Schedule 3 — Property and affairs: supplementary provisions

Orders of the Day — Mental Capacity Bill – in the House of Commons at 6:11 pm on 14th December 2004.

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Amendments made: No. 30, in page 46, line 11, leave out sub-paragraphs (1) and (2) and insert—

'(1) If the donor of a lasting power is habitually resident in England and Wales at the time of granting the power, the law applicable to the existence, extent, modification or extinction of the power is—

(a) the law of England and Wales, or

(b) if he specifies in writing the law of a connected country for the purpose, that law.

(2) If he is habitually resident in another country at that time, but England and Wales is a connected country, the law applicable in that respect is—

(a) the law of the other country, or

(b) if he specifies in writing the law of England and Wales for the purpose, that law.'.

No. 31, in page 47, line 4, leave out from first 'party' to end of line 14 and insert—

'(2) The validity of the transaction may not be questioned in proceedings, nor may the third party be held liable, merely because—

(a) where the representative and third party are in England and Wales when entering into the transaction, sub-paragraph (3) applies;

(b) where they are in another country at that time, sub-paragraph (4) applies.

(3) This sub-paragraph applies if—

(a) the law applicable to the authority in one or more respects is, as a result of this Schedule, the law of a country other than England and Wales, and

(b) the representative is not entitled to exercise the authority in that respect (or those respects) under the law of that other country.

(4) This sub-paragraph applies if—

(a) the law applicable to the authority in one or more respects is, as a result of this Part of this Schedule, the law of England and Wales, and

(b) the representative is not entitled to exercise the authority in that respect (or those respects) under that law.

(5) This paragraph does not apply if the third party knew or ought to have known that the applicable law was—

(a) in a case within sub-paragraph (3), the law of the other country;

(b) in a case within sub-paragraph (4), the law of England and Wales.'.—[Mr. Lammy.]

Order for Third Reading read.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs) 6:25 pm, 14th December 2004

I beg to move, That the Bill be now read the Third time. I do so with great pleasure.

This is an important and ethical Bill. Our progress on it has been fast, and much of today's debate has pertained to that. I think it right that, to meet the concerns of Members throughout the House, the Lord Chancellor undertook to continue discussions and negotiations until the eleventh hour, and I am pleased that Members have felt able to support the Government in the Lobbies on the basis of that. I am glad that we have achieved the ends, even if the means were a little unusual for Parliament.

Photo of Mr Kevin McNamara Mr Kevin McNamara Labour, Kingston upon Hull North

I apologise for intervening so early in my hon. Friend's speech, but can we take it that the Government accept completely, precisely and in terms the interpretation of the correspondence between the Lord Chancellor and Archbishop Smith that the archbishop gives in his letter dated today?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I hope that my hon. Friend will forgive me if I say that I have been here all afternoon while others have continued the negotiations. We have talked about the exchange of letters. I have said that I accept the spirit of the intention behind the amendments. The discussion continues so that a draft amendment can be tabled in the other place, and can be debated here in due course.

As I said, I have been here while discussions have gone on. I am pleased that they have been going on, because they were part of an effort to make the Bill better. I want to pause for a moment, however, to explain why the Bill is so important and why organisations that work daily with vulnerable people who need such legislation—organisations such as the Alzheimer's Society, Scope, Mencap, the Disability Rights Commission and Age Concern—support it. They support it because they want people who lack mental capacity to be valued and treated with respect.

Photo of Tom Clarke Tom Clarke Labour, Coatbridge and Chryston

I thank my hon. Friend for his courtesy throughout our proceedings. As he mentioned disability organisations, and as I asked the Minister of State, Department of Health, my hon. Friend Ms Winterton a question but unfortunately time ran out, will he confirm that the word "advocates" will be used rather than the word "consultees"?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

My right hon. Friend's points will be considered in the other place. We value the spirit in which he has spoken about advocacy throughout the Bill's passage so far.

Why have organisations that have campaigned on what are indeed advocacy issues, and have worked in particular with people with learning disabilities, supported the Bill? They want those who lack capacity at different points, or who lack it entirely, to be able to make as many decisions as possible. The Bill's decision-specific approach to capacity means an end to the days when people were labelled incapable. Instead, they will be assumed to have capacity for each and every decision until it is established that they lack it.

Photo of Angela Browning Angela Browning Vice-Chair, Conservative Party

I served on the Scrutiny Committee and the Standing Committee, and I shall abstain on Third Reading tonight, as I did on Second Reading, because the Minister has not yet dealt with two key elements. First, end-of-life issues have not been dealt with satisfactorily here and they will now be passed to the other place. Secondly, as I said in Committee and as the Scrutiny Committee clearly recommended, we need to close the Bournewood gap. The Government have said nothing about how they intend to close that gap. Is the Minister going to use this Bill or existing mental health legislation to do so? He cannot afford to wait for the draft mental health Bill, which I am currently scrutinising.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

The hon. Lady has heard the substance of my remarks on the issues pertaining to life-sustaining treatment. We are where we are, and all of us must applaud the fact that we are beginning to settle these important and vexing issues. Throughout our proceedings the hon. Lady has raised the issue of the Bournewood gap, and as we have said, we must consult on that important decision. I hope that she realises that we are doing so, notwithstanding her concern about how the Government deal with the problems arising from that case post-consultation.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

If I may I shall make some progress.

Those who support the Bill do so because they want those who lack mental capacity to be at the heart of the decision-making process. The Bill requires that everything done for someone who lacks capacity should be in their interests, and that it must be the best for that individual at that time, taking into account all the relevant factors. Those who support the Bill do so because they want professionals and carers—some 6 million of them—to know what they can do for and to people who lack capacity, and when and how they can do it. The Bill and the code of practice, which has statutory effect, will provide the guidance that we were able to put in draft form, and to which Members and various organisations have contributed.

Throughout the development of this legislation, the Government have listened to the wide range of people affected by it, some of whom I mentioned earlier. They include groups representing people with disabilities, the 39 organisations in the Making Decisions Alliance, professional bodies, the Catholic Church and pro-life organisations. The Government have also consulted Members extensively, and the Bill has developed and improved greatly as a result of such consultation. When the Government listen and act as a result of Members asking us to listen, Members cannot then accuse us of bypassing Parliament.

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

The Minister says that the Government have listened, but I do not understand why we have reached this stage. What consultation with Opposition Members and his own colleagues has to offer us is two letters at the eleventh hour, indicating that changes will be made in the Lords. That does not suggest that the Government are listening, given that such changes could have been made long before. One letter states:

"Any decisions must be in the patient's best interests", and the other letter, from Archbishop Smith, says the same. But even knowing that, the Minister moved an amendment to amendment No. 2, which was tabled by one of his own hon. Friends, in order to remove the word "best". Are the Government going to reinsert "best" in the Lords? How is the Minister going to deal with this issue?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I hope that the right hon. Gentleman knows that the situation is not as simple as that. We tabled the amendment to remove the word "best" because we want the "best interests" clause to constitute the objective judgment at the end of the process. As drafted, amendment No. 2 did not achieve that. The new amendment, which the Lord Chancellor discussed today, deals with purpose, motive and best interests at the end of the process, so the two amendments are different.

On the Bland judgment and the 36 subsequent cases, I make no apology for the way in which we have dealt with this complex issue, which has challenged the minds of lawyers throughout the country. Indeed, different lawyers have taken different views about the effect of the amendment.

The Government position is clear: we do not want to see Bland overturned, which is also the position of the Catholic archbishops. We have sought to ensure that we do not bring in euthanasia by omission, while at the same time resisting overturning the Bland judgment. That is why discussions have continued and why, even as I speak, I am receiving submissions on the negotiations. We may not like the means, but we should be pleased with the ends and I hope that the matter will be settled in the other place before it comes back here.

Many hon. Members have made invaluable contributions to the scrutiny of the Bill. Mr. Boswell has been remarkable in his thoroughness. He is a self-confessed serial amender who relentlessly tabled probing amendments in Committee, which helped us to discuss key aspects of the Bill in greater depth. Throughout the process, he balanced constructive questioning with support for the Bill.

It is as a result of one of the hon. Gentleman's questions that we tabled two amendments to clause 4. We wanted to make it clear that the test of best interests should be objective. Our amendments make it clearer that we must take into account all the factors that a reasonable person would consider relevant—an important clarification that I hope was not entirely lost, at least for the Hansard record, in our earlier debate about life-sustaining treatment. The key point is that we cannot substitute our own judgments: they must be objective with a doctor balancing all the issues before him, particularly when they relate to life-sustaining treatment.

Photo of David Drew David Drew Labour/Co-operative, Stroud

So will the Minister give an assurance that when we receive the final outcome of the Burke judgment, it will play a part in respect of the rubric not just of the Bill but of the code of practice?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

My hon. Friend will know that Burke is under appeal now and that important issues are involved in that case concerning positive statements of what one wants and desires. The Government will consider it in due course as the case proceeds.

Mr. Burstow was also a valued member of the Committee. It was his amendment and a similar one tabled by Mrs. Browning that led us to introduce an amendment to clause 3, under which the Bill provides that information must be explained to a person in a way that is appropriate to his circumstances. There is no longer any doubt: no one should be labelled incapable merely because insufficient efforts have been made to help him understand and communicate.

On life-sustaining treatment, I have already mentioned that discussions on the issue continued up to the very last moment today, showing how very seriously the Government take people's concerns, particularly relating to the vulnerable, to advance decisions and to the power of attorney. I said earlier that we greatly welcome the amendment tabled by my hon. Friend Mr. Howarth. We value his commitment to the Bill, to helping vulnerable people and to building consensus around his amendment. We shall take the substance of his amendment forward, as I explained earlier, subject to the adjustments introduced by the Government, just as we have also accepted the spirit of new clauses 1 and 2. We want to build on my hon. Friend's amendment to make it clear that the Bill does not authorise any decision motivated by a desire to bring about a person's death. We have also made it clear that we want to ensure that advance decisions about life-sustaining treatment are recorded in writing and witnessed. We are also exploring with health care professionals whether we can make it a requirement for people to consult their doctor before taking such an advance decision.

Let me make it quite clear that the Bill both clarifies the law and makes it safer. The difficult and sensitive cases will, as now, go to court. Our new court of protection means that cases of persistent vegetative state will still go to court.

Throughout the Bill's passage hon. Members have talked about what might happen when wicked people—be they doctors, attorneys or others—conspire to bring about a person's death without regard to that person's best interests. We have sought to put safeguards into the Bill. None of us can say that such things can never happen again, but the Bill's purpose is to protect vulnerable people as much as possible. I am sure that we have achieved that, and in that regard I refer in particular to clause 58 and the work of the Joint Committee on Human Rights. We have also worked with the Catholic community on amendments dealing with advanced decisions, life-sustaining treatment and the purpose or motive that might lie behind bringing about a person's end.

I hope that I have been able to paint a clear and accurate picture of what the Bill will do. Much information has been spread about it, and I want to reassure the House and the public that it is about protecting the rights and interests of vulnerable people, regardless of the present political environment. People in Britain will benefit from the Bill, and we should be proud of it. It has been coming for 15 years, and I am very pleased to be the Minister opening this Third Reading debate.

Photo of Tim Boswell Tim Boswell Shadow Minister, Economic Affairs, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Work and Pensions) 6:42 pm, 14th December 2004

This Bill raises immensely serious issues. All parties involved in the debate—and Ministers too, largely—have engaged in the effort required to put it into an acceptable state. As the Minister said, the Bill has had a 15-year genesis already. Hon. Members have worked together to achieve the common objective of assisting persons with mental capacity problems. We all recognise the sensitivity of the issue, and have searched for the appropriate safeguards.

The case for the Bill was well expressed on page 27 of the recent report from the Joint Committee on Human Rights. The Committee states:

"Our view on initial consideration is that the Bill should be broadly welcomed from a human rights perspective because it enhances the ability of people who lack capacity to make their own decisions where they can, and makes it more likely that sound decisions will be made on their behalf when they cannot make those decisions for themselves."

That is a strong case for the Bill, but the Committee continues in the same paragraph:

"A number of human rights issues arise, mainly concerning the adequacy of the various safeguards contained in, or envisaged by, the Bill."

That warning is perfectly reasonable. The Bill will help by codifying the existing common law, for example in relation to advance decisions. I was prepared to support the Government in the Lobby tonight on that, although I was not prepared to do so on other matters.

I want to emphasise the safeguards that are required and, for reasons of convenience of reference, I shall follow the schema adopted by the Joint Committee. First, I turn to the matter of the Bournewood gap. My hon. Friend Mrs. Browning spoke characteristically powerfully about a matter on which the Minister said that he and his colleagues were still consulting. However, we need to deal with the problem promptly, and this Bill is the appropriate vehicle for that.

Photo of Angela Browning Angela Browning Vice-Chair, Conservative Party

My hon. Friend will know that in Standing Committee I tabled new clauses to try and close the Bournewood gap. I understand that the Minister needs to consult, and I know that the lawyers are taking their time and are supplying differing legal advice. I do not criticise the Government for that, but it is clear that they have three options. If they opt for closing the Bournewood gap by means of this Bill, the relevant provision will have to be introduced in another place. I am concerned that this Chamber has not had a chance to discuss the matter in full, as I would have liked.

Photo of Tim Boswell Tim Boswell Shadow Minister, Economic Affairs, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Work and Pensions)

My hon. Friend raises the issue of what will come back from the other place. Given the state of the Bill at the moment, I hope that Ministers and Whips will take very seriously the need to involve this House as well.

The wider issues of reservation on human rights grounds also referred to by the Joint Committee include restraint, not just in the context of Bournewood; advance decisions; the conditions for research, which we have just been discussing; the need to see clear and unequivocal evidence in writing of the Government's commitment to deal with issues around motives for ending life, which has been expressed almost universally in this House; and other conditions of care, including nutrition and hydration. Those are central issues.

This afternoon's proceedings did little good to the reputation of the Department or the Minister, I am sorry to say. I hope that he and others have learned their lesson about the credibility of the Bill. It is right, proper and essential to consult all relevant bodies, but the prior consultees should always be the Members of this House and their interests in the matter.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Does my hon. Friend agree that it is very difficult for us to reassure our constituents that their concerns are being properly heard in this House when the events of today show that the work has not been done, the papers have not been presented and we have not been involved, because of the incompetence of Ministers rather than an intention on their part to do wrong? We must be involved more effectively or our constituents feel disfranchised.

Photo of Tim Boswell Tim Boswell Shadow Minister, Economic Affairs, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Work and Pensions)

I have every sympathy with the remarks of my right hon. Friend on that point. I can understand why, in the circumstances, the Minister might want to get shot of the Bill and to pass it to his colleagues in the other place. I am sure that their lordships will do a good job of scrutiny on the Bill, but they are not the same as us and we still have an unfinished interest in it.

The Minister was generous enough to mention that, as a result of pressure from Opposition Members in Committee, he has already carried out effective and useful improvements, especially in relation to the objectivity of the best interest test. I also acknowledge the introduction of the affirmative resolution procedure for any extension of the independent consultee service, which concerned many members of the Committee. However, every time one issue is resolved another aspect for concern arises. Ministers should not think that the list that I have given is a comprehensive one.

The conclusion is that some progress has been made in considerations in this House, but the Bill is unfinished business and further safeguards are required. For that reason, although I support firmly the principle of the Bill, I cannot give it my support in the Lobby tonight.

Photo of Paul Burstow Paul Burstow Shadow Secretary of State for Health 6:47 pm, 14th December 2004

I share some of the concerns that Mr. Boswell expressed, but I have not come to the same conclusion as to how I should cast my vote. If there is still room to improve the Bill through further scrutiny, albeit in the other place, we should allow it a Third Reading as long as the principles behind the Bill are sound and the purpose of the Bill is good—which the hon. Gentleman confirmed.

I share the hon. Gentleman's concern about feeling like a bystander today on at least one aspect of the consideration of the Bill. The exchange of correspondence around the Chamber, which eventually became available to the Minister, was not the most desirable occurrence. It will have left many outside—and some inside—the House questioning the process that we have been through today. What the Minister said on Third Reading was helpful, but this House still has a clear interest in what will be considered in the other place and the amendments that will be tabled. I hope that the Minister will be able to give us some further indication of how Members of this House will be able to have some serious engagement with that ongoing process.

Photo of Paul Burstow Paul Burstow Shadow Secretary of State for Health

Yes, but I hope that I am not being patronising on this occasion.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

I want to record the fact that Mr. Boswell and my hon. Friend the Minister have been helpful throughout the Bill's proceedings. Although some of this afternoon's events were unfortunate, the finger should not point directly at my hon. Friend.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I should like to point out to Mr. Burstow that, if truth be known, it is precisely because hon. Members on both sides of the House have been pressing the issues—scrutinising Bland, scrutinising purpose—that we have achieved what we have today. The hon. Gentleman should note that.

Photo of Paul Burstow Paul Burstow Shadow Secretary of State for Health

The proof of the pudding is in the eating. As we do not have the amendments, we do not know quite what we have achieved. I want to make clear why I shall support the Bill in the Lobby.

As the Minister rightly said, the measure has been 15 years in the making, although some of today's comments were unfortunate, and the present law is confused and confusing. It allows people who lack capacity to be non-citizens because they lack rights and protections. It cannot be acceptable to leave the law as it currently is, which is why the Bill provides a necessary vehicle to give people far more control over their lives.

The presumption of capacity is absolutely right. The principles set out at the beginning of the Bill have the potential to transform people's lives. They provide a framework in which those who act as proxies can, for the first time, take decisions with proper safeguards not only on health matters but also on welfare and finance. At present, those things are not clear and they need to be. The Bill provides the way to make them clear.

We have strong support from Age Concern, the Alzheimer's Society, Mencap and many others who see the Bill as potentially transformative of the lives of people with learning disabilities, autism and Down's syndrome, but it is only a Bill with potential, as the Disability Rights Commission told us at Second Reading. There are still issues to be addressed and I hope that, in the other place, they will be.

There is the question of equal consideration for those who lack capacity and those who have capacity. There is the interface with the Disability Discrimination Act 1995 and the Disability Discrimination Bill. There is the need further to strengthen the provisions to ensure that a person who may lack capacity is given every possibility and opportunity to communicate their wishes, needs and feelings. Supporting further communication in that respect is extremely important.

We had some useful exchanges on the question of independent consultees. We need to ensure that we end up with a system that is advocacy-plus rather than advocacy-lite, so that we really widen the scope of the role of independent consultees; for example, the system should pick up people who are befriended. We could also address the question of whether "consultee" is the right name. The Minister may ask, "What is in a name?", but it is important to many organisations outside this place.

Mrs. Browning tabled some important amendments in Committee. I pay tribute to her for her work championing the closing of the Bournewood gap, but the mechanism is still not clear. Will it be the draft Mental Health Bill that she is scrutinising, or this Bill? We need that clarity and I hope that it will be forthcoming when the Mental Capacity Bill goes to the Lords. At present, people lack the safeguards they need.

Advance decisions have been a key concern throughout the debate, and I welcome what the Minister said. If, at the very least, we are to codify advance decisions to refuse—as the Bill would do—they must be in writing. It is wrong that the Bill does not address that point and it should certainly be picked up in the other place.

The Bill advances the rights of those who lack capacity and, if we manage to address these issues in the other place, it will improve people's quality of life whether they lack capacity from birth or as a result of illness or accident. The Bill has been 15 years in the making and there is still room for improvement, but it deserves a Third Reading to give it the chance of that improvement.

Photo of Mr Kevin McNamara Mr Kevin McNamara Labour, Kingston upon Hull North 6:54 pm, 14th December 2004

I cannot go into the Lobby with Mr. Burstow because I am still confused. I am confused about what happened this afternoon. I am confused by what seemed to be given with one hand and taken away with the other. In fact, if there were a third hand, it would have been snatched away even further. I may be confused because of my age—I therefore have a vested interest in the Bill—but I am certain that my hon. Friend the Minister is not at one with the interpretation that the archbishop gave to his conversations and correspondence with my noble Friend the Lord Chancellor. I asked him whether the legislation in the other House would reflect Archbishop Smith's understanding as contained in his letter to the Lord Chancellor. He said that that depends on the amendments and on the lawyers, but he could not say yes.

When my right hon. Friend Mr. McFall asked my hon. Friend the Minister whether the legislation would encompass the spirit if not the letter of new clauses 1 and 2, he answered in the affirmative—he said the same in his winding-up speech—but new clause 2 specifically contains the provision about nutrition and hydration. My hon. Friend the Minister seemed throughout the debate to be hung up on Bland. Rightly or wrongly, as Mr. Duncan Smith said, we may have lost the argument on Bland, but for the purposes of our argument today, Bland was out of the window.

All the amendments specifically gave to the courts the right to decide the situation when people are in a permanent vegetative state, so that was outside the argument, but my hon. Friend the Minister spent a lot of his time discussing that issue, as though it were being attacked, when, in fact, none of the amendments was attacking that issue. So we came to the question in Archbishop Smith's letter. His interpretation was that acts of omission in relation to nutrition and hydration would be included in the new legislation in another place, and we have not had a specific reply to that.

I said earlier that I would give the Government the benefit of the doubt on these matters, and I am still prepared to do so on Third Reading by not voting against the Bill, but my hon. Friend the Minister and the Lord Chancellor should bear it in mind that—whatever was agreed between the meeting of the parliamentary Labour party on Monday and meetings between the Lord Chancellor, the Prime Minister and other interested parties last night and undertakings given to Archbishop Smith—there is still an enormous question mark about what was and what was not agreed. Some of the things that my hon. Friend the Minister has said seem to be at variance with what Archbishop Smith seemed to suggest was said in his agreement with the Lord Chancellor. For that reason, I shall again abstain.

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green 6:58 pm, 14th December 2004

I shall be brief; I do not have a lot of choice in the matter. May I simply say this evening that I am not convinced by what took place at the Dispatch Box during the debates on new clauses 1 and 2? I accept fully that the Minister's colleagues would have wanted to believe the best. That is the case in all parties—we want to believe the best of Governments and Ministers of our own party and accept them at face value—but I am reminded of the expression, "A bird in the hand is worth two in the bush." I did not find a bird in the hand at the end of the debate; what I found were promises.

With respect, the Minister has had weeks and weeks to come up with this. I recall that on the Hunting Bill the Government said that this place must make decisions and that the other place up the Corridor was not worthy of being relied on to make decisions. Tonight the Minister comes to the Dispatch Box and tells us, "Actually, we will do all the decision making in the other place because this place is not worthy of making decisions." I simply say to everyone in the House tonight that I cannot support the Bill as it stands right now.

It being Seven o'clock, Mr. Deputy Speaker put the Question already proposed from the Chair, pursuant to Order [this day].

Question put, That the Bill be now read the Third time.

The House divided: Ayes 354, Noes 118.

Division number 17 Orders of the Day — Mental Capacity Bill — Schedule 3 — Property and affairs: supplementary provisions

Aye: 353 MPs

No: 117 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Abstained: 1 MP

Abstaineds: A-Z by last name

Question accordingly agreed to.

Bill read the Third time, and passed.