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Mr. Boswell: Again, the Minister is trying to answer our points. What if an attorney has a one-off problem that he wants to run past the public guardian, and is not as familiar as he might be with the codes, or does not understand them fully? I take it that in those circumstances the public guardian would be available to give advice on the problem. If, arising from that, a decision had to be taken, could the public guardian, as Column Number: 377 it were, pre-clear that decision, so that the attorney felt confident with the situation when he had taken that advice?Mr. Lammy: Yes to both questions. I hope that the hon. Member for Chesterfield will be further reassured to hear that we will undertake research to evaluate the success of the legislation and the code. That will include taking surveys among the general public and carers on awareness about some of the main provisions of the Bill and the code. I hope that the hon. Gentleman will withdraw his amendment. Paul Holmes: I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Mr. Boswell: I beg to move amendment No. 55, in
The Chairman: With this it will be convenient to discuss the following amendments: No. 56, in
No. 57, in
No. 66, in
'section 35, section 39, section 41 or'.
No. 68, in
', but may not come into force until after approval of both Houses of Parliament of a draft Code of Practice under section 40 of this Act'.
2.45 pmMr. Boswell: The amendment would introduce an affirmative resolution procedure in respect of the code. In my view, that would be desirable. It may be for the Minister to consider whether that should be done on the code's first publication and converted to a negative resolution procedure for subsequent cases. Several Committee members will be familiar with the special educational needs code that proceeded in parallel with the Special Educational Needs and Disability Act 2001, during the discussion of which I led for my party. In another place there was, frankly, something of a row about the draft code, and it was taken back and redrafted. I do not seek to make trouble for the code, and the way in which the Minister has been trying to answer the debate has given me some encouragement, but it would be an important parliamentary event and would merit an affirmative resolution procedure. Amendment No. 68 would not allow the Bill to come into force until the draft code had been approved. I think that the Minister would agree and would concede that he sees the code as an integral part of the package, another part of which is the Bill. The one will not work effectively without the other. Like other Committee members, I acknowledge the Department's considerable achievement and its wise move in producing the draft code—in its first and working stage; we understand that, and make allowances for it—so that the Committee could be informed. I am sure that it will repay further study Column Number: 378 after the Committee has concluded. It would be a very good idea for the draft code to be approved before the final implementation of the measure, not least because some of the assurances that we have sought to put into the Bill are, in the Minister's book, read into the code.Those are all matters of judgment and decision; there is no absolute truth one way or the other. No doubt, the Minister will say persuasively that it would be possible to pray against the provisions, trigger a debate and even persuade the usual channels, in extreme cases, that we should have the debate on the Floor of the House. I understand that, but in that case the mechanism would not be loaded towards proper public consideration. It is important that we should have a good public debate at the outset about a matter that, as the Minister has conceded, affects a large number of people. The aim of such a debate would not be simply to scrutinise, let alone, necessarily, to criticise, but to inform public opinion and put the matter into a wider format than this Committee. It would also ensure that parliamentary colleagues, who will have to handle some of the casework, would begin to become familiar with what is required. The amendments are not aggressive, but they are worth consideration. Mr. Lammy: I remind Committee members that there was no requirement for the draft code to be subject to a negative resolution procedure in the draft Bill, nor in the Law Commission's earlier draft of it. Despite the Joint Committee's deep interest in the code, and the extensive hearings that it held on all mental capacity issues, it did not suggest that the code should be subject to the negative resolution procedure. However, it will be necessary to go a step further. As case law develops, we may revise sections of the code regularly—perhaps several times a year. It would be very cumbersome for Parliament to have to debate each revision. The first revision of the code laid before Parliament will have been subject to extensive consultation. I have indicated the range of groups with which we are working, and that has been the tone of the entirety of the Committee's proceedings. Following Royal Assent, a fully revised draft code will be put out for formal public consultation in accordance with Government guidelines on consultations, and we will consult before each revision. I fully expect the Bill's code to be as successful as those issued under the Disability Discrimination Act 1995, which were praised by one of the witnesses to the Joint Committee. Those codes were subject to the negative resolution procedure. We believe that that is also the right level of scrutiny for our code. I hope that the hon. Member for Daventry agrees that in providing a very early draft of the code for the benefit of the Committee, we have shown our commitment to getting it right and to continuing the consultative process throughout. Amendment No. 66 specifically deals with subjecting the independent consultee service to the affirmative resolution procedure. My hon. Friend the Minister of State said that we would consider whether the regulation-making power in clause 39 that enables us to extend the role of the independent consultee Column Number: 379 might need greater scrutiny, for reasons about which we have already had extensive debate. Those regulations will allow an extension of the independent consultee's function to new situations that will not have been considered by Parliament. That is different from the code, which will aim to reflect the Bill when it emerges from parliamentary scrutiny.With regard to amendment No. 68, and its context in the commencement of the Mental Capacity Act, we do not anticipate that the Act will come into force before 2007, because it is important that all the necessary preparatory work to get the measure right is carried out. Producing the code of practice is an important part of that preparation, and I want to ensure that the code is published in good time before the Bill is implemented. I do not anticipate any difficulties in having the code ready in time. I hope, therefore, that the hon. Gentleman will withdraw the amendment. Mr. Boswell: I am grateful to the Minister for his comments, although I must say that I am not wholly persuaded. However, it is getting rather late in the day and so I do not intend to force the issue at present. The argument that no one said that they wanted something is not of itself sufficient to say that it should not happen. I am also slightly worried that Ministers are beginning to develop a habit of saying, ''Let's consult everybody else, but the last people we should consult are Members of Parliament.'' By that I mean no disrespect to the stakeholders or the interested parties, to whom we are grateful for the briefing that they have provided for us, collectively and individually, and with whom the Minister is right to consult. I do not want that comment caricatured as suggesting that Members of Parliament are the only people with any wisdom in the matter—that is certainly not the case. However, I am saying that a degree of parliamentary hurdling is quite an important part of the process, although I know that it is tedious for Ministers and does sometimes hold things up, which is a consideration. I think that we as a Committee may say modestly that the fact that we have been putting the Minister over the jumps in the Standing Committee has been worth while and good for him, if I may say so, because it has not been partisan—we have all been involved. I indicated that there are areas of judgment in these matters. There is also the possibility of disseminating the code more widely—not just to the stakeholders but to other interested parties, including interested Members of Parliament. The Minister has already referred to the codes under the Disability Discrimination Act. Wearing another hat, I received those codes and commented on them as a consultee; I was pleased to do so. Perhaps, as Members of Parliament, we do not do that often enough. The Minister might like to consider the whole process again, but at this stage I am not going to spoil my duck by forcing the issue. However, I would not like the Minister to feel that we are entirely convinced on this or on one or two other issues: we are not. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Column Number: 380 Clause 41 ordered to stand part of the Bill.
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