Clause 44 - The judges of the Court of Protection
Mental Capacity Bill
3:15 pm

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

I beg to move amendment No. 60, in clause 44, page 24, line 16, at end insert

'and

(c) ensure that at any time at least one of the judges nominated to the Court shall be experienced in matters connected with learning difficulties, one of the judges shall be experienced in matters connected with mental illness, and one of the judges shall be experienced in matters connected with progressive dementia.'.

Mr James Cran (Beverley and Holderness, Conservative)

With this it will be convenient to discuss amendment No. 61, in clause 44, page 24, line 20, at end add

'and in particular he shall report to the Lord Chancellor annually on the operation of this Act'.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

I tremble in the presence, metaphorically, of the Lord Chancellor at the thought of trespassing on his patch or, indeed, that of the president of the Judicial Appointments Board, who clearly would take an interest in these matters. We should really debate elsewhere the appointment of judges. I hope that the amendments are, as some have been, simply a statement of obvious good practice, but I hope also that when drawing up his panel for the Court of Protection the Lord Chancellor will have regard to the three requirements outlined in amendment No. 60. They might be found in the experience of one judge—it would be perfect if they were, or if such experience were available to all judges in the court. Learning difficulties, mental illness and progressive dementia are by no means a wholly inclusive list of the conditions that might give rise to mental incapacity, but they are three obvious major components of it. I hope that judges' experience or

their collective wisdom will be allowed to bear on these matters and that a suitable judge will be empanelled to hear such cases.

Amendment No. 61 deals with an issue that tends to arise, for example, in relation to tribunal work, which I appreciate is more diffuse and the number of cases is much greater than in the Minister's estimate for the Court of Protection. There should be an annual report to the Lord Chancellor on how the legislation is operating. I have deliberately left the amendment somewhat vague, because I am not absolutely sure what such a report should contain. It might be appropriate for the president or Master of the Court of Protection to decide that. I am simply anxious to provide a mechanism or a formal gateway for reports to be made to the Lord Chancellor about any concerns.

A report might consider whether there was a much greater work load for the court than had been expected and, by inference, whether that distorted whether decisions should be taken at court level or at deputy level on behalf of the court. It might consider whether there was systemic malpractice in the use of LPAs, or it might consider particular provisions—for example, those on advance decisions or the independent consultee, which have attracted a lot of attention in Committee—if they went wrong if there was continuing financial malfeasance. Those are the sort of matters that I have in mind.

If the Act were not working out as intended, even if we had the best of intentions when we passed the legislation in Committee, it would be useful for someone with senior judicial experience who was close to the action to be able to say to the Lord Chancellor, ''We're a bit worried about this—it's not working out as the Committee thought it would when, with the best of intentions, it passed the legislation. Someone needs to think about it.'' I am sure that the Minister will say that that could happen anyway and that a letter could be written, but the amendment would provide a formal opportunity for representations to be made every year.

That would certainly be a good idea in the initial stages, because until the system settles down, the culture begins to change and, as the Minister said, case law begins to build up, we shall not really know where we are going. We hope that we are going in the right direction and we might even anticipate that we will, but the amendment would provide another safeguard and filter to ensure that any in-course correction necessary could be made.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

Again, I fully understand the intention behind the proposal. It is important to ensure that the new Court of Protection has the right judges to deal with the often sensitive, complex and important cases that come before it. It is right to say that the court will deal with a wide range of cases and, accordingly, will need a wide range of judges, from district judge to High Court judge, with different types of experience and background. That includes some with a financial background and those who currently sit in our family courts. Some cases will be high profile and extremely sensitive—there have been a few during the past month—and those will be dealt with by the High

Court judges who currently deal with them and who have vast experience to bring to bear in deciding about them. Other cases will be more mundane, although extremely important for those involved. The present Court of Protection deals with financial cases, some of which are fairly straightforward and others more complex.

Judges will be nominated to work at the new court on the basis of their skills, experience and expertise in dealing with people with mental capacity issues, but those do not have to be based on experience of a particular medical condition. Because of the wide spectrum of conditions that may affect the capacity of any person to make a decision, we do not think it necessary or helpful to nominate a judge with experience of any particular condition. We could not ensure that a judge with the relevant background was available to deal with every case involving the medical condition in which they were experienced, and it would not be practicable to nominate judges on the basis of a particular experience, as to do so would prevent nomination on merit. Our tradition and the detailed way in which we ensure that someone is appropriate to become a judge means that the process is about merit and about experience that is built up both in practice and on the bench.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

I have no problem with the way in which the Minister is replying. Will he advise the Committee whether a judge might be able to appoint an assessor, not to judge the case, but advise him technically on some of the issues involved? How could that be effected? Would that be helpful to the judge if he did not have expertise specific to a detailed case, although he had high merit and much experience in related matters?

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

There are mechanisms under the new, revised civil procedure rules, with which the hon. Gentleman many not be familiar. He will know, however, that the House debated that matter at length. We are grateful to Lord Woolf for his work on that. Under those procedures, there are mechanisms by which a judge can require expertise—assessor is not quite right word—to assist the Court in making a determination. I hope that on the basis of what I have said the hon. Gentleman is able to withdraw his amendment.

Turning to amendment No. 61 and the work of the Court, it is important to remember that the new Court of Protection will come within the scope of the Courts Act 2003 and, as such, will be included in the Lord Chancellor's report on how he has discharged his general duty in relation to the courts, which he must prepare and lay before Parliament 18 months after the commencement of section 1 of the Act, and annually thereafter. It is not necessary to prescribe in legislation the reporting mechanisms of a particular court. It might, for example, be appropriate for the Lord Chancellor or the public guardian, rather than the senior judge of the court, to provide a report on aspects of the Bill.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

Will the Minister at least confirm that it is not outwith the scope of any such report to include

matters that were not heard in court, for example, the operation of the deputy system, where appointments have been made by the court, but, by definition, their deliberations are not within the court? That would ensure that the system is working.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

I am grateful for that. We must allow flexibility; I do not want to prescribe the form, but as the court becomes established and works more closely with the Office of the Public Guardian, the two reports may come together. It is right to leave it to those with the necessary expertise to say how they propose to keep people up to date. On that basis, I hope that the hon. Gentleman will ask leave to withdraw the amendment.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 44 ordered to stand part of the Bill.