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Mental Health Bill [HL]

I start by wishing my noble friend Lord Hunt well in his new job. I am sorry if my departure has caused him to take a crash course on the Bill, but he is of course well versed in the NHS and I am sure that he will cope well. Just to reduce expectations around the Committee, let me reassure my noble friend that I am not about to say anything that I would not have been prepared to say if I had been in his place. I understand well the arguments against putting a set of principles into the Bill, which after all amends the 1983 Act and does not start afresh as the original draft Bill did. If at this stage we put any set of principles into the Bill, it will require the parliamentary draftsman to comb through the rest of the Bill to ensure that all its provisions are totally consistent with those principles. I detected a slight feeling among other noble Lords who have spoken that this would be a simple job to do in a couple of hours on a wet afternoon in January or February, but it is a bit more complicated than that. The longer and more complex the list of principles, the more arduous the task of ensuring the compatibility of the amending legislation with those superimposed principles, which is what they are at this stage in the legislation. This is a real practical consideration that cannot be wished way. Many people who criticised the original Bill argued for a simple amending Bill, so, to some extent, they cannot have it both ways. The Government have gone for a simple amending Bill rather than the original new blockbuster Bill starting from scratch in which the principles were to be set out. This is a different set of circumstances. An amending Bill makes it inherently more difficult to superimpose a set of guiding principles. In practice, it is easier to place those guiding principles in the statutory code of practice, which has been a little too easily dismissed in the debate so far. Those guiding principles would be in a code that has statutory force and would be taken account of by the courts. I have to let the Committee know very gently that practitioners do not assiduously study the legislation passed in this House or the other place. They tend to turn to the code of practice for their guidance, which is what it is for. So putting principles in the code of practice is not a lesser option, but is a practical option for shaping the behaviour of practitioners. From listening to the debate so far, I sense that many speakers want to shape the practice of practitioners. The code of practice is one of the places, if not the main place, where we can influence and shape the behaviour of practitioners. I understand only too well that many people would like to see guiding principles in the Bill. I can see why they want that, but I have some difficulty with the approach adopted by this amendment. I am not completely convinced that everything in it is a guiding principle. Some provisions simply urge practitioners to balance a number of potentially conflicting considerations—for example, paragraphs (d), (f) and (j)—whereas paragraph (g) is a guiding principle. The paragraphs are not consistently framed as principles; they may well be good statements of intent, but they are not necessarily guiding principles. I also have some difficulty with how one would apply paragraph (c) as currently drafted. It embodies a noble aspiration, but it is not necessarily one that is easy to apply as presently framed. I recognise that this debate shows that a considerable body of opinion is very attached to the idea of placing guiding principles in the Bill and that much of the opposition to the Bill in its present form might be abated if we could fashion a workable set of key principles to put in the Bill. If we are to move down this path—and at present I am not yet convinced that it is practical to do so—I favour having genuine principles like the headings for the guiding principles in the statutory code. Indeed, I would much prefer the Bill to limit itself to a minimum list of headings for principles that the code should spell out. They would still have the force of law, but that would make it easier to recast the code if opinions and circumstances change. I know that a number of other noble Lords have made my next point, but it is worth registering it again. We seem to be able to change our mental health legislation only about once every quarter of a century. Given the pace of change in many areas of healthcare, we may find that we are legislating here with some principles which may not stand the test of time. I would prefer the little extra flexibility that would be gained by being able to amend the code of practice. I reassure my noble friend that I am not in any way urging him to accept this amendment as it stands. I am certainly not trying to behave like many of those Permanent Secretaries in the past who, I remember only too well, suddenly became in favour of freedom of information legislation once their Civil Service pensions were secure. However, I wonder whether it would not be worth giving some urgent consideration, across all sections of the Committee, to whether agreement could be reached on a more limited set of key principles for shaping the code of practice which might go in the Bill. That seems to me to be a more practicable way forward, and it would respond to what are clearly strongly held views on this issue across the Committee. I hope that my noble friend will be able to give some sympathetic consideration to an approach of this kind so that we might then be able to move forward with this Bill in a way that is acceptable to many of those who have a great interest in it.