarth: We have even less.
  Lord Evans of Temple Guiting: It is a tribute to all of you. Thank you all for the spirit in which the Bill has been approached. It is terrific that we can all go home on Thursday lunch-time rather than come back to the Moses Room. Thank you all very much indeed.
  Lord Roberts of Conwy: I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 42 agreed to.
  Clause 43 [Orders, regulations and directions]:
  [Amendment No. 51 not moved.]
  Clause 43 agreed to.
  Remaining clauses agreed to.
  Bill reported with amendments.
  The Committee adjourned at eighteen minutes before eight o'clock.

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  Regional State Aid Reform
  The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville)
  My honourable friend the Minister for Trade and Investment (Douglas Alexander) has made the following Written Statement:

  On 14 June 2004 my right honourable friend the Minister for Industry and the Regions, (Official Report, Commons, cols. 19–20WS), announced that the European Commission had published proposals for amending the guidelines that govern regional state aid, which define assisted areas and aid intensities allowed within them, for the period 1 January 2007 to 31 December 2013, and that her department would shortly be issuing a consultation document seeking the views of all interested parties on the Commission's proposals.

  My department today published the results of that consultation exercise. Copies of the summary of responses, and the Government's latest letter to the Commission, have been placed in the Libraries of the House. The Commission issued a further paper on its approach before Christmas, and is to hold a first joint meeting with national officials on 1 and 2 February. It then plans to issue detailed proposals in May, for adoption in September this year. The Commission's further paper is available on its website and my department has written to consultees drawing their attention to it.

  Directors' Remuneration Report Regulations 2002
  Lord Sainsbury of Turville
  My right honourable friend the Secretary of State for Trade and Industry (Ms Hewitt) has made the following Written Statement:

  As announced in my Written Statement on 25 February 2004 (Official Report, Commons, cols. 51–52WS), my department commissioned a report on compliance with the Directors' Remuneration Report Regulations 2002 ("the regulations") during the course of this year's AGM season, including an assessment of changes in remuneration practices. Deloitte and Touche
  WS 48
  LLP was appointed to carry out the work following a competitive tender process. Its report is today being placed on the DTI website at www.dti.gov.uk/cld/Deloitte_Rep_DRRR_2004.pdf and in the Libraries of the House.

  The report underlines the positive impact of the regulations and the effectiveness of the Government's action in subjecting directors' remuneration to closer scrutiny by shareholders. It reveals high levels of company compliance with the regulations, better clarity of disclosure on remuneration, improved communication between companies and their shareholders, and changes in companies' remuneration policies and practices improving the link between pay and performance. It also suggests that further legislation in this area is neither necessary nor desirable and that further improvements to disclosure and the linkage between pay and performance are best pursued through the development and implementation of best practice guidelines.

  In the circumstances, while I will continue to keep the position under review, I have concluded that further changes to company law requirements in this area are not needed at this stage.

  The report suggests some minor changes to the regulations in order to clarify what is required and improve transparency and the quality of the information provided. My department will be considering the need for these changes in the light of views expressed by stakeholders and better regulation principles. If, as a result, we consider that changes are made, these should not involve additional costs or additional regulatory burdens on companies or shareholders.

  In my February Statement, I welcomed the action taken by the Association of British Insurers and National Association of Pension Funds and by the Confederation of British Industry in producing guidance on directors' contracts. The report provides a basis for the further development of this guidance. I now call on these groups to work towards providing a common set of guidelines by the end of the year.

  While the report is encouraging, there is no room for complacency. The challenge for remuneration committees and their advisers remains to produce rewards packages which tie pay and performance targets to the creation of long-term value for shareholders and are transparent to shareholders. Shareholders, for their part, should satisfy themselves that remuneration arrangements for directors are in the best interests of the company. They must also be vigilant and ensure that situations where directors enjoy rich rewards while companies perform poorly and shareholders and employees suffer are challenged.