Clause 41 - Codes of practice: procedure
Mental Capacity Bill
2:30 pm
Mr Paul Holmes (Shadow Minister (Work and Pensions), Work & Pensions; Chesterfield, Liberal Democrat)
I beg to move amendment No. 147, in
clause 41, page 22, line 37, after 'preparing,', insert 'publish'.
Mr James Cran (Beverley and Holderness, Conservative)
With this it will be convenient to discuss amendment No. 58, in
clause 41, page 23, line 5, at end insert
'including the use of abridged or simplified versions and alternative formats, and shall take such steps as he may deem appropriate to ensure in the future that donees, deputies and others involved with the operation of this Act are familiar with its provisions'.
Mr Paul Holmes (Shadow Minister (Work and Pensions), Work & Pensions; Chesterfield, Liberal Democrat)
I must confess to the Committee that the more I look at the amendment the more I realise that it is not well drafted, because if the word ''publish'' were simply inserted in the clause, the subsection would not read correctly. I therefore ask the Minister and the Committee to treat it as a probing amendment and respond to it in that spirit.
As we heard this morning, the pre-legislative scrutiny Committee recommended that the Bill should not be introduced in Parliament without a draft code of practice, so it is much to the Government's credit that they responded to that request and produced a draft code of practice at an early stage to inform discussion on the Bill. It is important that that happened, because when enacted, the Bill will rely so much for its day-to-day working and implementation on the details in the code of practice. The fact that, unusually, the Government took such a step is welcome.
In the preface to the draft code of practice, Lord Filkin emphasised that
''consultation will be vital in ensuring that the ultimate code is helpful to stakeholders and others who will be responsible for implementing future legislation.''
Clause 41(2) requires that the final code or any revision of it be
''laid before both Houses of Parliament'',
and a 40-day period will be allowed for either House to say whether it intends to accept or refuse the draft code, so the argument that the code or a future revised code would have to go before the Houses of Parliament for consideration is therefore covered.
Amendment No. 147 is directed more at the early consultation stage before a future code or revised code is brought before Parliament. It would ensure that the widest possible consultation takes place before the final stage when the code is laid before Parliament. Clause 41(1)(a) and (b) require that before
''preparing or revising a code, the Lord Chancellor must consult—
(a) the National Assembly for Wales, and
(b) such other persons as he considers appropriate.''
The amendment would require the publication of the consultation document at the early stage, not simply the publication of the final code to go before Parliament.
The Under-Secretary of State for Constitutional Affairs, the hon. Member for Tottenham (Mr. Lammy), may reassure me that there is no problem. However, there is the danger that if the key consultation took place with a limited number of people whom the Lord Chancellor considered it appropriate to consult, many disability organisations and interested parties might feel left out of the process and consider that they could not have an input until the late stage, when the final or revised code goes before Parliament.
The fear is that the early consultation about the proposed changes would be too restricted and that the wider feelings of those concerned might be excluded or overlooked. The Minister might say that the usual consultation process on behalf of the Lord Chancellor would be wide-ranging and how public the consultation would be, so that as many people as possible could take part in it. If I receive such assurances, amendment No. 147, badly worded as it is anyway, would not be necessary.
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
I shall speak briefly to my amendment No. 58, which is grouped with amendment No. 147. I shall not dissent from the comments that have been made about the earlier amendment. We all understand the approximation of amendments, like the approximation of one or two other things that we want to do in this place.
The first part of my amendment speaks for itself, so I will not dwell on it. It is about using sensible alternative formats, and the Minister has already explicitly accepted that as a principle, and to some extent as a practice. However, I do want to speak to the rest of the amendment.
There is an aspect of public policy about which I have an abiding worry. Legislators are interested in passing legislation but they are bad at implementing it—although in one sense, it is not for us to do that. I say this with no disrespect to the current batch of Ministers or to their predecessors of different political parties, but it is much more exciting to legislate and
brings things into being than it is to carry things on. That is one reason why we have moved towards an agency system in many areas, and I realise that the public guardian will operate as an agent.
I will not go into that further, but I want to make the following point: we can all get excited about bringing issues together and debating them, passing law, considering a draft code, consulting on it and putting it in place, and then—like the hen that has laid an egg and goes round the yard clucking—we can all think we have finished the job. In fact we have not finished it, because that is when the really hard work of implementing the code and adapting to changing the entire culture, which Ministers and others have agreed is appropriate, needs to take place. That is also not something we can do on a one-off basis. Having a code is not in itself sufficient to ensure that further down the line people comply with the code and regard it as their natural way of looking at things.
The second half of the amendment is simply intended to ensure that when the Lord Chancellor publishes the codes, mechanisms are put in place to draw them constantly to the attention of people as their family circumstances change—for example, a lasting power of attorney may kick in for the first time and they need to operate it. That is not a difficult thing to ask for, but it is quite a difficult thing for Ministers to achieve. They need to resource it; there are some helpful provisions in respect of the financial effects referred to in the explanatory notes. They also need to ensure that it is kept up to date, and that it is brought to the attention of those who need to know about it. We cannot address that in Committee, but it is an important part of this process.
My amendment is designed to flag that up. Even if Ministers are not minded to accept the text of it, I do not imagine for a moment that they will wish to dissent from its sentiments—and if they do, we should know about it. It would be helpful if the Minister were to give us some idea of how he will meet the objectives.
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
On amendment No. 147, I assure the hon. Member for Chesterfield (Paul Holmes) that by the time the code is published it will have undergone a long process of formal and informal consultation. That is important; the more collaborative and informed the process, the better the code. We all want to get the code right. That is why we have published it in draft at this stage, and that is why the Minister of State, Department of Health, my hon. Friend the Member for Doncaster, Central (Ms Winterton), and I have said that we are keen for Members to contribute to the code as things progress. I also want to make sure that the code speaks to all the different groups of people that it needs to address, and that they clearly understand it, and we can only do that if we get input from those people. This process will take many months and the draft that is finally laid before Parliament will have been informed and improved by both laymen and experts.
As the hon. Gentleman suggested, the consultation will be wide. We already have a broad consultative forum; there are almost 100 members. They include
groups such as the Making Decisions Alliance—I say nothing about that name—which have a huge range of organisations with a very wide membership. Of course we will comply with the Cabinet Office guidelines as regards consultation. On that basis, it will not be necessary to have further formal consultation just before publication. Having consulted fully, it would be perverse to publish a quite different document.
Mr Paul Holmes (Shadow Minister (Work and Pensions), Work & Pensions; Chesterfield, Liberal Democrat)
I accept that the current draft of the code is undergoing early consultation, and will undergo further consultation, too. Subsection (1)(b) is about future revisions of the code, perhaps in 10 or 20 years. What reassurances can the Minister offer about who the
''such other persons as he considers appropriate''
might be at some unspecified point in future?
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
I strongly suspect that those persons will be the groups as they are now, because they will be plugged into the code. If amendments are needed, they will be part of a process in which they inform the Government whether things have moved on. Also, the draft code will be subject to the negative resolution procedure, so there may be debate on it.
On amendment No. 58, or at least the first part of it, the Department for Constitutional Affairs is committed to producing accessible versions of publications likely to be of interest to those lacking capacity. I spoke about that this morning. I am pleased that we have put accessible documents on the DCA website. The Bill was in easy-to-read form, as I said. We have not produced the draft code in easy-to-read form, because it is a draft—and on that basis, I hope that the hon. Gentleman will withdraw his amendment.
The other aspect of amendment No. 58 is that it would ensure that the Lord Chancellor took steps to ensure that people were familiar with the code. Subsection (3) already requires the Lord Chancellor to bring the code to the attention of all those people likely to be concerned with its provisions. The hon. Gentleman's amendment would require the Lord Chancellor also to take steps to ensure that those people were familiar with its provisions.
I fully understand why the amendment was tabled, because the code will not be successful if people do not know about it, but the Office of the Public Guardian will be instrumental in bringing the code to the attention of deputies and attorneys. Mechanisms will also be in place for making sure that health and social care professionals and paid carers are aware of it. The hon. Member for Daventry has already said that the Public Guardianship Office is holding seminars and workshops, is informing people and is outward-looking. I am sure that we will have further discussion about that this afternoon.
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
Again, the Minister is trying to answer our points. What if an attorney has a one-off problem that he wants to run past the public guardian, and is not as familiar as he might be with the codes, or does not understand them fully? I take it that in those circumstances the public guardian would be available to give advice on the problem. If, arising from that, a decision had to be taken, could the public guardian, as
it were, pre-clear that decision, so that the attorney felt confident with the situation when he had taken that advice?
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
Yes to both questions. I hope that the hon. Member for Chesterfield will be further reassured to hear that we will undertake research to evaluate the success of the legislation and the code. That will include taking surveys among the general public and carers on awareness about some of the main provisions of the Bill and the code. I hope that the hon. Gentleman will withdraw his amendment.
Mr Paul Holmes (Shadow Minister (Work and Pensions), Work & Pensions; Chesterfield, Liberal Democrat)
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
I beg to move amendment No. 55, in
clause 41, page 22, line 41, leave out 'laid by him' and insert 'approved'.
Mr James Cran (Beverley and Holderness, Conservative)
With this it will be convenient to discuss the following amendments: No. 56, in
clause 41, page 23, line 1, leave out paragraph (b).
No. 57, in
clause 41, page 23, line 6, leave out subsections (4) and (5).
No. 66, in
clause 61, page 32, line 28, after 'under', insert
'section 35, section 39, section 41 or'.
No. 68, in
clause 64, page 33, line 18, at end insert
', but may not come into force until after approval of both Houses of Parliament of a draft Code of Practice under section 40 of this Act'.
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
The amendment would introduce an affirmative resolution procedure in respect of the code. In my view, that would be desirable. It may be for the Minister to consider whether that should be done on the code's first publication and converted to a negative resolution procedure for subsequent cases.
Several Committee members will be familiar with the special educational needs code that proceeded in parallel with the Special Educational Needs and Disability Act 2001, during the discussion of which I led for my party. In another place there was, frankly, something of a row about the draft code, and it was taken back and redrafted. I do not seek to make trouble for the code, and the way in which the Minister has been trying to answer the debate has given me some encouragement, but it would be an important parliamentary event and would merit an affirmative resolution procedure.
Amendment No. 68 would not allow the Bill to come into force until the draft code had been approved. I think that the Minister would agree and would concede that he sees the code as an integral part of the package, another part of which is the Bill. The one will not work effectively without the other. Like other Committee members, I acknowledge the Department's considerable achievement and its wise move in producing the draft code—in its first and working stage; we understand that, and make allowances for it—so that the Committee could be informed. I am sure that it will repay further study
after the Committee has concluded. It would be a very good idea for the draft code to be approved before the final implementation of the measure, not least because some of the assurances that we have sought to put into the Bill are, in the Minister's book, read into the code.
Those are all matters of judgment and decision; there is no absolute truth one way or the other. No doubt, the Minister will say persuasively that it would be possible to pray against the provisions, trigger a debate and even persuade the usual channels, in extreme cases, that we should have the debate on the Floor of the House. I understand that, but in that case the mechanism would not be loaded towards proper public consideration. It is important that we should have a good public debate at the outset about a matter that, as the Minister has conceded, affects a large number of people. The aim of such a debate would not be simply to scrutinise, let alone, necessarily, to criticise, but to inform public opinion and put the matter into a wider format than this Committee. It would also ensure that parliamentary colleagues, who will have to handle some of the casework, would begin to become familiar with what is required.
The amendments are not aggressive, but they are worth consideration.
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
I remind Committee members that there was no requirement for the draft code to be subject to a negative resolution procedure in the draft Bill, nor in the Law Commission's earlier draft of it. Despite the Joint Committee's deep interest in the code, and the extensive hearings that it held on all mental capacity issues, it did not suggest that the code should be subject to the negative resolution procedure.
However, it will be necessary to go a step further. As case law develops, we may revise sections of the code regularly—perhaps several times a year. It would be very cumbersome for Parliament to have to debate each revision. The first revision of the code laid before Parliament will have been subject to extensive consultation. I have indicated the range of groups with which we are working, and that has been the tone of the entirety of the Committee's proceedings. Following Royal Assent, a fully revised draft code will be put out for formal public consultation in accordance with Government guidelines on consultations, and we will consult before each revision.
I fully expect the Bill's code to be as successful as those issued under the Disability Discrimination Act 1995, which were praised by one of the witnesses to the Joint Committee. Those codes were subject to the negative resolution procedure. We believe that that is also the right level of scrutiny for our code. I hope that the hon. Member for Daventry agrees that in providing a very early draft of the code for the benefit of the Committee, we have shown our commitment to getting it right and to continuing the consultative process throughout.
Amendment No. 66 specifically deals with subjecting the independent consultee service to the affirmative resolution procedure. My hon. Friend the Minister of State said that we would consider whether the regulation-making power in clause 39 that enables us to extend the role of the independent consultee
might need greater scrutiny, for reasons about which we have already had extensive debate. Those regulations will allow an extension of the independent consultee's function to new situations that will not have been considered by Parliament. That is different from the code, which will aim to reflect the Bill when it emerges from parliamentary scrutiny.
With regard to amendment No. 68, and its context in the commencement of the Mental Capacity Act, we do not anticipate that the Act will come into force before 2007, because it is important that all the necessary preparatory work to get the measure right is carried out. Producing the code of practice is an important part of that preparation, and I want to ensure that the code is published in good time before the Bill is implemented. I do not anticipate any difficulties in having the code ready in time. I hope, therefore, that the hon. Gentleman will withdraw the amendment.
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
I am grateful to the Minister for his comments, although I must say that I am not wholly persuaded. However, it is getting rather late in the day and so I do not intend to force the issue at present. The argument that no one said that they wanted something is not of itself sufficient to say that it should not happen. I am also slightly worried that Ministers are beginning to develop a habit of saying, ''Let's consult everybody else, but the last people we should consult are Members of Parliament.'' By that I mean no disrespect to the stakeholders or the interested parties, to whom we are grateful for the briefing that they have provided for us, collectively and individually, and with whom the Minister is right to consult. I do not want that comment caricatured as suggesting that Members of Parliament are the only people with any wisdom in the matter—that is certainly not the case. However, I am saying that a degree of parliamentary hurdling is quite an important part of the process, although I know that it is tedious for Ministers and does sometimes hold things up, which is a consideration. I think that we as a Committee may say modestly that the fact that we have been putting the Minister over the jumps in the Standing Committee has been worth while and good for him, if I may say so, because it has not been partisan—we have all been involved.
I indicated that there are areas of judgment in these matters. There is also the possibility of disseminating the code more widely—not just to the stakeholders but to other interested parties, including interested Members of Parliament. The Minister has already referred to the codes under the Disability Discrimination Act. Wearing another hat, I received those codes and commented on them as a consultee; I was pleased to do so. Perhaps, as Members of Parliament, we do not do that often enough.
The Minister might like to consider the whole process again, but at this stage I am not going to spoil my duck by forcing the issue. However, I would not like the Minister to feel that we are entirely convinced on this or on one or two other issues: we are not. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 41 ordered to stand part of the Bill.