HOUSE OF LORDS

Delegated Powers and Regulatory Reform Committee

13th Report of Session 2004–05

Child Benefit Bill

Mental Capacity Bill – Government amendments for Report Stage

Constitutional Reform Bill [HL] – Government response and Consideration of Commons amendments

Prevention of Terrorism Bill – Government response

Ordered to be printed 9 March and published 10 March 2005

London : The Stationery Office Limited £price

HL Paper 80 The Select Committee on Delegated Powers and Regulatory Reform The Delegated Powers and Regulatory Reform Committee is appointed by the House of Lords in each session with the orders of reference “to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate level of parliamentary scrutiny; to report on documents and draft orders laid before Parliament under the Regulatory Reform Act 2001; and to perform, in respect of such documents and orders and subordinate provisions orders laid under that Act, the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments”.

Current Membership The Members of the Delegated Powers and Regulatory Reform Select Committee are: Lord Brooke of Sutton Mandeville Baroness Carnegy of Lour Lord Dahrendorf (Chairman) Lord Desai Lord Garden Lord Harrison Baroness Scott of Needham Market Lord Shaw of Northstead Lord Temple-Morris

Publications The Committee’s reports are published by The Stationery Office by Order of the House. All publications of the Committee are on the internet at http://www.parliament.uk/parliamentary_committees/dprr.cfm

General Information General information about the House of Lords and its Committees, including guidance to witnesses, details of current inquiries and forthcoming meetings is on the internet at http://www.parliament.uk/about_lords/about_lords.cfm

Contacts for the Delegated Powers and Regulatory Reform Committee If you have any queries regarding the Committee and its work, please contact the Clerk to the Delegated Powers and Regulatory Reform Committee, Delegated Legislation Office, House of Lords, London, SW1A 0PW. The telephone number is 020 7219 3103/3233. The fax number is 020 7219 2571. The Committee’s email address is [email protected]

Historical Note In February 1992, the Select Committee on the Work of the House, under the chairmanship of Lord Jellicoe, noted that “in recent years there has been considerable disquiet over the problem of wide and sometimes ill-defined order-making powers which give Ministers unlimited discretion” (Session 1991–92, HL Paper 35–I, para 133). The Jellicoe Committee recommended the establishment of a delegated powers scrutiny committee in the House of Lords which would, it suggested, “be well suited to the revising function of the House”. As a result, the Select Committee on the Scrutiny of Delegated Powers was appointed in the following session, initially as an experiment for a limited period. It was established as a sessional committee from the beginning of Session 1994–95. Also in Session 1994–95, following the passage of the Deregulation and Contracting Out Act 1994, the Committee was given the additional role of scrutinising deregulation proposals under that Act. As a result, the name of the committee was changed to the Select Committee on Delegated Powers and Deregulation. In April 2001, the Regulatory Reform Act 2001 was passed which expanded the application of the deregulation order-making power under the 1994 Act, and the Committee took on the scrutiny of regulatory reform proposals under the Act. With the passage of the 2001 Act, the Committee’s name was further amended to its present form, the Select Committee on Delegated Powers and Regulatory Reform. Thirteenth Report

CHILD BENEFIT BILL

Introduction 1. This bill alters the categories of person in respect of whom child benefit may be claimed.

The Delegated Powers 2. There are delegated powers to make regulations at clauses 1(2) and 2(2) and paragraphs 9(4)(b) and 35(4)(b) of Schedule 1. The last two are merely consequential and the power at clause 2(2) is simply an equivalent for to clause 1(2), which applies to Great Britain. The Inland Revenue has provided a delegated powers memorandum which is printed at Annex 1 to this Report. 3. We have concluded that the delegations of power by the bill are appropriate and subject to an appropriate level of parliamentary scrutiny. However, we wish to mention the power in clauses 1(2) and 2(2) in relation to entitlement to child benefit.

Entitlement to child benefit (clauses 1(2 and 2(2)) 4. The present position is that child benefit is payable in respect of someone who is— • under 16; or • under 18 (and not in full-time education), but only if conditions prescribed by regulations are satisfied; or • under 19, and in full-time education at an establishment recognised by the Secretary of State (or elsewhere if the Secretary of State recognises the establishment). 5. So the Secretary of State’s delegated powers are firstly to prescribe conditions (by negative procedure regulations) which will determine whether someone aged 16 or 17 and not in full-time education qualifies; and secondly to determine (administratively) which establishments someone aged16, 17 or 18 in full-time education must attend to qualify. 6. Under the bill, this would change, so that benefit would be payable in respect of someone who is— • under 16; or • under such age (over 16) as regulations may prescribe, but only if conditions prescribed by the regulations are satisfied. 7. So the circumstances (including age limit) in which someone over 16 qualifies are left entirely to regulations subject to negative procedure. But there is a qualification that the person must be regarded as “young”. 2 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

8. The new arrangement gives the Treasury greater flexibility than they have at present (in particular, to pay benefit for over 19s). But the power could be used either to extend or to reduce the scope of child benefit, and we note, in particular, that the bill removes from the primary legislation the principle that (subject to recognition of the relevant establishment by the Secretary of State) benefit will be payable for those under 19 in full-time education. However, we are aware that the new power mirrors precisely the power that the Treasury have for child tax credit under section 8(4) of the Tax Credits Act 2002, and we have concluded that both the delegation of power and the level of parliamentary scrutiny applied are appropriate in this case.

Conclusion 9. There is nothing in the delegated powers in this bill to which the Committee wishes to draw the attention of the House.

DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 3

MENTAL CAPACITY BILL – GOVERNMENT AMENDMENTS FOR REPORT STAGE

10. The Committee considered this bill in our 6th Report of this Session (HL Paper 31), and in our 9th Report (HL Paper 49) we published correspondence between the Baroness Ashton of Upholland, Parliamentary Under-Secretary of State at the Department for Constitutional Affairs, and the Chairman concerning the case of Bournewood. 11. We have now been invited to consider Government amendments to be taken at Report Stage. The Department for Constitutional Affairs has provided a supplementary delegated powers memorandum on the amendments which is printed at Annex 2 to this Report. One of the amendments concerns provision for protective care for certain people lacking mental capacity, and is described in the supplementary memorandum (at paragraph 2) as addressing the decision of the European Court of Human Rights in the Bournewood case. 12. The new clause “Protective care for certain persons lacking mental capacity” would enable the Secretary of State or the National Assembly for Wales to make regulations authorising the detention of persons who lack capacity, for the purpose of providing them with treatment or care in their best interests. Regulations by the Secretary of State would be subject to affirmative procedure; regulations by the Assembly would be subject to the Assembly’s own subordinate legislation procedures. 13. The possibility of power being taken in the bill was the subject of the correspondence published in our 9th Report. The Chairman mentioned, in reply to the Minister’s letter, that the Committee would expect to see full justification for any skeleton power and would be likely to recommend that it should be circumscribed on the face of the bill, especially where deprivation of liberty is involved. 14. The proposed clause contains very little by way of limitation in the bill itself. The items which are left to subordinate legislation include the following: • the circumstances in which detention is authorised; • the categories of persons lacking capacity who may be detained; • the mechanism for determining what is their best interests; • review arrangements; • appeal rights, including who may hear the appeals. 15. The Department for Constitutional Affairs, in its supplementary memorandum (at paragraph 2), describes the power as “unusually broad”. It is, in fact, little more than a skeleton power and leaves to regulations matters which, for those suffering from mental disorder, are specified in some detail in primary legislation. 16. Detention of someone who has committed no offence is a difficult and serious issue requiring the closest scrutiny, even though the purpose of the detention is to treat someone in his or her best interests. We do not consider it appropriate for subordinate legislation alone to determine the whole range of issues covered by the proposed clause. Though the power may be exercised only compatibly with the European Convention on Human Rights 4 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

(ECHR), there are likely to be a number of significant policy issues within that framework which warrant the full scrutiny and amendment process provided by a bill. 17. The Government wishes to proceed with the clause for the reasons set out in the supplementary memorandum. It is their response to a decision of the European Court of Human Rights that a person held in hospital for psychiatric treatment on the basis of the common law doctrine of necessity had been unlawfully deprived of his liberty. The Government anticipates that it will not be possible for Ministers to be in a position to consider until July 2005 new measures which comply with the ECHR. The suggestion is that the measures could be brought into force more quickly if the enabling clause were included in this bill than if primary legislation were needed at that stage. 18. Whilst we understand the Government’s wish to have the measures in place as soon as possible, it is our view that, as far as the appropriateness of the delegation of power is concerned, the new clause “Protective care for certain persons lacking mental capacity” is not an appropriate delegation and we report accordingly. Other Government amendments described in the supplementary memorandum contain nothing to which the Committee wishes to draw the attention of the House. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 5

CONSTITUTIONAL REFORM BILL [HL] – GOVERNMENT RESPONSE AND CONSIDERATION OF COMMONS AMENDMENTS 19. The Committee reported on this bill in our 10th, 12th and 23rd Reports of Session 2003-04 (HL papers 55, 62 and 134-I respectively) and in our 5th Report of this Session (HL Paper 20). The Government has responded to our recommendations in a letter from the Baroness Ashton of Upholland, Parliamentary Under-Secretary at the Department for Constitutional Affairs, which is printed at Annex 3 to this Report. 20. We have also been invited to comment on amendments which have been made in the Commons and are now before the House for consideration. The Department for Constitutional Affairs has provided a supplementary memorandum covering the amendments which is also printed at Annex 3 to this Report. Among other matters, it is explained in the memorandum that an order under new section 5A of the Justice (Northern Ireland) Act 2002 (inserted by new clause Before Clause 105 (amendment 254 on the list of Commons Amendments printed on 2 March)) was inadvertently not made subject to the intended negative procedure. We agree that the negative procedure is appropriate and note that the Government intends to rectify the omission by order under clause 115. 21. There is nothing in the amendments to which we wish to draw the attention of the House. 6 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

PREVENTION OF TERRORISM BILL – GOVERNMENT RESPONSE 22. The Committee reported on this bill in our 12th Report of this Session (HL Paper 63). The Government has responded to our recommendation, by way of a letter from the Lord Falconer of Thoroton, Secretary of State for Constitutional Affairs and Lord Chancellor, to the Chairman. The letter, along with a letter in reply from the Chairman to Lord Falconer, is printed at Annex 4 to this Report. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 7

ANNEX 1: CHILD BENEFIT BILL

Memorandum by the Inland Revenue

Introduction 1. This memorandum identifies provisions for delegated legislation in the Child Benefit Bill 2005. The delegated powers are to be exercised by statutory instrument by HM Treasury. 2. For each power exercisable by statutory instrument, the memorandum explains: • the purpose of the delegated power; • why matters are to be left to delegated legislation • the way in which it is proposed to use the power; and • the procedure selected for each power and why it has been chosen 3. The descriptions of the powers are arranged in the order that the powers appear in the Bill. 4. The Bill, as brought from the Commons, provides for all the powers to make delegated legislation to be exercised by HM Treasury.

Previous consideration 5. To examine the role of financial support in achieving the Government’s skills objectives, the Chancellor of the Exchequer announced in Budget 2003 a review of the financial support and incentives for 16–19 year olds. The Review’s report Supporting young people to achieve: towards a new deal for skills was published alongside Budget 2004. The report sets out the Government’s long-term vision for financial support for 16–19 year olds, and identifies several short-term steps to deal with anomalies and perverse incentives created by the current support schemes. 6. At the centre of these short-term measures is the proposal to extend child benefit, child tax credit and income support to unwaged trainees, to support young people’s choices between education and unwaged work-based learning by providing the same package of financial support for both learning routes. The Government also proposes to reform the child benefit, child tax credit and income support rules to ensure that young people still in non-advanced education on their 19th birthday are supported until they finish their course, up to a new limit of age 20. 7. The Review report launched a public consultation on the Government’s short and long- term proposals. Over fifty organisations and individuals submitted written responses and consultation seminars were held with a wide range of employers, voluntary and community sector organisations and learning providers. HM Treasury also commissioned direct consultation with parents and nearly 600 young people. 8. The results reaffirm the findings of the original review and provide strong support for the proposals set out in Supporting young people to achieve. In particular there was wide support for the Government’s commitment to remove the disparities in financial support for education and vocational training, with many stakeholders highlighting concerns about the current lack of family support available to unwaged trainees, the low level of support available through the Minimum Training Allowance in England, and the impact on the incentives of young people from low-income households or living independently to take up training places. 8 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

9. The Child Benefit Bill was introduced into the House of Commons on 13th December 2004. It had its Second Reading on 12 January 2005. The Bill was considered by Standing Committee F on 18 January 2005. Consideration and Third Reading were on 3 February 2005 and on 4 February 2005, the Bill was brought before the Lords.

The Delegation of powers 10. The Bill is primarily an enabling measure and as such the substance of the reform is to be set out in regulations made by HM Treasury. Regulations made under the Bill’s powers are subject to the negative resolution procedure. This is the usual procedure for secondary legislation made under Social Security Bills because it delivers a flexible system that can then respond effectively to changes in the future. It is also the procedure applied by the Tax Credits Act in respect of the equivalent provisions for child tax credit purposes. 11. Under the negative resolution procedure, regulations are tabled and can be prayed against by a member of the House who wishes them to be subject to formal Parliamentary scrutiny. 12. Defining a “qualifying young person” in regulations rather than in primary legislation will provide greater flexibility in the future, allowing changes to be made to the regulations where, for example, there are curriculum developments and/or changes in future training provision. For example, if the Learning and Skills Council for England or one of the devolved administrations decides to rename their training programmes or introduce new schemes, the Government would be able to quickly ensure that the financial support arrangements reflect these changes without time intensive recourse to primary legislation. 13. The Government has been consulting on what worthwhile activities in addition to formal education and training should be considered under the system of financial support post 16 years old and such a regime would allow a response to this. The Government believes that it is appropriate to create a readily responsive framework on the face of the Social Security Contributions and Benefits Act in this instance, with the detail added through regulations. Moreover, this approach will align the child benefit measure with the equivalent child tax credit measure in the Tax Credits Act 2002, helping to ensure greater consistency in the criteria for each. It should also be noted that regulations are routinely used to define eligibility throughout the Social Security legislation. 14. HM Treasury published a set of draft regulations on 10 January 2005 (available from the Library of the House and the HM Treasury website), in order to indicate how it intends to use the powers provided by the Bill. The draft regulations provide for the current scope of child benefit entitlement in respect of 16-18 year olds in full-time, non- advanced education to be extended to include young people on “approved training” that is not provided through a contract of employment. “Approved training” is defined by reference to the named programmes arranged by the Government; the intention is to include all Government-arranged schemes expected to include unwaged participants from April 2006. The regulations also provide for the age cut-off to be extended to age 20 where young people start a course of learning before they attain age 19.

OVERVIEW OF THE BILL

Purpose of the bill 15. Currently child benefit is payable only in respect of a person who can be treated as a “child”, which includes all children under 16 and also those aged under 19 who are in full-time, non-advanced education. The Bill provides for child benefit to be payable for a “child” and for a “qualifying young person” and restructures the existing definition of a DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 9

“child” to provide for the circumstances where a young person who has attained age 16 is to be treated as a “qualifying young person”, thus aligning child benefit with child tax credit. This reform will enable implementation of the Government’s intention to extend child benefit to unwaged trainees and to 19 year olds completing a course started before the age of 19. It will enable the package of support now available to families with young people on courses of full–time, non advanced education to be available where a young person is following a course of unwaged training and those who take longer to finish their courses.

STRUCTURE OF THE BILL 16. The Child Benefit Bill is made up of seven Clauses and is supported by two Schedules. The Bill applies both to Great Britain and Northern Ireland. It amends the provisions of the Social Security Contributions and Benefits Act 1992 and the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

Persons for whom child benefit may be claimed 17. Clause 1, subsection 1 amends Section 141 of the Social Security Contributions and Benefits Act 1992. The Bill changes the description in section 141 of those entitled to child benefit by inserting “qualifying young person”. A person will now be treated as a child if he has not attained age 16. Once a person has attained the age of 16, continuing entitlement to child benefit will be dependent on the person being treated as a qualifying child. 18. Clause 1, subsection 2 further provides for the amendment of section 142 of the Social Security Contributions and Benefits Act. Under the Clause, a person will be treated as a qualifying young person if he has not attained a prescribed age greater than 16 and also satisfies further prescribed conditions. HM Treasury is given the power to prescribe through regulations the age at which a qualifying person will cease to be so treated and the further conditions a person will need to satisfy to be a qualifying young person for the purposes of the Act. 19. Clause 1, subsection 3 provides for amendments set out in Part 1 of Schedule 1 of the Bill to take effect. For the most part these arise as a consequence of making the distinction introduced in Clause 1(2) between a child and a qualifying person. 20. Clause 2 provides for the words “qualifying young person” to be also inserted in to section 137 and 138 of the Social Security Contributions and Benefits (Northern Ireland) Act. This Clause has the same effect as the changes in Clause 1 but serves to extend the changes made by this Act to Northern Ireland. 21. Child Benefit and Guardians Allowance are reserved matters under section 4 and Schedule 3 to the Northern Ireland Act 1998. However the consequential amendments set out in Schedule 1 Part 2 to the Bill include amendments in respect of provisions in the Social Security Contributions and Benefits (Northern Ireland) Act 1992 that are transferred matters. In view of the suspension of the Northern Ireland Assembly, the Minister of State at the Northern Office has consented to the amendment of such provision by means of the Child Benefit Bill.

Repeals 22. Clause 3 provides for the repeals of legislation set out in Parts 1 and 2 of Schedule 2 of the Bill. 10 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

Financial Provision 23. Clause 4 provides for the financing of the extension of child benefit to be met by Votes.

Extent 24. Clause 5 provides for the territorial extent of the Bill

Commencement 25. Clause 6, subsection 2 provides that the Act will come in to force on 10th April 2006 26. Clause 6, subsection 1 provides for HM Treasury to make and lay regulations before Parliament in advance of the Act coming in to force. 27. Clause 7 provides that the Act will be known as the Child Benefit Act 2005.

Schedules 28. Schedule 1 deals with the amendments necessary to the Social Security Contributions and Benefits Act 1992 and Social Security Contributions and Benefits Act (Northern Ireland) 1992, Social Security Administration Act 1992 and Social Security Administration (Northern Ireland) Act 1992 as well as Social Security Act 1998 and Social Security (Northern Ireland) Order 1992 with the creation of a “qualifying young person” for child benefit purposes. It also extends the use of “qualifying young person” to include widowed mother’s allowance; widowed parent’s allowance and guardian’s allowance and increases of maternity allowance, and industrial injuries benefits where entitlement is conditional upon the person being also entitled to child benefit. Consequently, where entitlement to child benefit is extended by virtue of regulations made under the powers in clause 1(2) of the Bill, the period of entitlement to these other benefits will also be extended. 29. Schedule 2 covers the Repeal of parts of the Social Security Contributions and Benefits Act 1992, Tax Credits Act 2002, Social Security Contributions and Benefits (Northern Ireland) Act 1992 and Social Security Administration (Northern Ireland) Act 1992 that are needed to give the relevant sections of the pieces of legislation grammatical meaning in light of the insertion of “qualifying young person”.

COMMENTARY ON THE DELEGATED POWERS

Persons for whom child benefit may be claimed 30. Clause 1, subsection 2 (a) provides for HM Treasury to prescribe the age, greater than 16, at which a person will cease to be treated as a qualifying young person. This power is necessary to provide an age cut-off in respect of qualifying young people following courses of full-time non-advanced education or approved training. Without such a cut-off child benefit would otherwise remain in payment until such time as the young person ceased to satisfy the additional conditions for being treated as a qualifying young person, or the person receiving child benefit could no longer be treated as responsible for the young person or the young person fell to be excluded on other grounds. Regulations laid before Parliament will be subject to the negative resolution procedure. 31. Clause 1, subsection 2 (b) provides for HM Treasury to lay regulations prescribing further conditions beyond age, that a person needs to meet to be considered a qualifying young person. Such power is required, as a “qualifying young person” is not otherwise defined by the Bill. This power is necessary to allow flexibility in the scope of the DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 11 interpretation of “qualifying young person” to allow for the addition of new groups and to allow for changes in the curriculum and new initiatives that arise.

Commencement 32. Clause 6 confers the power on HM Treasury to lay regulations, made under Clauses 1(2) and 2(2), before Parliament in advance of the Act coming in to force on 10th April 2006. This power is necessary to enable payment of child benefit in respect of a qualifying young person from the date of commencement of the Act. Without such a power, HM Treasury would not be able to lay the regulations required to define a qualifying young person until the Act came into force and consequently there would be no basis for identifying a qualifying young person for the period of 21 days following the Act coming into force. 5 February 2005

12 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

ANNEX 2: MENTAL CAPACITY BILL – GOVERNMENT AMENDMENTS FOR REPORT STAGE

Supplementary memorandum by the Department for Constitutional Affairs 1. This annex contains details of Government amendments to the Mental Capacity Bill at Lords Report, where those amendments affect the powers contained in the Bill. There are four significant amendments outlined in sections A-D below.

A. New clause (After Clause 59 as tabled on 22 February): Protective care for certain people lacking mental capacity Power conferred on: In England the Secretary of State (for Health) and in Wales the National Assembly for Wales Power exercisable by: Statutory Instrument Parliamentary procedure: Affirmative resolution

Statutory instrument making powers of the appropriate authority exercised in respect of Wales will be subject to the subordinate legislation procedures of the National Assembly for Wales.

Commentary 2. This clause provides for an unusually broad regulation making power in the Mental Capacity Bill for the purposes of addressing the decision of the European Court of Human Rights (ECtHR) Bournewood [HLv UK]. 3. The judgment made clear that where actions amounting to deprivation of liberty of a person who lacks capacity and is of unsound mind are taken for the care and treatment of that person and in their best interests, under the common law of necessity, this use of the common law, plus the availability of judicial review to challenge the deprivation, are not sufficient to prevent a breach of article 5 ECHR without the development of further safeguards. There are cases where it may be in the best interests of someone who lacks capacity to be detained, outside of the Mental Health legislation, but going beyond the power to restrict people’s liberty as set out in clause 6. 4. The Government accepted that it needs to establish new procedural safeguards for those incapacitated patients with mental disorders who are not compulsorily detained under mental health legislation but who are deprived of their liberty for the purposes of care or treatment. This is not a simple task. The ECtHR has made it clear that the difference between restriction and deprivation of liberty is one of fact and degree. In finding solutions, the Government needs to balance the need for proper procedural safeguards against the importance of not imposing labels on people, or of setting up bureaucratic structures that get in the way of proper flexible care based on the best interests of each individual. 5. The Government is therefore committed to bring forward proposals for new safeguards as soon as possible. It is also committed to undertake a wide-ranging formal consultation process with interested parties including representative groups, the NHS and local authorities. The aim is to ensure safeguards which are effective, proportionate and deliverable in practice. 6. In particular, it will be necessary to carry out a consultation exercise to confirm the groups in respect of whom safeguards would be needed. We are clear any solution would need to apply to the hospital patients in an analogous position to the patient at the centre DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 13 of the Bournewood case. But there are other groups of people, who have mental disorder or lack capacity, for whom safeguards may be necessary. The inclusion or not of these groups makes a very significant difference in numbers of people affected, the range of bodies affected (e.g. NHS, local authorities) and the type of procedures that could be prescribed. Subject to the outcome of the consultation, there may in fact be a variety of solutions for different client groups. 7. More information is needed about the circumstances that might amount to a deprivation of liberty. The ECtHR judgment talks about “complete control” amounting to deprivation of liberty; we intend to use the consultation process to help clarify what this means in practice. 8. The Government now plans to launch the consultation in mid-March. Allowing 12 weeks for consultation would allow Ministers to consider measures which would meet the ECHR concerns by July. Therefore, the timing of the consultation process is such that it would not be possible to include full details of the necessary procedural safeguards in the Mental Capacity Bill. 9. Many concerns have been expressed that we should take the opportunity of the Mental Capacity Bill to take the legislative powers necessary to deal with the Bournewood problem. These include the Joint Scrutiny Committee which considered the draft Mental Incapacity Bill in 2003. More recently, the Joint Committee on Human Rights urged the Government “in recognition of the urgency of the issue to the many informal patients who are currently without procedural protections, to bring forward proposals for filling the Bournewood gap during the passage of the present Bill.”(para 4.12 JCHR first Progress Report, Jan 2005) The Bournewood “gap” has also been raised during earlier debate on the Mental Capacity Bill. At Commons Committee stage, many Members raised the issue of the Bournewood “gap”. Of the 26 Peers who spoke at Lords Second Reading, 22 referred to Bournewood. Similarly at Lords Committee Stage, many peers discussed the importance of responding urgently to the Bournewood judgment. 10. If the capacity to create safeguards relevant to the judgment is not included in the Mental Capacity Bill, there may be some delay in finding another appropriate legislative vehicle for such regulations. Alternatives might be the proposed Mental Health Bill (this route is likely to require a change of scope); or a freestanding Bill or other appropriate legislative vehicle should one arise. The risk of delay in resolving the ECHR breach will be less if powers are taken in the Mental Capacity Bill. 11. The Government has therefore sought to include a broad regulation-making power in the Bill which will enable regulations to flesh out the detail of the safeguards following the conclusion of the consultation process. 12. This power will be a free standing section of the Bill, enabling commencement to occur in advance of the rest of the Mental Capacity Bill as soon as possible. Clearly, these regulations will have to be compatible with the Government’s obligations under the Human Rights Act.

Subsection (1) 13. Subsection (1) sets out that the appropriate authority may make regulations which authorise the detention (which is defined to include deprivation of liberty under Article 5(1) of the ECHR) for the purposes of care or treatment of people who lack capacity where it is in their best interests. It allows for regulations to set out descriptions of the types of people with incapacity to whom this will apply and also the circumstances in which it will apply, following the outcome of the consultation process. 14 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

Subsection (2) 14. Subsection (2) provides that a person detained in accordance with the regulations is in “protective care”.

Subsection (3) 15. Subsection (3) sets out provisions that may in particular be included in the regulations. These cover areas which are likely to be included in the consultation process. It is not possible to be more specific on the face of the Bill, without pre-empting the outcome of the consultation. The areas to be covered in regulations include: (a) Defining the premises in which protective care will be provided – the Government envisages that the kinds of premises where patients might be kept in protective care by NHS bodies and local authorities will include, for example, hospitals. Following consultation, it may also conclude that this needs to include other types of premises, such as care homes. (b) Defining the conditions which must be complied with in relation to protective care - this might include, for example the formal procedures to be followed on admission, including any statutory record keeping, consultation or notification. (c) Defining the safeguards to be provided –this is a further wide power which will enable the Government to regulate for protections to be provided which will prevent detention being in breach of article 5 ECHR. It may include, for example, the qualifications of those who are concerned in the considerations as to the patient’s welfare and detention, or care plans. The Government does not wish to specify any particular safeguards on the face of the Bill but prefers to wait for the outcome of the consultation. (d) A review process – early discussions with stakeholders have indicated that reviews are seen as an important safeguard. The Government wants to be able to set out in regulations what any such review process would involve, who would conduct it, and the timescales that would apply. (e) Referrals to a court or tribunal – The Government wants to be able to set out in regulations the circumstances when it is possible or obligatory to refer a case for consideration by a court or tribunal. This power allows the Government to defer taking a definitive view as to the most appropriate judicial forum for questions of detention in protective care until it has properly consulted. (f) Discharge – The Government proposes to take the power to make regulations about the circumstances in which protective care may come to an end. Again, it does not wish to prejudge the outcome of the consultation by specifying these in the Bill. (g) Powers to be conferred on persons – this gives the Government the power to allow people such as family members, carers, or advocates, to exercise such powers as are considered necessary or appropriate after consultation. (h) Right of appeal – this will allow the Government to confer on patients (and other people) the right to appeal particular decisions. (i) Procedures on appeal - if a court or tribunal is to be involved, it will be necessary to define its powers and functions. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 15

Subsection (4) 16. Subsection (4)(a) provides a power to make regulations similar to section 139 of the Mental Health Act 1983. The aim of these regulations would be to provide a defence for individuals to prevent them being liable in criminal or civil proceedings in respect of acts done in pursuance of protective care unless acting in bad faith or without reasonable care. 17. Subsection 4(b) provides for an ability in the regulations under subsection (3) to disapply or modify other provisions of the Bill. For example, we may want to set out what is meant by best interests, for which purpose we may adopt much of what is in clause 4 but it may need adaptation to make it work in the context. The provision gives the flexibility we may need if the protective care provisions are commenced ahead of the rest of the Bill.

Subsection (5) 18. Subsection (5) defines the “appropriate authority” who may make regulations under this clause. The powers placed on the “appropriate authorities” are conferred for England on the Secretary of State (for Health) and for Wales, on the National Assembly for Wales.

Subsection (6) 19. This defines “detention” as including any deprivation of liberty within the meaning of Article 5(1) of the European Convention on Human Rights. In this way the Bill is capable of covering all actions short of detention under clause 6 and all actions which amount to detention under protective care.

B. Mental Health Act 1983 – (2nd amendment under Schedule 6 as tabled on 22 February) Power conferred on: In England the Secretary of State (for Health) and in Wales the National Assembly for Wales Power exercisable by: Statutory Instrument Parliamentary procedure: Negative resolution

Commentary 20. This amendment makes consequential amendments to sections 3 and 20 of the Mental Health Act 1983 (“the 1983 Act”). It allows circumstances to be prescribed in which the availability of protective care for a patient may or must be ignored in determining whether a person is to be detained (or continue to be detained) under section 3 of the 1983 Act (admission for treatment). 21. The amendment is necessary because an application for detention in hospital under section 3 of the 1983 Act for people with a mental disorder can only be made where treatment is necessary and cannot be provided unless the patient is detained under that section. 22. The existence of the new protective care regime created by the New Clause after Clause 59 is likely to provide a means of treatment under detention for people who lack capacity and have a mental disorder, in prescribed circumstances. Regulations in relation to protective care may, depending on the outcome of the consultation in relation to the Bournewood case, exclude some cases where section 3 would be available from the ambit of protective care. But we may also want to enable protective care and section 3 to be available as alternatives for practitioners to consider in individual cases. It is in order to 16 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE achieve the availability of protective care as an alternative that this regulation making power has been taken in relation to detention under section 3 and the equivalent provision on continuation of detention, section 20. 23. It is in the form of a regulation making power, so that final decisions can be taken once the full details of protective care are decided after consultation. Like other regulations under the 1983 Act, these regulations would be subject to the negative resolution procedure (although they will, of course, only be needed once protective care has itself been established by regulations subject to the affirmative procedure.)

C. New clause (After Clause 33 as tabled on 23 February): Loss of capacity during research project Power conferred on In England Secretary of State (for Health) and in Wales the National Assembly for Wales Power exercisable by: Statutory Instrument Parliamentary procedure: Affirmative resolution

Statutory instrument making powers of the appropriate authority exercised in respect of Wales will be subject to the subordinate legislation procedures of the National Assembly for Wales.

Commentary 24. Clauses 30–33 relate to research involving those who lack capacity to consent. They make provision for intrusive research to be lawfully carried out on, or in relation to a person who lacks capacity, where the research is part of a research project approved by an appropriate body and it is carried out in accordance with the conditions set out in clauses 32 and 33. 25. The regulation-making power in subsection (2) of the new clause after clause 33 allows for regulations made by the appropriate authority to prescribe the requirements that have to be satisfied as regards a person who consents to join a project before the Bill comes into effect but loses capacity to consent to continue before the end of the project. They may prescribe the types of project, the information and material which is used and the safeguards. 26. Subsection (3) provides that regulations may make provisions which require the researchers to have regard to safeguards similar to those set out in sections 31, 32 and 33. We envisage that the regulations will replicate many of the safeguards set out in clauses 32 and 33. 27. These regulations are necessary to smooth the transition to the protections afforded under the Bill and to avoid stopping ongoing research. This will not diminish the protections afforded to the person without capacity, and indeed would more readily respect their previous wishes and feelings (as expressed in their original consent to participate). 28. Clause 61 clarifies that these regulations will be subject to the affirmative resolution procedure, to ensure that Parliament will be able to fully consider them. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 17

D. Clause 61 Amendments [5] and [6] as tabled on 23 February: Power conferred on: The Lord Chancellor and the Secretary of State (for Health) in relation to regulations relating to loss of capacity during research project and protective care for certain people lacking mental capacity Power exercisable by: Statutory Instrument Parliamentary Procedure: Affirmative resolution

Statutory instrument making powers of the appropriate authority exercised in respect of Wales will be subject to the subordinate legislation procedures of the National Assembly for Wales.

Commentary 29. Clause 61 refers to the various powers under the Act to make secondary legislation and specifies which procedure will apply. In response to the Delegated Powers Committee’s report regulations about the private international law of England and Wales in relation to the protection of adults (para (33(1)(b) of Schedule 3) have been changed to be subject to the affirmative resolution procedure. March 2005 18 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

ANNEX 3: CONSTITUTIONAL REFORM BILL [HL] – GOVERNMENT RESPONSE AND CONSIDERATION OF COMMONS AMENDMENTS

Letter from Baroness Ashton of Upholland, Parliamentary Under Secretary of State at the Department for Constitutional Affairs, to the Chairman As promised in the House on 20 December, I am writing in response to the 5th Report of the Delegated Powers and Regulatory Reform Committee on the Constitutional Reform Bill. In its Report the Committee set out its observations on clause 16 of the Bill, which provides the power by order to transfer, modify or abolish a function of the Lord Chancellor. The Committee observed that a) the power is not limited as to the time of its exercise, b) it could [therefore] be used in the future for purposes other than those arising out of the current redistribution of Lord Chancellor functions, and c) although the affirmative resolution procedure would apply to an order abolishing an existing function conferred by an Act, the negative resolution procedure would apply to the abolition of functions conferred by other instruments (including Statutory Instruments themselves subject to affirmative resolution). The Committee suggested the House might wish to invite the Government to explain further why the power could not have been more closely circumscribed. As you know, clause 16 replaced a clause which had the same purpose but which was predicated on abolition rather than reform of the office of Lord Chancellor and which was therefore defective following the decision to amend the Bill in the Lords to retain the office. The Delegated Powers Committee had sight of this earlier clause when it first considered the Bill. I gave an assurance to the House [Hansard, column 1545, 20 December 2004] that the Government’s intention in taking this power is to give effect to the reforms of the office of Lord Chancellor provided for in the Bill, in relation to functions of the Lord Chancellor that are not dealt with in the Bill. The power will be used principally to apply Concordat principles to Lord Chancellor functions in primary legislation enacted since the introduction of the Bill, and in secondary legislation, and to amend prerogative instruments and charters of private institutions where they have requested abolition or modification of Lord Chancellor functions in relation to them. I have considered how we could meet the Committee’s concerns. However, it is not possible to define the purpose any more tightly without setting the Concordat on a statutory footing, a considerable amount of work in itself, and not something that has been called for at any stage of the debates on the Bill. A time limit would be a means of further circumscribing the power. However, since the aim is to ensure that the Concordat can be implemented fully, it remains important to be able in the future to capture any missed functions which come to light. I think it therefore unwise to place a time limit on the use of the clause, in case circumstances arise where we are unable to give effect to the Concordat in relation to that function. The exercise of the power in clause 16 will be subject to parliamentary scrutiny and in many instances to affirmative resolution. I have been happy to take on board the suggestion that the affirmative resolution procedure should apply where it is proposed to abolish a Lord Chancellor function contained in an instrument itself subject to affirmative resolution, and I attach the text of the amendment, which is to clause 116 which regulates how the Lord Chancellor will exercise the order-making power in clause 16, tabled in the Other Place (Annex A [not printed]). 24 February 2005 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 19

Supplementary memorandum by the Department for Constitutional Affairs

Introduction 1. This supplementary memorandum brings to the attention of the Committee a number of amendments that were made to the Bill since it was introduced to the House of Commons on 21 December 2004. 2. In particular, the Government wishes to bring to the Committee’s notice the provisions in relation to Northern Ireland under new clause 254, at paragraphs 5 to 8 of this memorandum. This section explains that, in its present form, the power in 254 is not subject to the negative resolution procedure, as intended. This is a regrettable omission and the Government intends to bring forward an order under clause 115, subject to affirmative resolution, to amend the Justice (Northern Ireland) 2002 Act so as to provide that the power in new section 5A(6) is subject to the negative resolution procedure. 3. The Committee will already be aware that on 24 February 2005, Baroness Ashton wrote to Lord Dahrendorf in relation to the amendment to be made in the Commons to clause 116, orders and regulations. As a detailed explanation of the amendment was made in the letter, and the Committee already has seen the text of the amendment, it has not been included in this memorandum. 4. To note that where amendment numbers have been used in this document, they correspond to numbers used in the House of Lords paper on Commons amendments, printed on 2 March.

Disclosure of information to the Northern Ireland Judicial Appointments Commission 5. Firstly, we wish to draw the attention of the Committee to 254, which inserts a new section 5A into the Justice (Northern Ireland) Act 2002. The text of this amendment is available at Annex A, page 6. 6. New section 5A provides that information held by ‘permitted persons’ may be disclosed to the Northern Ireland Judicial Appointments Commission for the purposes of making a selection to listed judicial offices under section 5 of the 2002 Act. New section 5A(6) provides that the Lord Chancellor may, by order, designate other persons who exercise functions, which he considers are of a public nature, as ‘permitted persons’. 7. We now realise that 254 does not achieve properly its intended effect in that it does not subject the power in new section 5A(6) to Parliamentary scrutiny. Section 90 of the 2002 Act provides the parliamentary procedures to which delegated legislation made under that Act is subject. Amendment 254 does not, however, amend section 90 to provide that the power contained in new section 5A(6) is subject to Parliamentary control. 8. The corresponding power to make orders under clause 93(6) of the Bill in respect of England and Wales is subject to the negative resolution procedure. We consider that this is the appropriate form of Parliamentary scrutiny for a power of this kind, and propose to apply it to the order-making power in new section 5A(6) of the 2002 Act. 9. The Department has always envisaged the need to make an order under clause 115 (supplementary provision) of the Bill (following ) to update references to current legislation, and that opportunity will be taken to amend the 2002 Act so as to provide that the power in new section 5A(6) is subject to the negative resolution procedure. This amending order will be subject to the affirmative resolution procedure. We are satisfied that clause 115 can be used to amend the 2002 Act in this way because 20 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE the amendment would be supplementary or consequential and expedient in consequence of, or for giving full effect to, a provision of the Bill.

Clause 13, New Schedule 450 and Schedule 4 10. Clause 13 of the Bill has been amended to provide for the introduction of a new Schedule (450), which provides for amendments to Northern Ireland legislation dealing with functions of the Lord Chancellor, which relate to the judiciary and the organisation of the courts. 11. Schedule 4 of the Bill has also been amended to introduce provision, and to amend provision already included in the Schedule, to provide for the exercise of the Lord Chancellor’s judiciary related functions in Northern Ireland under legislation with UK wide extent. 12. Both the new Schedule and the amendments to Schedule 4 provide for the transfer of various functions, which the Lord Chancellor exercises in respect of Northern Ireland, and in some cases make those functions subject to prior agreement or consultation of the Lord Chief Justice of Northern Ireland. Some of the functions, thus, transferred do involve the exercise of delegated powers. In none of these cases, however, is the level or type of parliamentary control over the exercise of the power changed.

Renaming the Supreme Court 13. The House of Lords Select Committee on the Constitutional Reform Bill recommended that: “The Supreme Court of England and Wales and the Supreme Court of Judicature of Northern Ireland should be renamed and, where necessary to avoid confusion, the short titles of legislation relating to those courts should also be changed”.1 A group of amendments made in Commons Committee gives effect to that recommendation, and includes a provision making a tightly circumscribed extension to a delegated power in the Bill (in clause 115). 14. The principal provisions giving effect to the renaming recommendation are new clause 85 and new Schedule 487. The new clause provides for the Supreme Courts of England and Wales and Northern Ireland, and the Northern Ireland Supreme Court Rules Committee, to be respectively renamed, and for references to those bodies in other legislation and in any “instrument or other document” (so as to cover, for example, court forms) to have effect as references to those bodies as renamed. The new Schedule additionally provides for direct textual amendments of the numerous (more than 700) references in other legislation to the “Supreme Court”. 15. Amendment 269 supplements these provisions by amending clause 115(2) to ensure that the power to make transitional, incidental and consequential provision will allow for amendments to be made to carry through the renaming in other legislation, including legislation made after the Bill receives Royal Assent. That will, in particular, enable references in Acts passed and statutory instruments made in the relatively extended period between Royal Assent and commencement of the Supreme Court (expected to be in 2008) to be corrected with effect from commencement by a single statutory instrument or group of instruments, without the need for individual provision in each such Act or statutory instrument.

1 See paragraphs 152 and 153, page 44 of the House of Lords Select Committee’s Report on the Constitutional Reform Bill. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 21

16. This extension of the power is explicitly limited to changes in consequence of the new clause. Since the new clause is itself limited to renaming, the extension cannot cover the making of any substantive change, only changes necessary to carry through the renaming. In particular, the power will enable a more tailored approach to the correction of references which are less susceptible to a global “substitution” approach, such as references to “Supreme Court” which occur in provisions extending to Northern Ireland as well as to England and Wales and have effect by virtue of the Interpretation Act 1978 as references both to the Supreme Court of England and Wales and the Supreme Court of Judicature of Northern Ireland. Since the amendment extends the existing power, the provisions as to Parliamentary scrutiny apply as for the existing power; and so, where such references are in primary legislation, correction of them will require a statutory instrument subject to affirmative resolution procedure.

Disciplinary regulations 17. We wish also to draw the attention of the Committee to two new clauses, 244 and 245, which extend the Lord Chief Justice’s power to make disciplinary regulations, by providing for him to make regulations providing for disciplinary procedures to be suitably modified in relation to judicial office holders listed in Schedule 12 who sit wholly or mainly in or in Northern Ireland (such as members of certain non-devolved tribunals with UK-wide jurisdiction) and in particular for his own role to be taken by the Lord President of the Court of Session or the Lord Chief Justice of Northern Ireland as appropriate. Such regulations may only be made with the agreement of the Lord Chancellor and, either, the Lord President or the Lord Chief Justice of Northern Ireland. Regulations made by the Lord Chief Justice under these new provisions will be made in the form of a statutory instrument and will be subject to the negative resolution procedure. 22 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE

ANNEX 4: PREVENTION OF TERRORISM BILL – GOVERNMENT RESPONSE

Letter from Lord Falconer of Thoroton, Secretary of State for Constitutional Affairs and Lord Chancellor, to the Chairman I have seen a copy of your report on the Prevention of Terrorism Bill. I have noted your comments about the Lord Chancellor making the first set of rules of court for control order proceedings and the recommendation you made that the rules should be subject to affirmative procedure. It is essential that I make the first set of rules for England and Wales and Northern Ireland because there is not sufficient time for the respective Rule Committees to do so in readiness for 14 March when the provisions in the Prevention of Terrorism Bill need to come into effect. (Those Rule Committees are: the Civil Procedure Rule Committee, which makes rules for the High Court of England and Wales and the Northern Ireland supreme Court Rules Committee, which makes rules of court for the High Court in Northern Ireland.) As you will have noted, I am required to consult with the Lord Chief Justices for England and Wales and Northern Ireland before they are made. There is no similar issue in relation to Scotland, because the Lord President is able to make rules very quickly – and whilst these are subject to parliamentary scrutiny, they are not subject to any formal parliamentary approval. We have therefore not sought to impose rules on the Court of Session, even for the initial set of rules. Those will be made in the normal way. Turning to the recommendation made in your report, may I ask you to consider this point further. Whenever possible, I like to follow the recommendations made by the Committee, but this particular recommendation causes us concern for the following reasons: 1. Rules of court are normally made by negative resolution (and, for Scotland are not subject to any Parliamentary procedure). 2. The rules of court need to be in force for one day after the Act comes into force. We cannot wait for affirmative resolution debates in both Houses within 40 days before the rules come into effect in the conventional fashion. 3. The Prevention of Terrorism Bill will only just have passed through both Houses of Parliament. The issues in the bill will have been given a significant airing. For instance, the procedures relate to the non-disclosure by the Secretary of State of sensitive material which has attracted controversy in relation to the SIAC procedures. Parliament will, accordingly, have an opportunity to debate the application of those procedures to control order proceedings during the passage of the bill itself. 4. The rules of court for control order proceedings will make rules providing for a procedure very similar to the SIAC rules of procedure. Whilst that procedure was novel when SIAC was first set up, the use of special advocates and hearing evidence in closed session has now become established for proceedings of this nature, and the courts have held that procedure to be compliant with Article 6 of the ECHR.

If we had to introduce an affirmative resolution procedure it should only be for the first set of rules of court. Otherwise it would undermine the workings of the independent committees who would subsequently make rule changes in the usual manner. In particular, any affirmative resolution procedure would need to be adapted for the purposes of this bill, so the rules of court would still come into immediate effect. I hope the Committee will reflect further on its recommendation in light of our concern. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 23

I am placing copies of this letter in the House of Lords library. 3 March 2005

Letter from the Chairman to Lord Falconer of Thoroton, Secretary of State for Constitutional Affairs and Lord Chancellor Thank you for your letter of 3 March in which you set out your response to the Committee’s report on the Prevention of Terrorism Bill (12th Report, HL Paper 63). The Committee considered your letter at a meeting this morning. You will recall that, during the report stage in the House of Lords yesterday, we had a brief exchange (at col 702) about the role of the Committee and I welcome your response to the concern I raised. The Committee has asked me however to write to you to emphasise the importance of setting this matter out clearly. In your letter, having provided reasons why you did not share the Committee’s view in respect of our recommendation, you asked the Committee to consider the point further and you concluded your letter with the hope that “the Committee will reflect further on its recommendation in light of our concern”. The Committee did not do this. Our reasons are as follows. The Committee is an advisory committee appointed by the House of Lords to assist the House in its scrutiny of primary legislation. The Committee reports to the House and, where the Government disagrees with a recommendation by the Committee, it is for the House as a whole to decide, in the light of the Committee’s report and the Government’s response to it, whether a recommendation by the Committee should be adopted. I hope that setting this matter out in this way will prevent any further confusion. 9 March 2005