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 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.