Mental Health Bill [HL]

My Lords, I am very grateful to the noble Earl for introducing his amendment. My background briefing says that this is a very clever amendment, so I pay tribute to him for that. I, too, was struck by what the noble and learned Baroness, Lady Hale, said in responding to this. The critical part of what she said was about being practical and effective in what we did in terms of the amendment. I thought very carefully about the issue that the noble Earl has rightly raised. I reiterate what I said in Committee: I have no difficulty with the principle behind what the noble Earl is seeking to achieve; the discussion between us is how we get there. There is a difficulty in placing this in the Bill, because we run into two possible problems. One is the inflexibility that primary legislation can offer us sometimes, which could be a difficulty. Secondly, I hope that the amendment is unnecessary, for two reasons. First, in the draft code of practice we have been very clear. It states: "““If the patient’s case has not already been considered by the MHRT—or a significant period has passed since that hearing—Hospital Managers should consider making a request as soon as the detention is extended. A failure to do so could result in a breach of the patient’s rights under the Human Rights Act 1998””." That raises my second point, which is that under either the ECHR or the Human Rights Act we have very clear guidance and understanding in the public bodies that they have a right and a duty to comply with the Human Rights Act. I am happy to commit to look again at the code of practice to see whether we can strengthen this aspect of it to address the reasonable concerns expressed by the noble Earl to make sure that this actually happens when it should happen. I hope that in so doing, although I am not committing to putting this in the Bill, I will be able to demonstrate as the Bill passes to another place that I have addressed the concern that is reasonably raised in the amendment. To do so would make sure that the combination of ECHR/Human Rights Act compliance and the requirements under the code of practice addresses the concerns that the noble Earl raises. On that basis, I hope that he is able to withdraw his amendment.