Northern Ireland Assembly, 16 February 2016

320 contributions from 53 members. The official report.

Assembly Business

Mitchel McLaughlin (Speaker, South Antrim)

The first item of business is the consideration of business not concluded on Monday 15 February. As all the business in yesterday's Order Paper was considered, we will move on.

Executive Committee Business

Mitchel McLaughlin (Speaker, South Antrim)

The next three motions are to approve statutory rules relating to the Proceeds of Crime Act (POCA) 2002. The Business Committee agreed that there should be a single debate during which the Minister and Members should address all three motions. I shall ask the Clerk to read the first motion and call on the Minister to move it. The debate on all three motions will then begin. When all who wish to speak have done so, I shall put the Question on the first motion. The second motion will then be read into the record, and I will call the Minister to move it. The Question will then be put on that motion. After the Question is put on the second motion, the third motion will be read into the record, and I will call the Minister to move it. The Question will then be put on that motion. If that is clear, I shall proceed.

David Ford (Alliance, South Antrim)

I beg to move

That the draft Proceeds of Crime Act 2002 (Search, Seizure and Detention of Property: Code of Practice) Order (Northern Ireland) 2016 be approved.

The following motions stood in the Order Paper:

That the draft Proceeds of Crime Act 2002 (Cash Searches: Code of Practice) Order (Northern Ireland) 2016 be approved. — [Mr Ford (The Minister of Justice).]

That the draft Proceeds of Crime Act 2002 (Investigations: Code of Practice) Order (Northern Ireland) 2016 be approved. — [Mr Ford (The Minister of Justice).]

The Proceeds of Crime Act 2002 is designed to provide law enforcement agencies with tools to recover the proceeds of crime and deny criminals the opportunity to accumulate assets secured by illegal means. The Act empowers law enforcement officers to seize cash that they believe is crime-related and to secure its forfeiture in court proceedings and enables courts to freeze a suspect's assets at the start of a criminal investigation. POCA gives investigators the power to seek court orders directing financial institutions in certain cases and places an onus on any professional person working in regulated industries to immediately report any suspicion of crime.

The purpose of the orders before the Assembly today is to give effect to the first Northern Ireland-specific codes of practice. They tailor guidance on the use of POCA powers to this jurisdiction rather than previous arrangements under which guidance was issued on a UK-wide basis in UK-wide codes of practice. I believe that it is only proper that local codes of practice should apply where the functions fall under devolved responsibilities, as is the case in Scotland and Northern Ireland.

The Northern Ireland codes under scrutiny today mirror previous guidance that continues to apply in codes issued by the Secretary of State, with appropriate updates and modifications for Northern Ireland. They also closely follow codes with which we are perhaps more familiar under the Police and Criminal Evidence Act (PACE). The codes provide important safeguards to ensure that powers are used appropriately in a targeted, effective and consistent way.

POCA has been subject to review and amendment to strengthen its powers. The codes have been updated with all the changes and, in that way, form a consistent and consolidated manual for those using the powers. They provide reassurance to the general public and provide information for those who may be affected by the powers.

POCA stipulates that my Department must prepare and publish a draft of any new or revised code of practice. Consultation on that was undertaken over a 12-week period between August and November 2015. Representations were considered, and the codes were subsequently amended where the Department thought it appropriate. The consultation did not recommend policy changes or raise any equality or other impact issues. The updated codes were laid before the Assembly in draft. I will outline briefly the content of the three codes.

The search, seizure and detention of property code of practice provides guidance to constables and accredited financial investigators on the exercise of powers to search, seize and detain property that may be needed to satisfy a future confiscation order. Those new powers will be introduced to Northern Ireland on 1 March 2016.

The recovery of cash search powers code of practice provides guidance on the operation of the powers to search for cash where there are reasonable grounds for suspecting that it is obtained through, or intended for use in, unlawful conduct.

The investigations code of practice provides guidance on the exercise of the investigation powers in POCA.

On 1 March 2016, POCA amendments will be commenced in Northern Ireland, including the following: powers to allow the search of a vehicle for criminal cash, similar to searching a person or property; powers to prevent the dissipation of property that may subsequently be used to satisfy a confiscation order; expanded civil recovery powers; and the change of court jurisdiction for detained cash investigations from the High Court to the Crown Court.

Those changes will be introduced by secondary legislation at Westminster, as the responsibility has not been devolved. My Department has worked closely with the Home Office, and the changes have been reflected in the Northern Ireland codes.

Removing the profits that fund crime serves to disrupt the cycle that sustains criminal enterprises and fraudsters. The strengthening of the POCA regime, reflected in the codes of practice, will help to disrupt, deter and reduce organised crime and will, ultimately, help to protect the public from the serious harm that it causes.

In the UK, between 2010 and 2014, criminal assets worth more than £746 million were seized across all methods of recovery, and assets worth more than £2·5 billion were frozen. In Northern Ireland, in 2014-15, £2 million was recovered through confiscation orders. There is still more to do to reclaim the proceeds of crime and facilitate more effective enforcement. The changes being addressed today are a step in that direction.

In conclusion, POCA removes criminal assets that could be used to support further criminality; it stifles criminal activity and sends a clear message that crime does not pay. Used to its maximum effect, it will, ultimately, disrupt and deter criminality, and the Northern Ireland codes of practice are an important part of that. I commend the three orders to the House.

Alastair Ross (DUP, East Antrim)

I will speak very briefly on behalf of the Committee. As the Minister has already outlined, the rules before us today will bring three distinct Northern Ireland codes of practice into the operation of powers under the Proceeds of Crime Act 2002. The codes of practice will provide necessary guidance for constables and officers with responsibility in that area and specifically in relation to cash searches, investigations, and the search, seizure and detention of property.

At its meeting on 28 January, the Committee noted that the draft codes of practice form part of a wider POCA commencement programme and that the Department has been working closely with the Home Office in scrutinising proposed legislation, engaging in consultation and providing consent where required.

The Department has consulted and kept the Committee updated on the development of the three codes of practice throughout the past year.

I will briefly highlight the Committee's consideration of those matters. In June 2015, the Department wrote to the Committee to outline its intention to hold a public consultation on the three draft codes of practice. At its meeting on 11 June, the Committee agreed that it was content for the consultation to take place and to consider the matter further when the results of the consultation were available. At the meeting on 19 November, the Committee noted the outcome of the consultation and agreed that it was content with the draft codes of practice, which it noted would bring the POCA regime up to date and into line with England, Wales and Scotland, subject to jurisdictional variations. In December, the Committee agreed that it was content with the Department's proposal to bring forward the statutory rules required to bring the codes of practice into operation. At the meeting on 18 January 2016, the Committee noted that the Examiner of Statutory Rules had raised no issues with the technical aspect of the rules. The Committee therefore agreed to recommend that the statutory rules be affirmed by the Assembly, and it supports all three motions that have been laid.

Danny Kennedy (UUP, Newry and Armagh)

I am grateful to say that the draft orders are consistent, good and sensible, and I am happy to indicate support for them. They are consistent with UK-wide codes of practice but are now perhaps made more local because of devolution.

In welcoming the orders being put in place by the Minister and the House, I ask the Minister to reflect on what memorandums of understanding or issues we have with the Republic of Ireland, given the high propensity for cross-border criminality. Of course, the very unedifying events in the criminal world in Dublin at present give rise to concern as to whether we have memorandums of understanding and similar codes of practice that can be worked to the benefit of the justice authorities in Northern Ireland.

David Ford (Alliance, South Antrim)

Once again, the debate satisfies Ford's rule of Assembly business. It has been a brief debate, but it has covered very significant issues. As I frequently do, I thank the Committee Chair, but in a genuine way, for his comments and for the consideration by the Committee of the necessity of getting the codes of practice into place.

In response to the very specific points made by Mr Kennedy, I say that it seems to me that he has put his finger on it: we now have codes that are consistent across the UK but that are tailored to match devolution. Given that POCA is purely a UK piece of legislation, there are clearly limitations on its applicability to our cross-border relationships, but, as the Member will know, the new cross-border task force that is being led by the two police services will be a key way of ensuring that cross-border criminality is addressed. In the near future, I hope that we will be launching the revision of the cross-border policing arrangements. That will show that good work can continue across the border. Certainly, when assets are being seized, which is a key part of the draft orders, there is very significant cooperation between the various agencies involved, including the two police services and the National Crime Agency, to ensure that work is coordinated as far as possible. Although it is not directly part of today's discussion, I think that I can give Mr Kennedy the assurances that he wants.

I condemn all three codes to the House in the terms in which I and the Chair outlined them.

[Interruption.]

Question put and agreed to. Resolved:

That the draft Proceeds of Crime Act 2002 (Search, Seizure and Detention of Property: Code of Practice) Order (Northern Ireland) 2016 be approved.

David Ford (Alliance, South Antrim)

I commend and move the motion, Mr Speaker.

Some Members

Hear, hear.

David Ford (Alliance, South Antrim)

I beg to move

That the draft Proceeds of Crime Act 2002 (Cash Searches: Code of Practice) Order (Northern Ireland) 2016 be approved.

Question put and agreed to. Resolved:

That the draft Proceeds of Crime Act 2002 (Cash Searches: Code of Practice) Order (Northern Ireland) 2016 be approved.

Stephen Farry (Alliance, North Down)

I beg to move.

That the draft Working Time Regulations (Northern Ireland) 2016 be approved.

I am seeking the Assembly’s approval for The Working Time Regulations (Northern Ireland) 2016. They will not come into operation until approved by this Assembly. They will consolidate and replace the provisions of the Working Time Regulations (Northern Ireland) 1998 and ten statutory rules which amended it from 1998 to 2009. A reduction in the administrative burden to employers will be achieved through the consolidation of a number of separate statutory rules into a single set of regulations. This will make navigation of the provisions of the regulations easier for users.

The Working Time Regulations, as amended, implement European Council directives on working time and the protection of young people at work. They lay down minimum conditions relating to weekly working time, rest entitlements and annual leave, and make special provision for working hours and health assessment in relation to night workers.

Under the Executive’s economic strategy, my Department committed to a review of employment legislation in seeking to stimulate business confidence while maintaining the rights of individual employees. As part of the review my Department initiated pilot reviews of a number of substantial sets of employment regulations. The overall aim was to seek to reduce the administrative and financial burden of regulations without impinging on individual employment rights.

The working time regulations were chosen for review because they are substantial in content; they impact on a significant number of employers and employees; and they afford the opportunity to cover all elements of better regulation principles. One of the key desired outcomes of the pilot was a reduction in the administrative burden for the regulations, which was to be achieved through a combination of better regulation measures including removal of outdated legislation; updating some legislative references, including making the regulations gender-neutral; consolidating a number of separate legal provisions into a single regulation; and strengthening of existing guidance and support.

I am grateful to the project team, representative of employee and employer interests, that reviewed the regulations. This mix of interests helped to ensure that the review was informed by the knowledge and expertise of practitioners and key stakeholders. The project team achieved consensus on a number of actions, including the reduction in administrative burden through consolidation of the regulations.

The provisions of the 1998 regulations and the regulations amending it have previously been the subject of public consultation. As the draft regulations largely consolidate and replace the provisions currently contained in those existing regulations, no further public consultation was deemed necessary.

I am most grateful to the Committee for Employment and Learning for their detailed scrutiny of the regulations.

I hope that I have provided sufficient explanation of the purpose of these regulations and will, of course, respond to any points made by Members in my closing remarks.

Mitchel McLaughlin (Speaker, South Antrim)

I call Mr David Hilditch, who will be speaking on behalf of the Committee for Employment and Learning.

David Hilditch (DUP, East Antrim)

Thank you Mr Speaker. I welcome the opportunity to outline the views of the Committee for Employment and Learning on the statutory rules relating to the working time directive. This statutory rule is made under powers conferred by section 2(2) of the European Communities Act 1972 and article 15 of the Work and Families (Northern Ireland) Order 2006 and is subject to the draft affirmative resolution procedure before the Assembly.

The Working Time Regulations (Northern Ireland) 1998 were designed to protect the health and safety of workers by providing them with rights such as daily and weekly working time limits, health assessments for night workers, in-work rest breaks and paid annual leave.

This statutory rule will consolidate and replace the provisions of the Working Time Regulations (Northern Ireland) 1998, referred to as the 1998 regulations, and the ten statutory rules which amended it from 1998 to 2009. A reduction in the administrative burden to employers will be achieved through the consolidation of a number of separate statutory rules into a single set of regulations. This will make navigation of the regulations easier for users.

The departmental officials briefed the Committee at its meeting on 10 December 2014 on the better regulation pilot reviews of employment regulations.

At the briefing, it was agreed that the document ‘At a Glance Guide to the Working Time Regulations’ would be forwarded to the Committee. The guide was intended for use by employers and was drafted and agreed in conjunction with members of the working time stakeholder group. The Committee noted that correspondence from the Department on 14 January 2015.

The Department advised the Committee on 20 January about the proposed SR 2016-000, the Working Time Regulations (Northern Ireland) 2016. The Department later contacted the Committee on 26 January with a technical amendment to the statutory rule (SR). The Committee considered the SR, including the technical amendment, at its meeting on 27 January and agreed that it was content. The Committee agreed to recommend that the rule be affirmed by the Assembly.

Stephen Farry (Alliance, North Down)

I thank Mr Hilditch, who spoke on the Committee's behalf, as the sole contributor to the debate. I put on record my thanks, once again, to the Committee for its detailed scrutiny, as always, of the business we put before it.

In closing, I reiterate that this does not mark a change in the effect of working time regulations in Northern Ireland but is a simplification, in that we are consolidating a host of different regulations. That should be something that is very much in the interests of employers and employees, and it is a reflection of the overall commitment of the Executive to address regulation and the principles of better regulation as a whole. I commend the motion to the House.

Question put and agreed to. Resolved:

That the draft Working Time Regulations (Northern Ireland) 2016 be approved.

Mitchel McLaughlin (Speaker, South Antrim)

I call junior Minister Ms Jennifer McCann to move the Further Consideration Stage of the Assembly Members (Reduction of Numbers) Bill.

Moved. — [Ms J McCann (Junior Minister, Office of the First Minister and deputy First Minister).]

Mitchel McLaughlin (Speaker, South Antrim)

Members will have a copy of the Marshalled List of amendments detailing the order for consideration. The amendments have been grouped for debate in my provisional grouping of amendments selected list. There is a single group of amendments — amendment Nos 1 to 3 — dealing with the coming into effect of the reduction in the number of Members and a review of and report on the effect of a reduction. We will debate the amendments in turn. Once the group debate is completed, any further amendments will be moved formally. If that is clear, we shall proceed.

Clause 1 (Reduction of number of members returned for each constituency)

Mitchel McLaughlin (Speaker, South Antrim)

We now come to the single group of amendments for debate. With amendment No 1, it will be convenient to debate amendment Nos 2 and 3.

Jennifer McCann (Sinn Féin, Belfast West)

I beg to move amendment No 1:

In page 1, line 5, leave out "next Assembly" and insert "2016".

The following amendments stood on the Marshalled List:

No 2: In page 1, line 7, at end insert

"'2016 election” means the election held in 2016 in accordance with section 31(1) of that Act.'". — [Ms J McCann (Junior Minister, Office of the First Minister and deputy First Minister).]

No 3: After clause 1 insert

"Review of number of members of the Assembly

1A. Standing orders shall provide that the committee established in accordance with section 29A of the Northern Ireland Act 1998 shall?—

(a) review the impact section 1 would have on the total number of Assembly members, should changes be made to the number of constituencies; and

(b) report on its review, including in relation to the desirability of reducing the number of Assembly members below 90, by 1 December 2018.". — [Mr McCallister.]

Jennifer McCann (Sinn Féin, Belfast West)

Amendment No 1, together with amendment No 2, makes a technical adjustment to the Bill that does not change its substance or affect the policy behind it. The policy intent of the Bill is to reduce the number of MLAs elected to the first Assembly after the next election, that is, the 2016 Assembly election. For the Bill to achieve that, it must be enacted before the Assembly election on 5 May 2016; otherwise, the next election to which the reduction will apply will be the 2026 election, rather than the anticipated 2021 election.

We are grateful to the Assembly for agreeing to accelerated passage for the Bill, but even with that, there remains a risk that, at this late stage, Royal Assent may not be obtained in time because of the need to complete subsequent stages after Final Stage. As the Bill deals with a reserved matter that is not ancillary to a transferred matter, the Speaker is, therefore, required to refer it to the Secretary of State before it enters Final Stage. The Secretary of State is subsequently obliged to lay it before Parliament for 20 sitting days before it can be submitted for Royal Assent.

To address that potential problem we have, therefore, brought forward two technical amendments to the Bill. Amendment No 1 makes a minor change to clause 1(2) to refer to the 2016 election. Linked to that is an amendment to clause 1(3), which provides a definition of the term "2016 election" by referring to section 31(1) of the NI Act 1998. These amendments will guarantee that, should Royal Assent not be obtained before the election on 5 May, the reduction in the number of MLAs will still apply to the next election held after the forthcoming election in May.

As the previous debates on the Bill focused mainly on the question of an earlier date than 2021 for it to come into effect, we think it unlikely that any Member would want a situation where it was deferred until 2026. Therefore, I ask Members to support these amendments, which preserve the policy objective of the Bill.

We note the provisions in John McCallister's amendment No 3 that, should there be a change to the number of constituencies as a result of the 2018 parliamentary boundary review, the Assembly and Executive Review Committee (AERC) would be legislatively mandated to review the proposed reduction in the number of Members returned for each constituency. We further note that the amendment also calls for AERC to report on the findings of its review before 1 December 2018 and give consideration to the desirability of reducing the number of Assembly Members to below 90.

The Assembly Members (Reduction of Numbers) Bill has a very specific objective: to reduce by one the number of Members returned by each constituency and for this change to have effect from the first Assembly election after that of 2016. While Mr McCallister's amendment goes beyond the scope of the institutional reform provisions outlined in the Fresh Start Agreement, it is the view of Ministers that the question of whether the Assembly needs to place on itself a legislative imperative for such a review, in addition to its existing power to commission one from AERC, and, therefore, whether to accept or reject this amendment are matters that should be left to the judgement of Members.

Alex Attwood (Social Democratic and Labour Party, Belfast West)

There is a passing temptation to oppose the technical amendments so that the reduction in the number of MLAs is pushed to 2026. On this occasion, however, I will resist that temptation and say that we are content to support the amendments outlined by the junior Minister in order to create certainty on the matter. I was anxious to hear from Mr McCallister about his amendment, because the SDLP was prepared to be persuaded by an argument on the terms in the amendment to have a review in 2018. Maybe we will yet hear that argument. The junior Minister indicated that it is a matter for Members to consider, but it would be interesting to know whether there is anything more than that from the First Minister and deputy First Minister, given that the Bill, inter alia, arises from political discussions. In one way, it arises from Fresh Start, so it would be interesting to know whether the First Minister and deputy First Minister, in the context of Fresh Start, on the amendment that was to have been proposed by Mr McCallister.

Paul Frew (DUP, North Antrim)

I speak in support of the Bill. It was forged out of agreement, and I am glad that that agreement has come about. One of my party's objectives is to reduce the number of Assembly Members. We did not get everything that we wanted, but we are making progress. That must be welcomed, and we are certainly going in the right direction. That is all that I have to say on the matter.

Andy Allen (UUP, Belfast East)

The Ulster Unionist Party has been clear and consistent on this issue. We support the reduction in the number of Members and the timeline. We did not support it earlier, because we felt that we should not be hasty or rush these decisions. We need to make sure that the Assembly is inclusive and diverse, and that it provides proper government for our people. To that end, we support the reduction in the number of Members and the First Minister and deputy First Minister technical amendments. I would like to hear more from Mr McCallister on his amendment. That is all that I have to say on the matter at the moment.

Jennifer McCann (Sinn Féin, Belfast West)

I thank Members for their contributions and for the issues that they raised. As I said, amendment Nos 1 and 2 make small technical adjustments to the Bill. They do not change the substance or affect the policy. They are necessary so that, should Royal Assent not be obtained before the election on 5 May 2016, the reduction in the number of MLAs will still apply to the next election held after the forthcoming election in May. I ask Members to support amendment Nos 1 and 2.

(Mr Principal Deputy Speaker [Mr Newton] in the Chair)

Concerning amendment No 3, tabled by Mr McCallister, as I have also previously said, it is the view of Ministers that the question of whether the Assembly needs to place on itself a legislative imperative for such a review, in addition to its existing power to commission one from AERC, and, therefore, whether to accept or reject this amendment, should be left to the judgement of Members. I hope that that answers Mr Attwood's request.

Again, I thank Members. In conclusion, the Assembly Members (Reduction of Numbers) Bill is important legislation, and I am glad to see it progress through the Assembly.

Robin Newton (DUP, Belfast East)

I ask the House to take its ease for a few minutes, please.

Amendment No 1 agreed to.

In page 1, line 5, leave out "next Assembly" and insert "2016". — [Ms J McCann (Junior Minister, Office of the First Minister and deputy First Minister).]

Amendment No 2 made:

In page 1, line 7, at end insert

"'2016 election” means the election held in 2016 in accordance with section 31(1) of that Act.'". — [Ms J McCann (Junior Minister, Office of the First Minister and deputy First Minister).]

Robin Newton (DUP, Belfast East)

Mr McCallister is not in the Chamber to move formally amendment No 3.

Amendment No 3 not moved.

Robin Newton (DUP, Belfast East)

That concludes Further Consideration Stage of the Assembly Members (Reduction of Numbers) Bill. The Bill stands referred to the Speaker.

I ask the House to take its ease for a few moments.

Robin Newton (DUP, Belfast East)

As no amendments have been tabled, there is no opportunity to discuss the Budget Bill today. Members will, of course, be able to have a full debate at Final Stage. Further Consideration Stage is, therefore, concluded. The Bill stands referred to the Speaker.

I ask the House to take its ease for a few minutes.

Order. As the Minister of Enterprise, Trade and Investment is not in his place to move the next item of business, which is the Draft Renewables Obligation (Amendment) Order (Northern Ireland) 2016, the item falls. The House should take its ease for a few minutes to allow us to proceed with other business.

Robin Newton (DUP, Belfast East)

Order, Members. The sitting will now resume. I call the Minister of Health, Social Services and Public Safety, Mr Simon Hamilton, to move the Consideration Stage of the Mental Capacity Bill.

Moved. — [Mr Hamilton (The Minister of Health, Social Services and Public Safety).]

Robin Newton (DUP, Belfast East)

Members will have a copy of the Marshalled List of amendments detailing the order for consideration. The amendments have been grouped for debate in the provisional grouping of amendments selected list. There are five groups of amendments. I remind Members intending to speak during the debate on a group of amendments that they should address all the amendments in the group on which they wish to comment. Once the debate on the group is completed, any further amendments in the group will be moved formally as we go through the Bill and the Question on each will be put without debate. The Questions on stand part will be taken at the appropriate points in the Bill. If that is clear, we shall proceed.

Notice taken that 10 Members were not present. House counted, and, there being fewer than 10 Members present, the Principal Deputy Speaker ordered the Division Bells to be rung. Upon 10 Members being present —

Robin Newton (DUP, Belfast East)

No amendments have been tabled to clauses 1 to 3. I propose by leave of the Assembly to group these clauses for the Question on stand part.

Clauses 1 to 3 ordered to stand part of the Bill.

Robin Newton (DUP, Belfast East)

We now come to the first group of amendments for debate. These amendments will deal with principles, safeguards and protection from liability. Members should note that amendment No 10 is mutually exclusive with amendment No 9; amendment No 31 is mutually exclusive with amendment No 30; amendment Nos 230 to 232 are mutually exclusive with amendment No 229; amendment No 432 is mutually exclusive with amendment No 431; and amendment Nos 438 and 439 are mutually exclusive with amendment No 437.

I call the Minister of Health, Social Services and Public Safety, Mr Simon Hamilton, to move amendment No 1 and to address the other amendments in the group.

Clause 4 (Meaning of “unable to make a decision”)

Simon Hamilton (DUP, Strangford)

I beg to move amendment No 1:

In page 2, line 41, after "means)." insert

"and references to enabling or helping a person to make a decision about a matter are to be read accordingly.".

The following amendments stood on the Marshalled List:

Amendment Nos 2, 7, 8, 10, 11, 14, 16-26, 29, 31, 39-41, 43, 46, 48, 49, 57, 59-63, 75, 76, 82, 94, 137, 140, 145, 146, 176-180, 183-186, 189, 196-202, 204-207, 209-214, 216-221, 230-232, 234-238, 244, 246-248, 331, 369-378, 403, 409-412, 421-423, 425-429, 431-457, 459-462.

Just another 500 or so to go. With your indulgence, Mr Principal Deputy Speaker, I will begin by placing on record my thanks to the Chair, members and staff of the Ad Hoc Joint Committee for the extremely thorough and efficient manner in which they conducted their scrutiny of the Bill. The Committee's report, which was published on 28 January, is testament to their hard work, and it speaks to the magnitude of the task before them. Not only is the Bill one of the largest, if not the largest, to come before the Assembly, it is also one of the most complex. Added to that the pressing nature of the timetable as we fast approach the end of the mandate, the conclusion of the Committee Stage is a significant achievement. It would be remiss of me not to acknowledge that today.

I will start with amendment Nos 1, 2 and 177, which relate to clauses 4, 5 and 158 respectively. Together, the amendments address a point raised by the Royal College of Speech and Language Therapists and by the Committee about the important role of communication support. The amendments make it clear in the Bill that help and support must be given to enable a person to communicate his or her decision, for example, by involving someone who can provide communication support, such as a speech and language therapist. I am pleased that we were able to address that point to the satisfaction of the Committee, as noted in its report.

I will now deal with amendment Nos 7, 8, 10, 11 and 31, which have been tabled by Ms McCorley, Mr McCartney and Mr Lynch. Amendment No 7 adds the words "or injury" to clause 10(1)(a), which provides that the protection from liability in clause 9 does not extend to any:

"civil liability for loss or damage resulting from a person’s negligence in doing an act".

I am advised that, strictly speaking, the amendment is unnecessary as personal injury would already be caught by the wording of clause 10(1)(a) as it stands. I do not, therefore, support the amendment to clause 10.

Amendment No 8 seeks to replace the word "threat" in clause 12(4)(b) with the phrase:

"an expressed intention to use force"

I confess that I am not clear as to the motivation behind that amendment. Perhaps the Members proposing it will enlighten us when speaking to it during the debate, but, at this point, I do not see what it adds to the clause or what objective it aims to achieve other than to create a drafting issue with the repetition of the words "to use force". That would have to be corrected at Further Consideration Stage if made by the Assembly today. Therefore, I do not support the amendment to clause 12.

Amendment No 10 is to clause 14(4). It would make sense to cover that with amendment No 31 to clause 31(3), both of which are tabled by Ms McCorley, Mr McCartney and Mr Lynch. The intended effect of those amendments would appear to place a duty on my Department to make regulations prescribing the types of people who are suitably qualified to carry out formal assessments of capacity for the purposes of clause 14 and who can gain access to the home of a person, subject to a community residence requirement for the purposes of clause 31. It is already the case that neither clause 14 nor clause 31 can come into operation before the relevant regulations are made. In other words, the proposed amendments are unnecessary. However, when reviewing those clauses following their introduction, the Office of the Legislative Counsel suggested rewording the relevant subsections in recognition that the word "may" could cause confusion. Amendment Nos 9 and 30 resulted. Those were accepted by the Committee, as noted in its report. Those amendments fall into the second group of amendments to be debated today. They better address the perceived problem that perhaps motivated the Members' amendments.

I also do not support amendment No 11 to clause 16, the effect of which is to remove electroconvulsive therapy (ECT) from the list of serious treatments requiring a second opinion under the Bill. While it is for the Members proposing the amendment to explain their rationale, I suspect that it might have been prompted by the view expressed by some stakeholders during the public consultation and Committee Stage that to single out ECT goes against the underlying aim of the Bill to destigmatise mental health.

Although I am sympathetic to that view, I am more persuaded by the counterargument that, if it is not expressly mentioned in clause 16, the Bill could be perceived to be weakening protections for persons who are undergoing ECT. ECT is specified as requiring a second opinion in the Mental Health (Northern Ireland) Order 1986, which is to be replaced for over-16s by the Bill.

Amendment Nos 14, 16 and 17, all of which amend clause 18, also relate to the issue of second opinions. Among other things, clause 18 requires the doctor giving the second opinion to do certain things before he or she gives it in the form of a certificate. For example, the doctor must consult with those treating a person generally. The effect of amendment No 14, which I am proposing on foot of points raised by some stakeholders during Committee Stage and agreed by the Committee in its report, is to require the doctor to examine a person who is lacking capacity and any relevant health records before providing a certificate.

Amendment No 16 further strengthens the second-opinion safeguard by making it clear in the Bill that the doctor providing the second opinion should be independent of the doctor providing the treatment. Amendment No 17 is a technical amendment that is consequential to that.

I now turn to amendment Nos 18, 22, 23, 24 and 25, tabled by the Chair of the Committee, which relate to what is referred in the Bill as the "prevention of serious harm condition". Although I fully understand the motivation behind the amendments, which were prompted by evidence from the Law Centre during the Committee's deliberations, when you work them through, they could produce some very perverse outcomes for the very people whom the Bill is trying to protect, and that would be difficult to justify. It could, for example, result in people not receiving treatment because they are unable to consent to themselves even though it is clearly in their best interests. For example, a fear of needles or a belief that the doctor is trying to poison them may cause them to resist that treatment. There is already a power in the Bill to prescribe circumstances in which a trust's authorisation would be required where a person is resisting the provision of serious treatment. That is proportionate and workable, but also to require a doctor to be satisfied that, in all such cases, the treatment is necessary to prevent serious harm would not be. I would therefore be concerned if those amendments were to be supported today. As I said, although well-intentioned, they may do more harm than good, which is not the outcome that any of us wants for those who require the protections that the Bill aims to give them.

That brings me to amendment Nos 19, 20 and 21, which were tabled by Ms McCorley and others and which also relate to the prevention of serious harm condition. It is perhaps worth explaining that, as it stands, the Bill requires that condition to be met where it is proposed to deprive people of their liberty or to treat people on a compulsory basis. It means that the person proposing the interventions must reasonably believe that they are necessary to prevent serious harm coming to the person who is unable to consent to the care or treatment required or to prevent serious physical harm coming to others. That is a very high bar, and rightly so.

The effect of the proposed amendments would be to permit the detention of, or the provision of serious treatment on a compulsory basis to, vulnerable individuals who have not done anything unlawful, never mind illegal or criminal, on the basis of there being a risk of something less than serious physical harm to another person. Specifically, it would permit such serious infringements of a person's liberty on the basis of a risk of psychological harm to another person, which is notoriously difficult to prove. Such a lowering of the threshold for detention is not something that we as elected Members should countenance without a full and open debate, particularly when it is not advocated by stakeholders who are deeply committed to the Bill and when the reasoning that I just outlined was explained to, and accepted by, the Committee.

Before dealing with the issue giving rise to the largest number of amendments in this group — again, tabled by Ms McCorley and others — I briefly refer to amendment No 26. That amendment relates to the proposed new schedule 7A, which provides for supervision and assessment orders. I will say more about those orders when debating the fourth group of amendments, but, in essence, amendment No 26 seeks to align the protections available to people, subject to a supervision and assessment order, where it is proposed to treat them, and that treatment is serious, with the protections available to people who are being similarly treated when subject to a measure of a compulsory nature under Part 2 of the Bill. That means that authorisation by a health and social care trust must be sought under schedule 1 in such cases in prescribed circumstances. I hope that Members will support that amendment, which has been accepted by the Committee, as is noted in its report.

Amendment No 29 is the first of 101 amendments that add "approved clinician" or "approved responsible clinician" to references in the Bill to "medical practitioner" or that replace "medical" with "clinical" to describe reports that must be made for very specific purposes in the Bill. The amendments in question are amendment Nos 29, 39 to 41, 43, 46, 57, 59 to 63, 137, 140, 145, 146, 176, 178 to 180, 183 to 186, 189, 196 to 202, 204 to 207, 209 to 214, 216 to 221, 230 to 232, 234 to 238, 244, 246 to 248, 369 to 378, 409 to 412, 421 to 423, 425 to 429, 432, 434 to 436, 438 to 440, 442 to 449, and 459 to 462. Now that should fill somebody's bingo card.

You will all be glad to hear that I propose to deal with all those amendments together as they all appear to be motivated by the same aim. I hope that others follow suit.

[Laughter.]

That aim is to widen out the professional roles provided for in the Bill. This is not a new issue; it came up in the consultation phase and at Committee Stage. The main difficulty with those amendments, as I see it, is that the term "clinician" is very wide and, based on our legal advice, could capture practitioners who would not be suitably qualified to perform the functions and duties envisaged in the Bill. Those functions and duties relate to some of the most serious interventions that might be made in a person's life and require objective medical evidence in order to comply with the relevant legal obligations under the European Convention on Human Rights (ECHR).

There is a real risk, therefore, that those amendments might negatively impact on the Bill's compatibility with the ECHR, particularly when it comes to the provisions relating to deprivations of liberty and the associated authorisation process in schedule 1. As I said, this issue has been on our radar for some time and was raised by the Committee, which accepted the Department's position.

I should also make Members aware that, from a technical standpoint, the proposed amendments are likely to necessitate further changes to the Bill, which would have to be identified before and then made at Further Consideration Stage. With limited time available, there is a risk that not all of those further amendments would be identified in time, increasing the risk of needing a further Bill in the next mandate to deal with the issue.

I now turn to the issue of automatic referrals to the review tribunal, which is the subject of amendment Nos 48 and 49. Those amendments would change the duty on health and social care trusts to refer a person's case to the tribunal, where it has not been considered, from two years to one year, or, if the person is under 16, from one year to six months. In my view, those amendments are unnecessary because there are other mechanisms in the Bill that can be used to bring a person's case to the tribunal. First, the person in respect of whom an authorisation has been granted under schedule 1 or schedule 2, or his nominated person, can apply to the tribunal at various times during the authorisation period. Secondly, at any time during an authorisation period, various people can refer the person's case to the tribunal to consider whether the criteria for that authorisation are still met. Those referrals can be made by the Attorney General and the Department, as well as the Master of the Office of Care and Protection, if directed to do so by the court. There is an additional duty on the trust to notify the Attorney General if somebody in its care lacks the capacity to make an application to the tribunal. The Attorney General can then decide to make an application to the tribunal if not to do so would be a breach of that person's rights.

Taking into account all those various access routes to the tribunal, I do not believe these amendments are necessary. Furthermore, they would have an obvious cost implication that cannot be ignored in the current financial climate. Tribunals would be convened more frequently, requiring significant additional resources and an accompanying increase in the legal aid bill.

Amendment No 75 relates to clause 73, which deals with the nominated person additional safeguard in Part 2. Clause 73 currently provides that, where a person is unable to appoint his nominated person himself or herself, and one must be appointed, the default nominated person cannot be somebody who lives outside the UK, the Channel Islands, the Isle of Man or Ireland. I believe that this is a reasonable, sensible and proportionate restriction that the proposed amendment would remove, creating what I consider unnecessary practical difficulties. For example, what if the default nominated person lives in Australia and the person who lacks capacity is here in Northern Ireland? Surely it is preferable to have someone close by who may be consulted as frequently and freely as necessary. I do not, therefore, support that amendment to clause 73.

Amendment Nos 76 and 94 are related. They aim to clarify the nature of information that may be disclosed to a nominated person and the independent advocate, and they serve to align the language in the Bill with that in the Data Protection Act 1998.

Amendment No 82 addresses a concern raised by the Law Centre and the Committee about the independence of independent advocates, which is a further safeguard provided for in Part 2. It removes the words "so far as practicable" from clause 84, with the aim of strengthening the requirement for independence. The amendment was endorsed by the Committee, as noted in its report.

That brings me to amendment No 331, which inserts a new clause into the Bill relating to advance decisions. This is a significant policy amendment that I have agreed to make in light of the Committee's scrutiny of the Bill. I should like to begin my brief comments on this by saying that the Committee was right to devote time to it. It is not straightforward, as I hope I will explain, and the conclusion ultimately reached by the Committee reflects that. As Members may be aware, an advance decision is a decision that a person makes when they have capacity to refuse a specific treatment in the future should they lose capacity. Clause 11 gives statutory recognition to advance decisions but does not include provisions on how they should be made or operate. That will continue to be governed by common law.

The main reason for adopting this approach is flexibility. The common law can continue to evolve, as the provisions are not set in stone. That is different from the approach taken in the English Mental Capacity Act 2005, which codified the common-law rules, although Scotland did not go down that route. Perhaps influenced by the position in England, some stakeholders argued that the Bill here should include similar provisions. However, my Department has consistently maintained that fusing mental health and mental capacity legislation will create a radically different legal framework to that in which the common-law rules were developed and which has not yet been attempted anywhere else. Simply following the English approach is not the answer in our circumstances. The more prudent course, which I am convinced is the right one for now, is to give this Bill time to bed in before deciding what the rules on advance decisions should be. As far as I can see, there just is not the consensus or the certainty to be able to legislate for it now. We, as an Assembly, are better taking the time to get it right, and the Bill allows us to do that.

However, I also accept that it is our responsibility to set the policy in matters such as these, which the Committee rightly reflects in its report. I want to be absolutely clear that the position adopted in the Bill is in no way an attempt to shirk that responsibility, which is why I had no difficulty in agreeing to the Committee's very reasonable suggestion to look again at this within a set time frame and to commit my Department to that in the Bill. That is reflected in new clause 272A, which is covered by amendment No 403 and which I hope will find support in the Chamber.

Before I conclude my remarks on the first group, I want to briefly refer to the remaining amendments in it. None of them changes the policy intent of the relevant provisions; they simply clarify that intent. Amendment Nos 431, 433, 437 and 441 relate to paragraph 11 of schedule 2, which deals with short-term detention in hospital and the requirement to examine, on admission, the person being detained. Amendment No 431 makes it clear that the examination must be done immediately on admission. That mirrors the approach in the equivalent article 9 of the Mental Health (Northern Ireland) Order 1986. Amendment Nos 433, 437 and 441 are technical amendments consequential to amendment No 431.

Finally in this group, amendment Nos 450 to 457 relate to reports made under schedule 2 to the Bill that are found to be defective or incorrect. Amendment Nos 450 and 451 limit the type of errors that can be corrected under paragraph 20 of schedule 2 to administrative errors only. Amendment Nos 452 to 456, which are to paragraph 21, allow the medical report required for the authorisation granted under schedule 2 to be corrected within the permitted period. Amendment No 457 inserts new paragraph 22, which allows for a new report to be issued if the original report does not comply with the requirements of the Bill. The amendment also requires a new examination of the person and a statement that the detention conditions have been met at all times since the original report. As I mentioned, these amendments do not change the policy intent, but they do ensure that errors can be corrected without putting the person being detained at risk.

I am very glad to say that I thank Members for bearing with me, and I look forward to hearing their views on the amendments in this group.

Alastair Ross (DUP, East Antrim)

I will endeavour to be as quick in getting through my speech as the Minister was. I speak on behalf of the Ad Hoc Joint Committee, which is the first Ad Hoc Joint Committee to be established by the Assembly. Its membership was drawn from the Health Committee and the Justice Committee. We began our work in May 2015, with the task of looking at the Committee Stage of the Mental Capacity Bill, which is, as the Minister acknowledged, one of the largest Bills to have ever come before the Assembly.

Members will be aware that the background to the Bill is the Bamford review, which concluded in 2007 that, for the first time, there should be a single legislative framework to reform the existing mental health legislation and to introduce capacity legislation to Northern Ireland. Mental health law is broadly concerned with the reduction of the risks flowing from the mental disorder to the patient and to other people, whilst mental capacity law is designed to empower people to make decisions for themselves, whenever possible, and to protect people who lack capacity.

The key purpose of developing a single legislative framework to cover mental ill health and mental capacity is to attempt to reduce the stigma and inequalities that can sometimes flow from having specific mental health legislation. However, the production of such legislation is in no way a straightforward task, and, indeed, Northern Ireland is the only place in the world to attempt such an approach. England and Wales passed the Mental Capacity Act in 2005, for example, but it does not cover the treatment of mental illness. They have maintained two distinct legislative frameworks. The closest that anywhere has come to contemplating the approach is Victoria, Australia. In 2012, it considered bringing together mental health law and mental capacity law and produced a report. It decided, however, not to proceed further and concluded that it was a matter for ongoing debate. Given that we are leading the world in this regard and that it is such groundbreaking legislation, one would imagine that every Member would want to speak. Given that very few Members will contribute, I suggest that that perhaps reflects the complexity and difficulty in getting your head round such a complex Bill. It is important to note up front the complexity of the task that we faced in scrutinising a Bill that fuses mental health and mental capacity legislation, given that it will bring about a fundamental change to the way in which people with a mental illness receive treatment.

As I said, the Ad Hoc Joint Committee was established in May. We considered the Bill each week until we reported on 25 January. It is a long Bill, comprising 295 clauses, which are divided into 15 Parts and 11 schedules. The Committee worked its way through the Bill, starting off with introductory briefings with the Departments during June. Towards the end of June, we also held a round-table evidence session with international experts and academics in the fields of mental health and mental capacity to provide us with another perspective on the key issues in the Bill. The Committee received 53 submissions in written evidence and, during September and October 2015, took oral evidence from a wide range of interested parties. The remainder of our time was spent deliberating on the Bill, including fairly detailed negotiations with the Department of Health on a number of clauses.

The Committee's scrutiny led to its recommending to the Department of Health that it make a number of significant amendments to the Bill. The majority of the recommendations have been accepted by the Minister and are reflected in the amendments that we are considering today. I thank the Minister for his cooperative approach and for taking on board the Committee's views. I am sure that my Committee colleagues will support me in noting the good working relationship that was established between the Committee and the Bill teams, which were composed of officials from the Department of Health and the Department of Justice. Officials made themselves available to answer our queries, in writing and in person, when required. That certainly helped us to come to an agreed position on many issues in the Bill.

Before I speak specifically about the amendments in the first group, I will provide a brief overview of the key issues that we identified as we went through the scrutiny process. First, the Department's decision to recognise but not codify advance decisions in the Bill and to leave it to common law; secondly, the Department's approach to the future role of enduring powers of attorney; thirdly, whether criminal justice disposals provided for in the Bill were sufficiently broad to deal with offenders who pose a risk of serious psychological harm to others; and, fourthly, the extent of the powers in the Bill to allow the Department to amend primary legislation by means of secondary legislation. I will return to those issues later in the debate.

There was also the financial cost of the Bill, which I want to focus on for a few minutes before I turn my remarks to the detail of the amendments. There are major questions on how and when the legislation will be implemented. The introduction of the Bill will require a substantial change to practice and culture across the health and social care and justice sectors. Major change, which will necessitate staff training, additional staffing, an increased legal aid budget, the establishment and operation of a review tribunal and an Office of the Public Guardian, comes with a hefty price tag. The Departments have estimated that between £76 million and £84 million will be required for year 1 implementation costs and between £68 million and £76 million for recurrent costs on an annual basis.

Therefore, the outworkings of the Bill would cost the Executive an additional £70 million each year, and every year going forward. If the Health and Justice Departments were required to find that money from their existing baseline, it would place significant pressure on both budgets.

Given the current financial climate and the likely financial climate over the four or five years, the question genuinely arises of whether Northern Ireland will be able to afford the implementation of this substantial legislation. If we cannot afford it, what happens then? Will we have passed legislation that could end up being out of date by the time that it is commenced five or 10 years down the line? These are serious questions, and I am interested to hear the Minister's thoughts on the Bill's affordability as the debate progresses throughout the day.

I will now comment specifically on the first group of amendments. All the amendments in the group that were tabled by the Minister were supported by the Committee. Given the sheer number of ministerial amendments, I will not go into detail on every single one. Rather, I will focus my remarks on those that are, from the Committee's point of view, most significant.

Amendment Nos 1 and 2, tabled by the Minister, relate to one of the key elements of the Bill, which is that people must be supported to make their own decisions wherever possible. Clause 5 sets out the steps that must be taken to allow that to happen. Stakeholders welcomed clause 5. However, some organisations believed that it could be strengthened further. The Royal College of Speech and Language Therapists was keen to ensure that the clause made clear that communication support must be given to those who require it. The Committee supported that view and asked the Department to consider amendments to address the issue. The Department tabled amendments to clauses 4 and 5, which are before us today as amendment Nos 1 and 2.

Amendment No 1 makes clear in the Bill that help and support must be given to enable a person to communicate his or her decision. Amendment No 2 amplifies the point that help and support must be given to enable a person to communicate his or her decision, without affecting the generality of clause 5(2). Those amendments were welcomed by the Committee.

Amendment No 14 also came about as a result of Committee scrutiny. The RQIA and the Commissioner for Older People queried the way in which clause 18 was drafted as it implied that a second opinion could be made without a doctor being obliged to visit patients or obtain their medical records. The Committee agreed that the clause should make absolutely clear that both would be required in the course of producing a second opinion. The Department agreed to amend clause 18, and the Committee welcomes amendment No 14, which requires a medical practitioner to make at least one visit to a patient and to have made at least one request for their records before he or she can issue a certificate.

Amendment No 82, tabled by the Minister, was also in response to an issue raised by the Committee. It relates to clause 84 and the matter of independent advocates. Under the Bill, people have a right to an independent advocate in certain circumstances. These circumstances are set out in clauses 35 and 36 and are referred to as "relevant acts". A relevant act is defined as one of the following: deprivation of liberty; a requirement to attend a certain place to receive treatment with serious consequences; the imposition of a community residence requirement; or the provision of serious compulsory treatment. Therefore, it is clear that independent advocates have a role to play when people find themselves at a point in their life when serious decisions about their future treatment or care are to be made.

Clause 84 sets out the arrangements for instructing independent advocates. As drafted, clause 84(3) requires that the health and social care trust must have regard to the principle that the advocate must be independent of the person who proposes to do the act or give the treatment, so far as practicable. As the Minister mentioned, the Law Centre flagged its concern at the use of the phrase "so far as practicable" and suggested that it be removed from the clause for what the Committee viewed as very sound reasons. The Law Centre argued that independent should mean independent and that it should be entirely possible to appoint an advocate who is completely independent of the decision-maker. Given that independent advocates are instructed only when the most serious interventions are proposed — those that will have a major impact on a person's life — the Committee felt that it was right and proper that the independence of the advocate should be without doubt. The Department accepted that rationale and tabled amendment No 82, which was also welcomed by the Committee.

Amendment No 331, tabled by the Minister, concerns one of the key issues that the Committee focused on during its scrutiny. Clause 11 deals with advance decisions and states that protection from liability does not apply if, for example, a doctor carries out treatment:

"that conflicts with an effective advance decision to refuse treatment"

that has been made by the patient. A range of stakeholders was concerned that, whilst clause 11 recognises effective advance decisions, it does not set out the rules for what constitutes an effective advance decision or how people can go about making one. Instead, the Department is leaving those issues to common law.

Stakeholders pointed out that, in contrast, advance decisions are codified in the English Mental Capacity Act 2005. The concerns about the Department's approach to advance decisions were flagged up by the Northern Ireland Association for Mental Health, the Commissioner for Older People, the Children's Law Centre, Compassion in Dying, the Medical Protection Society, Disability Action and the Alzheimer's Society. For example, Compassion in Dying was concerned that the Bill has the potential to create confusion for people who would like to plan ahead for their future treatment in the event of loss of capacity; and for healthcare professionals who may be faced with an advance decision but are unsure as to whether it is "effective" and are therefore unsure of their obligations to respect it. However, other stakeholders, such as the Northern Ireland Association of Social Workers and the Royal College of Psychiatrists, took the position that case law and the wider societal debate about advance decisions was still developing. They suggested that the code of practice should contain guidance on how advance decisions should be drafted.

The Committee explored the issues involved with the Department in some detail. We wanted to understand its rationale for relying on case law rather than using the Bill to provide clarity and direction on advance decisions. The Department's position was based on a number of arguments. One of its key points was that because the Mental Capacity Bill fuses mental health and mental capacity legislation, there could be a wider range of treatments covered by advance decisions than is the case in England and Wales. The courts have not yet considered those issues. In the Department's view, the courts should have the opportunity to develop common law rules further. The Department also suggested that it would be preferable to allow for greater public debate on advance decisions once the Bill is in operation rather than setting the rules in law at this point. Officials advised that consultation on the Bill had demonstrated that there is not enough evidence or consensus to allow the rules around advance decisions to be set down in the Bill and that there are still key policy issues to be determined, such as, for example, whether the rules should be the same for all treatments or for people of all ages.

The Committee was concerned that an issue of such significance was going to be left to the courts to determine rather than the policy being developed by the Department and approved by the Assembly through the Bill. Members questioned the Department further on existing case law. Officials revealed that, in fact, there had been no cases on advance decisions to date in the courts in Northern Ireland. They then stated that public awareness raising, as part of the implementation phase of the Bill, might result in people being more aware of advance decisions and that that could generate more court cases. The Committee did not accept the notion that people being forced to take court cases because of a lack of clarity in the law was somehow a positive thing in that it would help to develop case law. In the Committee's view, that would be evidence of failure, not success. In addition, it would leave healthcare professionals and patients in a vulnerable and uncertain position, particularly in connection to advance decisions for mental health conditions.

The Committee acknowledged that not enough policy work has been done by the Department to allow the rules around advance decisions to be put in the Bill. For example, a range of issues would need careful consideration, such as whether advance decisions should be limited to refusal of a specific treatment or should allow for positive statements requesting a specific treatment; whether children and adults should be allowed to make advance decisions; and whether an advance decision could be confined to an already diagnosed condition or extended to a future condition or future circumstances. The Committee therefore agreed to ask the Department to bring forward an amendment to provide for a "review and report" clause, which would require the Department to review the law on advance decisions within a certain period from the Act becoming law and lay a report before the Assembly. The Department agreed to make such an amendment to require it to review the law on advance decisions and produce a report to be laid in the Assembly within three years of the Bill coming into operation. That is amendment No 331, and it has been welcomed by the Committee.

I will now turn to the Committee amendments in this group. Amendment Nos 18, 22, 23, 24 and 25 are Committee amendments and relate to clauses 21 and 22. Clauses 21 and 22 come under Part 2 of the Bill, which deals with additional safeguards for what is called "treatment with serious consequences". This is defined in clause 20 and broadly means treatment that causes the person serious pain, distress or side effects, is major surgery or has a serious impact on their day-to-day life. Under the Bill as drafted, a nominated person can object to a proposed treatment with serious consequences. In most cases, the nominated person would be a family member or carer. In those instances, the treatment can proceed only if the prevention of serious harm condition is met. That condition is that failure to provide the treatment would create a risk of serious harm to the individual in question or to other persons. However, if the individual who lacks capacity resists the treatment with serious consequences, that does not trigger the prevention of serious harm condition. The Law Centre had significant concerns about what it saw as that discrepancy. It argued that it is unfair that resistance from the person who was actually the subject of the treatment did not have the same weight as an objection from a nominated person. The Law Centre was of the view that clause 22 should be amended so that the prevention of serious harm condition applies.

The Committee sought the Department's view on this proposed amendment. Its response, much like the Minister outlined earlier, was that the prevention of serious harm condition is a high bar that a decision maker must be satisfied is met before providing certain types of treatment. In the Department's view, that high bar is proportionate when a nominated person is objecting but not when the person themselves is resisting. The rationale is that the person's resistance could be unexpected or unrelated to the treatment itself.

The Committee was not convinced that that was a sound rationale. For example, it might be convenient to say that the person's resistance is due to some other factor and not the treatment that they are about to receive but that is a subjective judgement call. The Committee therefore agreed to bring forward its own amendments to require the prevention of harm condition to be met where a person resists treatment, so that the same standard is required as when a nominated person objects to treatment.

I ask the House to support these amendments.

Rosaleen McCorley (Sinn Féin, Belfast West)

Go raibh maith agat, a Phríomh-LeasCheann Comhairle. Cuirim fáilte roimh an deis labhairt ar an Bhille seo inniu. I welcome the opportunity to speak at the Consideration Stage of the Mental Capacity Bill. At the outset, I state that I support the general principles of the Bill, including its safeguards and protections from liabilities.

Issues around mental capacity could affect any one of us directly or indirectly in our lifetime. It is important that robust legislation is in place that outlines the rights of individuals and the roles and responsibilities of statutory agencies. The principles of this Bill will transform mental health legislation here in the North, and I believe that —

Robin Newton (DUP, Belfast East)

Can I just interrupt the Member? Could you just move your mic forward for the sake of Hansard?

Rosaleen McCorley (Sinn Féin, Belfast West)

Sorry about that. The Bill's passage will benefit hugely those who lack capacity or may lack capacity in the future.

We proposed a number of amendments, and I would like to refer to some of them. Amendment No 8 to clause 12 relates to acts of constraint. The amendment proposes:

"Leave out 'a threat' and insert 'an expressed intention to use force'."

In evidence at Committee Stage, a lot of concerns were raised about using restraint and the terminology of how it was physical and an invasive act. It provoked a lot of comment. Clause 12(4)(b) states that an act restraining a person:

"is a use of force or a threat to use force".

We believe that a better form of words would be "an expressed intention to use force" so that someone would not be restrained without proper grounds. We need to be clearer about an expressed intention to use force so that people are not going to be restrained unnecessarily. That is the rationale behind that amendment.

Amendment No 11 to clause 16 is in relation to electroconvulsive therapy. Again, that was an issue that came up at Committee Stage. We listened to what we were hearing from people, and as part of our responsibility we raised the issue and put forward the amendment. However, having listened to the Minister's explanation of why it needs to be there, we are happy enough not to move that amendment.

Amendment Nos 19 and 20 to clause 21 relate to treatment with serious consequences. They concern the prevention of serious harm condition under additional safeguards. The Bill says that the prevention of serious harm condition is where:

"failure to provide the treatment in question to P would create a risk of serious harm to P or of serious physical harm to other persons".

During the Committee Stage, it was expressed that serious physical harm is included but that that leaves out the fact that serious psychological harm could be caused to a person and that limiting it to physical harm meant that the type of psychological harm that could result from whatever could happen would not be considered. That is why we feel that "physical" should be left out so that the definition is "serious harm". That would have the capacity to include physical or psychological harm.

I move on to amendment No 29. The Minister went on to list all the ensuing amendments that would be affected by this one. I will be honest and say that I was not exactly clear about what the Minister was saying. We had very robust evidence at the Committee as to why we needed to have approved clinicians as part of the decision-making process. I can go into that in detail, but is the Minister prepared to confirm what he said? I did not hear what he said; it was a wee bit unclear. I am happy to listen to him if it that is appropriate. If you could maybe —

Simon Hamilton (DUP, Strangford)

I am happy to intervene if the Member wishes to give way, or I will do it in my summation.

Rosaleen McCorley (Sinn Féin, Belfast West)

In amendment No 29, we seek to insert "approved clinician" after "medical practitioner" on the basis that it would allow other therapists and clinicians to be part of the decision-making process rather than limiting it to just a medical practitioner. That is people who are involved in psychological assessments and that. The Minister said that, because there are several amendments that ensue from amendment No 29, he would deal with all those amendments together, but I did not quite catch what the Minister said.

Robin Newton (DUP, Belfast East)

Are you asking the Minister to respond now or when he makes a winding up speech? He is happy to do it now.

Rosaleen McCorley (Sinn Féin, Belfast West)

Ok.

Simon Hamilton (DUP, Strangford)

Thank you, Mr Principal Deputy Speaker. There are several concerns that flow from the raft of amendments, of which there are 101. I am glad that you did not read all the numbers out as well; I did that courtesy for you. The first issue comes from the fact that "clinician" is quite a wide term and runs the risk of including and capturing practitioners who are not suitably qualified to make important and difficult decisions. They are some of the most difficult decisions that might have to be taken in a person's life. I do not think that any of us want to be in a position where we have people who are not suitably qualified to perform the important functions and duties envisaged in the Bill having to take those decisions. That is why I think that a much narrower term is required.

Moreover, there is a risk that, by doing that, we could stumble over European Convention on Human Rights (ECHR) obligations, as the Bill could be incompatible because of the breadth of that definition. Those are the issues that we are concerned about. When it comes to the provisions that relate to the deprivation of somebody's liberty and the associated authorisation process, which is set out in schedule 1, there are those concerns around the European Convention on Human Rights. In such circumstances, I think and hope that the House will agree that, on one hand, we do not want to fall foul of the ECHR and that, on the other hand, we want to have the right, suitably qualified people taking the very difficult and life-changing decisions envisaged in the Bill.

Robin Newton (DUP, Belfast East)

I ask the Member to continue.

Rosaleen McCorley (Sinn Féin, Belfast West)

Go raibh maith agat. Can I maybe ask whether that would include suitably qualified registered psychologists? Can that be written into the Bill in some way?

Simon Hamilton (DUP, Strangford)

I will perhaps reflect on that and come to it in my winding-up remarks. If we are unable to do that, we will reflect on the issue and perhaps discuss it at Further Consideration Stage. I am happy, however, to reflect on it and come back to it in my winding-up remarks.

Rosaleen McCorley (Sinn Féin, Belfast West)

Thank you very much. I accept that. On the basis of what the Minister has said, we will not now move those amendments.

I move on to amendment Nos 48 and 49. Again, we tabled those amendments because of issues and concerns raised during Committee Stage about the period before a case could be considered again. The Minister has laid out the rationale for that and given us some explanation of how safeguards will be put in place to address the concerns. Therefore, we are happy not to move those amendments.

Finally, clause 73 states that the default nominated person has to be somebody who is resident in the Channel Islands, the UK, the Isle of Man or Ireland. We believe that there is no strong reason that it cannot be someone who is resident in another country, and we feel that there is no need to have that limitation. I do not believe that there is a strong reason why that needs to be there, so I am content to move amendment No 75.

Fearghal McKinney (Social Democratic and Labour Party, Belfast South)

I welcome the opportunity to contribute to the Consideration Stage of the Mental Capacity Bill. Before getting on to the group 1 amendments, it is worthwhile sketching out some of the broader issues underpinning the need for change. It is worthwhile reiterating some stark statistics on the number of people whom today's Bill will impact on. We have almost 20,000 people living with dementia in Northern Ireland, and that number is likely to rise. We have 1% of the population suffering from schizophrenia, 13% suffering from depression and almost 214,000 carers for people who may lack capacity. All those people and many others may need important decisions to be made on their behalf, or they may need to make decisions for other people. It is in that context that we see how important the Bill will be for those with mental illness, their families and extended families.

The development of the Bill, as we all know, has been a long process, starting back in 2002 with the Bamford review, which was commissioned to examine the best possible way to provide services to people with mental health issues or a learning disability. Finalised in 2007, it recommended having a single piece of legislation that would provide a framework for the reform of mental health legislation.

I welcome the group 1 amendments, which, as I said, have the aim of empowering vulnerable adults with impaired mental capacity to make as many of their own decisions as possible. I welcome the fact that adequate legislative measures and safeguards are tightened through the amendments to ensure that individuals are protected when decisions have to be made on their behalf. It is worth underscoring the point that we really have an opportunity with the Bill to be world leaders in setting the best standards achievable for vulnerable adults who may lack, even intermittently, the capacity to make important decisions for themselves.

The Bill has been described as representing a paradigm shift in the approach to the care and treatment of individuals with mental disorders. No longer will they be treated or seen as a separate class of individual. Capacity will no longer be defined differently among people, and that has to be recognised as a positive move.

The Bill calls for suitable and adequate support to be given to individuals when all decisions relating to capacity are taken. I welcome the approach taken by the Minister in tabling amendments in that regard to ensure that there is a clear measure of support available, whether that be through minimum standards or otherwise. We also need to ensure that, when older people make important decisions about their future, which often happens in urgent or time-critical situations, they are given the best opportunity to make their own choices.

I will touch on the practicalities of the Bill. There is an obvious need to ensure at the outset that the bodies and individuals operating under the Bill are adequately funded and resourced. It is important to mention that the SDLP previously noted its concerns over the Bamford action plans and asked that the appropriate funding be made available to implement them. I will touch on that later.

There is a broad spectrum of individuals who do not receive the care or support that they need, and it is important that the Assembly reflects on that. However, it is positive, in the context of today's debate, to see some outcome from the Bamford action plans.

At Second Stage, the Chair of the Ad Hoc Committee referred to finance and the extra cost. I am sure that it would be beneficial to have some sort of economic audit carried out of that. While some people see everything as cost, there could be savings as well.

I turn to the group of amendments. The Committee received a large amount of correspondence and briefings and undertook significant discussion of safeguards and protections from the liability section of the Bill. The SDLP made clear at Second Stage that, while we support the principles of the Bill, as I have underscored, we have lagged behind in the UK for decades in not having that fully tailored legislative framework for mental capacity, and we have relied on the antiquated Mental Health Order, which wraps mental capacity around mental health disorder in the common law, relying on the outdated principle of necessity. The concerns of those with mental illness have historically been separated from the treatment of capacity in general. That remains the case in England, Wales and Scotland, which have proceeded with developing legislation that has been enacted for a number of years. We have been lagging behind due to the absence of an exhaustive framework.

The SDLP recognises that advance decisions can be a useful tool with which patients and professionals can work together to draw up a plan of what to do when a patient is unwell. That means that their wishes can be respected. The Alzheimer's Society related to the Committee that the Bill must operate as a stimulus to encourage the practice of making advance decisions, but it had significant concerns about who triggers the practice and how that happens so as to maximise the capacity of people with dementia at an early stage. They stated that their voice must be clearly audible in decisions being made close to the end of their life when they cannot make those decisions. Amendment No 331 is the new clause on advance decisions. It provides for a review, after three years, of the law relating to advance decisions to refuse treatment. We welcome that and will support it.

Clauses 35 and 36 provide for the inclusion of the independent advocate as an additional safeguard in all cases where the individual lacks capacity. We support the technical amendments in that regard.

Clauses 45 to 51 provide for rights of review of authorisation, that is to say a right to apply to a tribunal to review decisions relating to capacity. There are significant amendments to the tribunal section in Part 6 of the Bill, but, first, I would like to note some of the points made to the Committee on the tribunal.

The Law Society noted the expanding remit of the tribunal but sought confirmation that there would be a corresponding increase in resources.

Robin Newton (DUP, Belfast East)

Can I just ask you to confirm that you are speaking to the group 1 amendments?

Fearghal McKinney (Social Democratic and Labour Party, Belfast South)

Yes, though I have to say that that inclusion may have drifted beyond the —

[Laughter.]

Robin Newton (DUP, Belfast East)

Not for the first time. I draw you back to the group 1 amendments.

Fearghal McKinney (Social Democratic and Labour Party, Belfast South)

I was about to conclude my remarks on the general issue of budget. Departments have estimated that between £75 million and £129 million is required —

Robin Newton (DUP, Belfast East)

Mr McKinney, the budget is not part of this debate.

Fearghal McKinney (Social Democratic and Labour Party, Belfast South)

Thank you, Mr Principal Deputy Speaker.

Jo-Anne Dobson (UUP, Upper Bann)

I also welcome the opportunity to speak on the first group of amendments. I am glad that the Bill has reached this stage, as, for a time, there was concern about whether it would get caught up in the dissolution of the Assembly. I, again, express my disappointment at how long it took for the Bill to come to the Floor, especially considering that it and the wider single legislative framework were first proposed as far back as 2009 following the Bamford review. Nevertheless, as the Chair of the Ad Hoc Committee explained, it is a very important Bill, and I believe that all members of the Committee showed a willingness to see it reach this stage. There was, understandably, significant stakeholder interest in the Bill, and I was impressed by the quality of the evidence that we heard. It was important, however, that the bodies that will, ultimately, implement the Bill had sufficient opportunity to feed into it.

I support the first group of amendments. The Minister has reflected many of the issues that we heard in Committee.

I also support the amendments that have been tabled by Sinn Féin. Those that would insert the term "approved practitioners" into the Bill should hopefully ensure that it will remain flexible to changes in service provision in years to come.

The only other comment that I have at this stage is that, while I note that the Sinn Féin amendments would tighten the language in some areas of the Bill, such as clause 14, it was disappointing that they did not show the same consistency with my amendments yesterday.

Kieran McCarthy (Alliance, Strangford)

Like others, I am pleased to contribute briefly to the debate on this important legislation. On this occasion, I will take the advice of the Minister and, indeed, the Chair of the Ad Hoc Committee and not repeat things that have been said. I place on record my thanks to the Committee staff, officials from both Departments and all the stakeholders who gave evidence during the process. I also thank, of course, our officials, who helped to get the Committee through this important work.

It has been an extraordinarily complex piece of legislation. It has involved detailed scrutiny by the Ad Hoc Committee for the best part of six months and two Departments — Health and Justice — which are to be commended for working together on this important legislation. Of course, the Bill has long been under development and has been necessary for a considerable time. Therefore, it is particularly important that we complete its remaining stages before the end of the mandate. We must not let it fail and, in doing so, lose all the work to date and, moreover, the reforms that it will deliver. It is important that we press on and make good progress in the time that remains.

The Assembly will be pleased to note that I do not intend to go systematically through each amendment in the group, but I pass my admiration on to the Minister and the Chair of the Committee for seeking to do so.

I put on record my support for the amendments from the Minister and the Committee. They reflect the detailed work that has been conducted by both Departments and the Committee over the past months to ensure that a robust and informed exchange took place so that there was a balanced outcome. The amendments in the group reflect the importance of the underlying principles and the need for adequate and appropriate safeguards in their application.

The Bill will hopefully improve the lot of people who suffer from mental illness. Mental health and learning disability have always been regarded as the Cinderella of the health service. Hopefully, this work will now bring them to a level playing field. That is what we are all striving to attain. All the work comes on the foundation of the sterling work of the Bamford working group on mental health and learning disability. As others have stated, by offering a single, integrated Mental Capacity Act, the Bill is groundbreaking and, in fact, world-beating in best practice by international standards.

Robin Newton (DUP, Belfast East)

I ask the Member to come back to the amendments.

Kieran McCarthy (Alliance, Strangford)

OK, Mr Principal Deputy Speaker. I am, therefore, sceptical about the many amendments tabled by Sinn Féin at the eleventh hour outside the context of the structured scrutiny that was offered through the Ad Hoc Committee, where proposed amendments could be tested and the full implications taken into account. In particular, the amendments that introduce the term "clinician" alongside "medical practitioner", while maybe well-intentioned, may have the unintended consequence of not being compliant with the European Convention on Human Rights, in that they dilute the standard of evidence used in any intervention.

In conclusion, I will comment on the point of finance, which was raised by the Chair of the Committee. Not least given the huge volume of work that has been conducted to date, it is vital that we now place the Bill on the statute book. Obviously, in the context of some very tight public finances and pressures on the health budget, consideration will have to be given to resourcing, but that can be for another day. Nevertheless, the direction of travel should be clear so that the Bill can be passed and implemented in full as soon as possible.

Simon Hamilton (DUP, Strangford)

I thank all Members for their contribution to the debate on group 1.

It will be abundantly clear to everyone listening to the debate just how much consideration the Committee and members have given to the Bill. It is also clear how many important issues the Bill touches on, and there is still a lot more to go. It is important, therefore, that we get it all right.

What we are talking about today will affect the lives of many people in Northern Ireland. One small change to a clause could have a massive impact on someone's life. We should not forget that as we debate and take decisions on amendments. With that message to the front of my mind, it is apt that I turn to the amendments tabled by Sinn Féin, which account for the vast majority in the group. It is apt, because, although a significant number of amendments were tabled, they relate to only four or five issues or concepts. Crucially, all of them were raised with my officials during Committee Stage, either in evidence sessions or in correspondence. As noted in the Committee's report, the Department's explanation or position on them, which I reflected in my opening remarks, was noted or accepted by the Committee, so it should not be surprising that I am opposed to the amendments today.

Ms McCorley made a specific point on the 101 amendments relating to definitional changes. In general, I welcome the fact that several amendments tabled by Sinn Féin will not be moved. I noted the ECHR concerns that Mr McCarthy raised regarding amendment No 29 and subsequent amendments about diluting the standards of those making very important assessments, as well as the suitability of the qualifications of the people making those assessments. I will give the Member a fuller explanation in writing on the issue of psychologists, but there is a role for other professions in other areas of the Bill, particularly in the formal assessment of capacity. I will give the Member a much fuller explanation in correspondence of the issue she raises between now and Further Consideration Stage.

I turn briefly to the Committee amendment relating to the prevention of serious harm. I listened carefully to the contributions, particularly that of the Chair. It is clear that this is well intentioned, but I fear that there is a problem because of the way in which the condition works, and its potential extension to a much wider group of people, as proposed by the amendment, could up end up doing more harm than good. Put bluntly, none of us wants to end up in a position in which people would be worse off than they would otherwise have been as a result of the Bill. There is a real risk of that happening if the relevant amendments to clauses 21 and 22 are made today.

The Chair raised the issue of costs, and other Members touched on it. From the outset, we have acknowledged that, because of the complexity of the Bill and the scale of the legislation, this would be expensive to implement. Initially, there were some very high cost estimates that we were not content with. We looked at the cost estimates again and have significantly reduced them to between £76 million and £85 million for the first full year of implementation and, for each year thereafter, between £68 million and £77 million. The costs have significantly reduced, but it is still a sizeable amount, particularly in the current budgetary climate. To be fair, we have been honest about that from the start.

The best course of action is to pass the Bill into law. Many Members have asked where the money is for this and why we have not put money aside, but it would not be proper to start to put resources against a Bill that has not been passed into law. The appropriate time to look at an implementation timetable is when the Bill passes into law, after which funding can be accordingly applied. Clearly, we can do that in a way that would, for want of a better phrase, phase in the implementation of the Bill. We will need to consider that when implementing the Bill in the future.

I again place on record my thanks to the Committee for its work on advance decisions. The Chair tackled the issue with his customary enthusiasm. As he noted, the strength of the views of stakeholders on advance decisions rightly dictated that the Department's position required close scrutiny.

I take issue with the view expressed that the position adopted in the Bill leaves patients and healthcare professionals in a vulnerable and uncertain position. I argue that the Bill, as a whole, does the exact opposite. As I said in my opening remarks, I am pleased to table an amendment that commits the Department to review this area of law and report in three years' time. That brings me to the end of my concluding remarks on the group 1 amendments.

Amendment No 1 agreed to.

In page 2, line 41, after "means)." insert

"and references to enabling or helping a person to make a decision about a matter are to be read accordingly.". — [Mr Hamilton (The Minister of Health, Social Services and Public Safety).]

Clause 4, as amended, ordered to stand part of the Bill.

Clause 5 (Supporting person to make decision)

Amendment No 2 made:

In page 3, line 29, at end insert

"(3A) For the purposes of providing the information or explanation mentioned in subsection (2)(a) in a way appropriate to the person’s circumstances it may, in particular, be appropriate?—

(a) to use simple language or visual aids; or

(b) to provide support for the purposes of communicating the information or explanation.

(3B) The reference in subsection (2)(c) to persons whose involvement is likely to help the person to make a decision may, in particular, include a person who provides support to help the person communicate his or her decision.". — [Mr Hamilton (The Minister of Health, Social Services and Public Safety).]

Clause 5, as amended, ordered to stand part of the Bill.

Clause 6 ordered to stand part of the Bill.

Clause 7 (Best interests)

Robin Newton (DUP, Belfast East)

We now come to the second group of amendments for debate, which deal with subordinate legislation-making power, amendments to the Mental Health (Northern Ireland) Order 1986 and technical changes.

Simon Hamilton (DUP, Strangford)

I beg to move amendment No 3:

In page 5, line 17, after "independent" insert "mental capacity".

The following amendments stood on the Marshalled List:

Amendment Nos 4, 6, 9, 12-13, 15, 27-28, 30, 32-38, 42, 44-45, 47, 50, 52-55, 58, 64, 65-74, 78-81, 83-93, 95-115, 120-122, 124, 126-127, 129-132, 134-136, 138, 143-144, 152-171, 175, 181, 190, 194, 222, 225-226, 250, 252, 255-256, 261-262, 264, 268-269, 273-274, 278, 280-286, 290-291, 297, 299, 301, 315, 320, 322-323, 325-329, 332-339, 343-346, 348-353, 355-358, 360, 364-368, 379-388, 392-402, 404-408, 413-420, 424, 430, 458, 463-469, 471-480, 482-485, 487-488.

With your permission, Mr Principal Deputy Speaker, I propose to deal with this group's technical amendments together. They are minor and do not, in my view, require a great deal of explanation. I will deal first with amendment Nos 3 and 4, which relate to clause 7. As introduced, clause 7 makes further provision in relation to the best interests principle. I have been asked by the Committee, following a suggestion made by the Law Centre, to replace the term "independent advocate", which appears twice in that clause, with "independent mental capacity advocate". The change will help to differentiate between advocates who will be instructed under the Bill and advocates who will be commissioned by the health and social care trusts for other purposes. It in no way affects their role. Amendment Nos 6, 33-37, 44, 58, 64-67, 73, 79-81, 83-89, 91-93, 95-115, 334, 339, 392-393, 413, 430 and 436 make the same change to references to independent advocates throughout the rest of the Bill. I am pleased that we were able to address this point to the satisfaction of the Committee.

Amendment Nos 12, 13, 15, 55, 70-72, 78, 90, 124, 126, 127, 129, 130-132, 134-136, 143, 144, 152-171, 175, 181, 190, 194, 222, 225, 226, 250, 252, 255, 256, 261-262, 264 — I am about halfway through — 268, 269, 273, 274, 278, 281, 290-291, 297, 299, 301, 315, 320, 328-329, 332, 333, 335, 336-338, 343-353, 355-358, 360, 364, 365-368, 394, 396, 397, 399-401, 414, 419, 420, 465, 466-468, 469, 483 and 484 — I will repeat those in case anybody did not hear them —

[Laughter.]

— are simply drafting improvements or clarify policy intent. Thankfully, they do not, I think, require any explanation. I have done them enough justice already. Moving on to amendment Nos 27 and 28, which amend clause 28. These amendments are to avoid any potential confusion around the use of the word "likely". They aim to simply clarify that the doctor needs to be satisfied that the chances of the treatment turning out to be serious are more than negligible. The word "likely" suggests that the doctor needs to be satisfied that the proposed treatment will probably be serious, which is not what is intended. Amendment Nos 32, 38, 74, 406 to 408, and 415 carry this change through to other provisions in the Bill where the word "likely" is used in the same context. Consequential to these amendments is my opposition to clause 65. Clause 65 explains what is meant by references in the Bill to treatment likely to be treatment with serious consequences, and will be made redundant if the amendments that I have just outlined are made.

I turn now to amendment No 42, which affects clause 39. This clause sets out requirements around extension reports; that is, reports that extend a period of authorisation, one of the additional safeguards provided for in Part 2 of the Bill. One such requirement is to make an assessment of a person's capacity to apply to the tribunal to seek a review of the authorisation. The amendment clarifies that this assessment should be at the time that the extension report is being made. In other words, it is not a speculative assessment. No change in effect is intended. Amendment Nos 45, 52, 221, 280, 286, 408, 416, 418, 424, 458, and 464 carry this change in wording to other provisions in the Bill where necessary.

Amendment No 47 relates to clause 48. Clause 48 imposes a duty on the relevant health and social care trust to refer a person's case to the review tribunal if an authorisation has been granted and extended. The aim of the amendment is to make it clear that the policy is that the authorisation must have been in force for at least two years, or one year for under-18s, at the time of the extension for the clause to apply. Amendment Nos 50, 282, 283, 284, and 285 are consequential to this amendment.

Amendment No 68 clarifies that Part 2 of the Bill is not applicable where there is a legal obligation to act under other legislation. Amendment 120 clarifies that it is the court that specifies the individuals who the person lacking capacity may have contact with rather than their deputies.

Amendment Nos 121 and 122 are related.

Amendment Nos 124, 126 and 127, 129 to 132, 134 and 135 are technical amendments to align the language used in the Bill with the Mental Health (Northern Ireland) Order 1986.

Amendment No 327 clarifies that proceedings in relation to an offence under clause 266 may be brought by the Director of Public Prosecutions in addition to a person who has the consent of the Director of Public Prosecutions and the Regulation and Quality Improvement Authority (RQIA).

Amendment No 384 is a consequential technical amendment on foot of the amendment to clause 205, which I will discuss in more detail when the debate on group 4 arises.

Amendment 417 to paragraph 20 in schedule 1, clarifies the circumstances in which an interim authorisation may be made. Amendment Nos 53 and 54 are consequential to that amendment.

I now want to turn to the amendments in this group that relate to subordinate legislation-making powers. Amendment No 9 relates to clause 14. Clause 14 defines what is meant by formal capacity assessment and includes a regulation-making power to prescribe in regulations who is deemed to be suitably qualified to undertake that assessment. The amendment clarifies that only someone prescribed by the regulations can carry out the assessment. Any ambiguity over whether those regulations will be made is, therefore, removed. With this in mind, I would like to draw Members' attention to amendment No 10 again, which has been tabled by Ms McCorley and others. I referred to this during the debate on the first group of amendments. It should now be clear to the House that amendment No 10 is not required. I would, therefore, ask for amendment No 9 to be supported and for amendment No 10 to be opposed.

A similar issue arises in relation to amendment Nos 30 and 31, which relate to prescribing healthcare professionals permitted access to someone who is subject to a community residence requirement. Again, my tabled amendment No 30, removes any ambiguity around the need to make these regulations: they must be made. Amendment No 31 is, therefore, not required, and I urge Members to oppose it and instead support amendment No 30, which already deals appropriately with the issue.

I now want to turn to one of the more significant amendments that I propose to make. The Committee made it clear to the Department that it was not prepared to support clause 288, which confers powers on the Department to make further provision in regulations. Members were concerned that the powers conferred were too wide.

I have, therefore, been asked by the Committee to bring forward a more limited version of clause 288. Before turning to my proposals, I want it to be clear that the rationale for clause 288, in its original form, was to deal with the unknown unknowns, that is, any unintended consequences that the introduction of such an innovative framework might have.

The amendments that I now propose provide a compromise, given the Committee's clear stance on that issue. However, I should make Members aware, as I did the Committee, that they will increase the risk of needing a further Bill in the future. The relevant amendments are amendment Nos 69, 379 to 383, 385, 387, 388, 398, 404 and 405, all of which are consequential to my opposition to clause 288. In summary, those amendments insert a new clause 58A to replace — but to mirror the effect of — subsection (3) of clause 288, as originally drafted. That power continues to be required. My Department must be able to modify provisions in Part 2 of the Bill to deal with cases where an intervention is proposed in relation to a child under 16, who will actually be 16 when the intervention is carried out. It also gives my Department a power to make regulations for the rectification of reports made under Part 2 that have been found to be incorrect or defective, within a prescribed period. It is important that that power be retained.

A power to make regulations amending other primary legislation in consequence of the Bill only is now contained in clause 290. A power to make transitional, transitory or a saving provision, by regulations in connection with the commencement of the Bill, has been moved to clause 294 and does not now include a power to amend or modify other primary legislation.

Amendment Nos 379 to 385 and 387 to clause 289, are largely consequential on the changes to clause 288, and the Department's acceptance of the recommendations in the report of the Examiner of Statutory Rules.

Moving on to other subordinate legislation-making powers, amendment No 138 gives effect to comments made by the Examiner of Statutory Rules on clause 131, which deals with research. I thank the Examiner for that advice. The aim of the amendment is to ensure that any regulations relating to clinical trials that are not to be treated as research for the purposes of Part 8 must be prescribed by regulation, subject to negative resolution rather than by way of an administrative designation.

Amendment Nos 322, 323, 325, 326 and 402 are purely technical in nature, clarifying policy intent, which we will not go into.

Amendment No 386 makes the regulation-making power in paragraph 14 of schedule 7A, which deals with supervision and assessment orders, subject to affirmative resolution, as some regulations could have a significant policy impact.

Amendment No 402 clarifies that the principles in Part 1 apply to regulations made under the Bill.

It is also worth pointing out that amendment No 395, although minor, ensures that any references in the Bill to "prescribed" attracts the same definition as that for regulations.

I conclude my comments on the second group by detailing those amendments that relate to the Mental Health (Northern Ireland) Order 1986. Again, there are some minor technical changes brought forward by amendment Nos 471, 474, 475 and 482. Amendment No 472 relates to the repeal of Part 6 of the Mental Health Order, which sets out the functions of the Regulation and Quality Improvement Authority. Those functions were transferred from the Mental Health Commission to the RQIA in 2009 but, at that time, were not amended to take account of the wider functions conferred on the RQIA by the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003.

The purpose of repealing Part 6 of the Mental Health Order is to address overlaps and to make provision for all of RQIA's functions in one piece of legislation, that is, in the RQIA 2003 Order. Amendment No 472 addresses a dual registration problem relating to private mental health hospitals. Currently, they must be registered under Part 7 of the Mental Health Order and Part 3 of the RQIA 2003 Order. The effect of the amendment is that any future registration and inspection of private hospitals must be done in accordance with the provisions of the RQIA 2003 Order. Members will wish to note that there are currently no private mental health hospitals in Northern Ireland. I am simply tidying up provisions so that they are dealt with under one piece of legislation.

That is also the intention behind amendment No 473, which is in part linked to the new clause 277A, which is amendment No 341 in group 3. We will discuss that amendment in more detail when the debate on group 3 arises. What is worth mentioning now, however, is that amendment No 473 ensures that the duty in article 118(4) of the Mental Health Order to maintain a register of people:

"receiving medical treatment for mental disorder as in-patients in hospitals",

applies to people under 18 and not under 16, as requested by the Committee.

Amendment No 476 replaces references to "a place of safety" in article 129 of the Mental Health Order with the term "an appropriate place", in order to avoid confusion with the new "place of safety" regime in Part 9 of the Bill. Amendment Nos 477 to 480 are consequential. Amendment No 487 removes the words "any police station" from article 129(7) of the Mental Health Order so that it will no longer be possible to take a child under 16 to a police station, as both stakeholders and professionals alike agreed that that is not appropriate and, indeed, that the provision is rarely used.

Other minor consequential amendments are brought forward by amendment Nos 485 and 488.

Mr Principal Deputy Speaker, you and Members will be glad to hear that that concludes my contribution on the second group of amendments regarding subordinate legislation-making powers, changes to the Mental Health Order and technical matters. I look forward to hearing Members' views.

Alastair Ross (DUP, East Antrim)

I think that the Minister used more numbers in that speech than in any speech that he made during his time as Finance Minister. That perhaps reflects the number of amendments tabled to the Bill. Again, I will not comment on all of them; rather, I will focus on those that were of most interest to the Committee.

Amendment No 3 is the first of many amendments that will bring about a change of terminology throughout the Bill. Part 4 of the Bill deals with independent advocates. Under the Bill, people have a right to an independent advocate in certain circumstances, which are set out in clauses 35 and 36 and referred to as "relevant acts". A "relevant act" is defined as being one of the following: a deprivation of liberty; a requirement to attend a certain place to receive treatment with serious consequences; the imposition of a community residence requirement; or the provision of serious compulsory treatment.

In its evidence to the Committee, the Law Centre proposed that the term "independent advocate" should be changed to "independent mental capacity advocate" so that there is no confusion between general advocacy services and an advocate appointed under the Bill. It argued that, given the extensive independent advocacy work already taking place in Northern Ireland — for example, for children in care and people with learning disabilities — there is a concern that the use of the phrase "independent advocate" in the Bill could lead to confusion about what is a very specific statutory role. The Law Centre further advised that in England, Wales and Scotland the equivalent term in legislation is "independent mental capacity advocate". It proposed that that would be a better term to use in the Bill in order to make it clear that a very specific kind of advocacy function is being carried out.

The Law Centre's view was backed up by the written evidence that the Committee received on the Bill. Looking at that evidence, it was clear that some organisations misunderstood the role of the independent advocate in the legislation. Some stakeholders were of the impression that independent advocates provided for by the Bill play a part in giving general support to people who lack capacity, in assessing capacity, or in the best-interests decision-making process for all decisions, whether routine or serious.

The Committee asked the Department for its views on changing the terminology. Initially, the Department was opposed to the suggestion and contended that the term "independent mental capacity advocate" would cause confusion, because it is used in the English Mental Capacity Act 2005. The Committee was not convinced by the argument that somehow people in Northern Ireland would be thrown by the term "independent mental capacity advocate" because it is also used in English legislation in a slightly different way. Health and Social Care staff in Northern Ireland will operate according to this Bill and not in accordance with the English legislation, and it would be likely that a very small number of staff would even be aware of the terminology used in the English system. The Department eventually came round to the Committee’s view and agreed to bring forward a raft of amendments to rename "independent advocates" as "independent mental capacity advocates" throughout the Bill. The Committee therefore supports all those amendments.

There are a number of amendments tabled by the Minister that emanate from the Committee's opposition to clause 288. Those are amendment Nos 69, 379-388, 404 and 405. The Committee has given notice that it is opposed to clause 288. The Minister has also given notice that he opposes clause 288, and I welcome the fact that he has agreed to adopt that position. As he said, clause 288 gives the Department the power to amend or modify by way of secondary legislation any primary legislation in connection with the Bill. To be clear, that means that it could make amendments to the Bill itself when enacted or to any other primary legislation, and not through, for example, a miscellaneous provisions Bill but through regulations.

In the Committee’s view, such powers could not be justified. We are fully aware that secondary legislation comes before Committees for consideration, but the crucial difference is that a Committee or a Member cannot put down an amendment to a regulation — our only option is to pray against it. Furthermore, regulations are often brought in quite a number of years after the primary legislation has been passed. The collective knowledge of the Committee that scrutinised the original Bill may not be there, and therefore the House is not as fully attuned to the context and background of the secondary legislation being considered.

The Committee requested that the Department prepare a more limited version of clause 288 for its consideration.

In response, the Department submitted a range of linked amendments to clauses 289, 290 and 294 and a new clause 58A to address the Committee's concerns.

Amendment Nos 69, 379-388, and 404 and 405 are based on the premise that clause 288 will be removed from the Bill. In effect, the powers to make consequential amendments to the Act are now restricted to Part 11, and the powers to modify the Act in relation to children transitioning from being under 16 to over 16 and in relation to correcting errors in documents are now clearly limited to Part 2 of the Bill. Residual powers to amend other primary legislation in consequence of the Bill once enacted is provided for in the amendment to clause 290. It will be used to, for example, amend and substitute references to the "Mental Health Order (NI) 1986" in other primary legislation with the "Mental Capacity Act", where appropriate. The Committee accepts that the need for this sort of tidying-up power is inevitable with a Bill of this size and complexity.

Whilst the Department will argue that the removal of clause 288 and its replacement with more limited powers will increase the chance of a further Bill being required in the future to supplement or amend the Act, the Committee is of a view that there has to be a cut-off point in giving Departments free rein to amend primary legislation by way of regulations. We think that the amendments before the House today bring an appropriate balance of flexibility and accountability. Given that there may be significant time lags in bringing the key provisions of the Bill into effect, there may actually be time for the Department to bring an amending Bill, if required.

I am grateful that the Minister gave a more rational response to this position at the Committee than the Justice Minister did when we took a similar view on the Justice (No. 1) Bill and the Justice (No. 2) Bill. It is an important function of Committees to make sure that we do not give Departments free rein to introduce significant policy issues through secondary legislation. I think that it is important that, at times, Committees flex their muscles in that regard, and the Committee was in agreement with that. It is something that is increasingly creeping into all Bills being brought forward by all Ministers in the Executive, and it is something that we need to be alert to.

Amendment No 473, tabled by the Minister, came about, again, through Committee scrutiny. The RQIA advised the Committee that, under the Mental Health Order 1986, the health trusts are required to maintain a register of all persons under 18 who are receiving medical treatment for a mental disorder as inpatients in hospital in an adult ward. A Department of Health circular requires the trusts to send that register to the RQIA so that it can do unannounced inspections to review the effectiveness of the safeguarding provisions put in place by the trusts for under-18s on adult wards. However, under the Bill as drafted, the amendments to the 1986 Order will mean that the children recorded in the register by the trusts will only be those under the age of 16. As a result, the RQIA will not receive information in relation to 16- and 17-year-olds being treated in adult wards. The RQIA suggested that the Bill be amended to require the trusts to notify the RQIA of any 16- or 17-year-old accommodated in an adult psychiatric facility. The Committee believed that this was a sensible approach and asked the Department if it would be prepared to make such an amendment. The Department provided a proposed amendment, namely amendment No 473.

That concludes my comments on the group 2 amendments.

Jo-Anne Dobson (UUP, Upper Bann)

We are content to support the amendments in group 2. Again, these reflect many of the issues that came up during the Committee deliberations. Several of the amendments in this group, such as amendment Nos 403, 404 and 405, relate to commencement. I am aware that the Minister has indicated in response to a written question that the Bill's timetable still allows for Royal Assent by the end of the current mandate and has further indicated that the commencement date is to be confirmed subject to progress on implementation arrangements. Given the considerable efforts and, indeed, hope of those who presented evidence to the Committee, is the Minister able, at Consideration Stage, to provide us with an update on the implementation arrangements and on when those who will fall under this important legislation will begin to see a positive change in their daily lives as a result?

Finally, I do not think that we would be able to have this debate without mentioning the costs. This is an issue on which the Committee regularly sought information, not least because the costs provided by the Department were pretty vague. Even as we stand here today, the Department is unable to say how much this Bill will cost and how it is going to pay for it. The Minister said earlier that it would not be proper to put money against a Bill that had not been passed into law. Today, we are passing the next stage of this legislation, and it appears that the Department is no more equipped than it was when this was first proposed by Bamford. I feel it is very important for us to pass legislation in this Building that makes a real change to the lives of our constituents. However, it is equally important that the Government are ready and prepared to act once the ink is dry.

Kieran McCarthy (Alliance, Strangford)

I, like Mrs Dobson, am happy to go along with the Minister and, indeed, the Chair of the Ad Hoc Committee on this occasion. I was somewhat taken aback by some comments that were made by the Chair of the Ad Hoc Committee when he seemed to be slightly critical of the Justice Department. I will not allow Mr Ross to criticise the Minister of Justice, because I know that the Minister is, and has been from day one, totally and absolutely committed to working with the Health Minister on this issue. I hope that that was just a blip in —

Alastair Ross (DUP, East Antrim)

Will the Member give way?

Kieran McCarthy (Alliance, Strangford)

As long as you are not going to further criticise the Minister, I will give way for a second.

Alastair Ross (DUP, East Antrim)

I would not dream of it, nor would I criticise the Member. If he reviews what I said, he will see that I said that all Ministers in all parties in all Departments are falling into the bad habit of introducing what is known as the Henry VIII clause. I am sure that the Member, who takes his scrutiny role very seriously in the House and in the Committees he is on, would be concerned if we were giving powers to Departments to make regulations through secondary legislation. We, as legislators, do not have the same ability to scrutinise that. That is the point I was making, and I am sure that the Member would want to agree with me about that.

Kieran McCarthy (Alliance, Strangford)

I thank the Member for his clarification. Yes, I accept what you say. Perhaps I misunderstood. We are all trying to move forward and keep going on this. I will not, in this instance, concede any drawback from the Justice Minister's contribution. As I said, I know that he is totally and absolutely committed.

Simon Hamilton (DUP, Strangford)

That was a bit of light relief for a moment or two in this very heavy debate. I was starting to enjoy that a little too much.

I thank all the Members who contributed to the debate on the second group of amendments. The amendments are largely technical and consequential and have not, therefore, required a great deal of explanation, with the exception of perhaps clause 288. I thought there was a risk that we would get through this group of amendments without the Chair of the Committee referring to such a clause as a Henry VIII clause. He has known me long enough, and he knows me well enough, to know that I have no autocratic tendencies at all. It would not be the sort of thing that I would be looking to do, which is why I am content that clause 288 should not stand part of the Bill. We are going to oppose it. I am also bringing forward a number of other amendments that will collectively limit the powers conferred on the Department to make further provision in regulations. I will take this opportunity to remind the Chamber once again that that approach will increase the risk of needing a further Bill to amend what, hopefully, will be the Mental Capacity Act.

Mrs Dobson raised cost. I refer to the comments that I made in response to the group one debate. We have significantly reduced the cost of implementing the Bill from original estimates to estimates that are much lower but still quite high. Yes, it is an expensive Bill to implement, and I have been clear about that from the very outset. But I think it is right that we continue to press ahead with the legislation. I do not think it is appropriate for any Minister to presume the mind of the Assembly when they start to apply resources — in my case, those are limited resources, and I am sure the Justice Minister would agree that they are limited in his Department — without having the Bill passed. I assure the Member and the House, as I did in group one, that, when the Bill is passed, we will consider putting in place an implementation timetable and to start to apply resources to it accordingly, perhaps in a phased way, to make sure that we get aspects of the Bill implemented as quickly as possible.

I am pleased to commend the amendments tabled in my name in group two to the House.

Amendment No 3 agreed to.

Amendment No 4 made:

In page 5, line 19, after "independent" insert "mental capacity" — [Mr Hamilton (The Minister of Health, Social Services and Public Safety).]

Robin Newton (DUP, Belfast East)

I am reluctant to move on to the group 3 amendments as the Business Committee has arranged to meet at 1.00 pm today. I propose, therefore, by leave of the Assembly, to suspend the sitting until 2.00 pm. The first item of business when we return will be Question Time.

The debate stood suspended. The sitting was suspended at 12.49 pm.

On resuming (Mr Speaker in the Chair) —

Oral Answers to Questions — Finance and Personnel

Mike Nesbitt (UUP, Strangford)

1. Mr Nesbitt asked the Minister of Finance and Personnel for an update on the work of the strategic policy and reform directorate. (AQO 9609/11-16)

Mervyn Storey (DUP, North Antrim)

The work of the strategic policy and reform directorate is very wide and varied. The directorate comprises four divisions. Some of the key work areas that have recently been progressed include the following: preparations for the transfer of corporation tax powers to the Northern Ireland Assembly from April 2018; finalisation of the OECD review; a review of the non-domestic rating system; implementation of the Peace IV and INTERREG Va programmes; and leading on public-sector reform, including delivery of innovation labs and implementation of the cross-cutting review programme.

Mike Nesbitt (UUP, Strangford)

I thank the Minister for his answer and I note the wide and varied range of activity by the strategic policy and reform directorate. As the Minister will be aware, it is proposed that the new Executive Office will have a strategic policy and innovation unit. Will the Minister inform the House where he sees the difference, and will he ensure that there will be no overlap?

Mervyn Storey (DUP, North Antrim)

I thank the Member for his supplementary question. He asks a valid question. Since I came into post, while I was making myself aware of all the various elements of the reform division, I certainly became aware that its work is wide and varied. In fact, I just got some information, for example, in relation to the cross-cutting reform programme and the summary of projects involved in that. I am quite happy to share that with the Member. What needs to be done in the ongoing work of the division and the Executive is the point that he makes; that there is no duplication and that they are working together for the same objective. What is that objective? It is about ensuring that we have a streamlined system and that delivery of public services across a range of issues is done in a way that is efficient, effective and gives us the best possible value for money.

Mitchel McLaughlin (Speaker, South Antrim)

Before we move on, I inform Members that questions 7 and 15 have been withdrawn.

Danny Kennedy (UUP, Newry and Armagh)

2. Mr Kennedy asked the Minister of Finance and Personnel why the report on the review of the financial process in Northern Ireland, which was approved by both the Committee for Finance and Personnel and the Assembly, has not been acted upon. (AQO 9610/11-16)

Mervyn Storey (DUP, North Antrim)

The report on the review of financial processes in Northern Ireland has not been discussed by the Executive, and without the Executive's agreement the proposals it contains cannot be implemented. Of course, one of the proposals in the paper related to departmental structures and, with the move to a nine-Department structure, this will have to be revisited.

Danny Kennedy (UUP, Newry and Armagh)

I am grateful to the Minister for his initial response, but he will know that it is now over six years since the report was forwarded to the Executive for action. Surely, by any standard, action should have been taken by now to improve a very cumbersome system that does not provide read-across and proper accountability. What steps is the Minister prepared to outline? He has indicated that, with the new number of Departments, there may be some changes. Change is necessary for proper accountability, and I think that the entire House will be anxious to see that.

Mervyn Storey (DUP, North Antrim)

I thank the Member for his supplementary question. When the House debated the Committee for Finance and Personnel motion on the review of the financial process some time ago, there was widespread support for the overall aims of the review, as the Member alluded to. That included Members from all the main political parties in the House.

As for the way in which we move this issue forward, some of that has been superseded by the creation of the new nine Departments. However, as we discussed regarding the Budget process, I want to see, in my time in office — and I trust that it would be the same for my predecessor — that we have a budgetary and financial process in the Assembly that is fit for purpose and gives us an overall view of what is going on in each Department in a way that gives us, as I said to the Member who asked the first question, efficient and effective delivery of government.

When I came into post, I was made aware that this issue had been around, as the Member rightly said, for a number of years. I would like to see progress on it, but I have to re-evaluate what has been done to date and see how best we can, if necessary, salvage many of the points raised when the issue was first brought to the House.

Conor Murphy (Sinn Féin, Newry and Armagh)

Go raibh maith agat, a Cheann Comhairle. I share the sentiments expressed by my neighbour Mr Kennedy in his supplementary question. I think that it is widely accepted that we have an unnecessarily convoluted and complicated budgetary process. Now the Minister seems to share that sense that things can be improved, and now that we have moved to nine Departments — if that was an obstacle at all, it is out of the way — can he perhaps consider giving some time frame for when there will be a serious look at the budgetary process? Let us get a streamlined one that Members can engage in more readily than the unnecessarily convoluted one that we have at the moment.

Mervyn Storey (DUP, North Antrim)

I thank the Member. Obviously, that will require not only myself as Finance Minister but also Members and the parties in the Executive to take collective responsibility, so that if the paper was to be put back to the Executive it would be given the due consideration that I believe it deserves. However, I take the view that, before that happens, we need to look at it again to see how it can be refined and how we can give the assurance, or at least the commitment, that we are creating a process that is transparent, gives us accountability, and delivers for us in the way that we have intended.

I also have to say that I do not want in any way to bring forward something that Ministers in the new Executive feel is an interference; I think that that may have been one of the issues that was to the fore in the past. Ministers who come to the Executive table should come with the attitude that we need to change the processes that we have and that we need more transparency across all Departments on how those financial processes operate, as that will give great confidence not only to the House but, more importantly, to the people who elect us to serve in this Chamber.

Alban Maginness (Social Democratic and Labour Party, Belfast North)

I note what the Minister has said. I also note the neighbourliness between Mr Murphy and Mr Kennedy, and long may it reign. In relation to the current financial process, the Minister talks about transparency. I do not see much transparency; I see a lot of opaqueness. Having been here for 18 years, I would like to see an improvement. Can the Minister guarantee that?

Mervyn Storey (DUP, North Antrim)

There may be some who will say that the Member should go to Specsavers, and then he might be able to have a bit more transparency. Maybe our budgetary process is a bit like the advert where the person responsible for clipping the sheep ends up clipping the dogs. However, I do agree, and I genuinely take the point. I saw this question when it was tabled, and it does raise serious issues about the entire process that we use. It has been raised, as I said, in terms of the budgetary process.

I came into post four weeks ago, and the way that we have to work through the budgetary process, as well as having all the arrangements with regard to the financial situation, is extremely challenging. I would say, however, that much of that is governed, of course, by Treasury rules. I always want to ensure that I tread carefully when dealing with the Treasury. Of course, your colleague from west Belfast always reminded me, when I was at DSD, that I was an employee of DWP, and I am sure that I do not want now to be accused of being a member of, or associated with, the Treasury in London. The serious point is this: now is the time for us to look at how we can make improvements, but it will depend on the commitment of all those parties that will be in the Executive post the election on 5 May.

Pam Cameron (DUP, South Antrim)

3. Mrs Cameron asked the Minister of Finance and Personnel to outline the financial assistance that the Executive are giving to the construction sector to increase the supply of domestic houses and high-quality office accommodation. (AQO 9611/11-16)

Mervyn Storey (DUP, North Antrim)

The Department for Social Development plans to deliver some 1,500 social homes in this financial year, at a cost to the public purse of £101 million. That funding is expected to lever in around £80 million of private sector funding. Support for affordable homes is also provided, primarily through the co-ownership scheme, with £95 million of financial transactions capital (FTC) being allocated in this financial year. That is expected to support up to 700 homes in each of the next four years.

As the Member will be aware, my officials are in the process of establishing an investment fund. The overall aim of the proposed fund is to promote investment, economic growth and jobs in Northern Ireland. The fund will seek to address access to finance markets where there has been failure. It is also expected that the fund's initial focus will be on urban regeneration projects, including grade A property, but energy efficiency and housing projects are also under consideration.

Pam Cameron (DUP, South Antrim)

I thank the Minister for his answer thus far. Will the Northern Ireland investment fund support office and private housing development?

Mervyn Storey (DUP, North Antrim)

In how we envisage this being rolled out, the Member will be aware that, when I was in DSD, I gave a commitment to ensuring that we would keep our focus clearly and specifically on the benefits that we would generate as a result of housing. Indeed, I was at the meeting of the all-party working group on construction today, at which I reiterated my personal view — in fact, I think that it needs to become a collective view of the Assembly — that, if we could unlock the potential that there is for housing, social and in the private sector, across Northern Ireland, we would make an invaluable contribution to our communities and to the construction sector.

The Member also asked about investment fund support for private housing. Housing is still under consideration in the context that the Executive are already providing significant support through the Department for Social Development's social and affordable housing schemes.

Pat Sheehan (Sinn Féin, Belfast West)

Go raibh maith agat, a Cheann Comhairle. What steps is the Minister taking to protect subcontractors who are involved in public-sector contracts, especially those working on projects that do not fall within the project bank account range?

Mervyn Storey (DUP, North Antrim)

I thank the Member for his question. In consultation with the construction industry, through the Construction Industry Forum for Northern Ireland (CIFNI), my Department has implemented a range of measures to promote access to small- and medium-sized government opportunities. Those include breaking larger contracts into lots to bring them within the scope of smaller businesses; requiring contracts that have a value above the EU threshold to have a procurement strategy that includes engagement with the supply base; increasing the opportunities for SMEs to bid for government contracts by setting proportionate minimum standards; and accommodating applications from consortia. We are doing a number of things.

I take the Member's point. As I reiterated today at the all-party working group, we can always do more. The focus needs to remain on trying to make legislation, EU rules and the rest of the suite of legislation for the sector as simple as possible, recognising the challenges that are out there. As we know, the construction industry has undoubtedly seen a particular challenge over the last number of years because of the downturn. It is not my place, nor do I think that it is the place of government, to put any more impediments in the sector's way. Rather, we need to continue to work with it and get positive outcomes that will help to sustain and grow what is a vital industry for Northern Ireland.

John Dallat (Social Democratic and Labour Party, East Londonderry)

I acknowledge the Minister's commitment to housing in his previous post and his present post. Can he give an outline of the extent of departmental assistance for those who want to avail themselves of the help-to-buy scheme in 2015-16?

Mervyn Storey (DUP, North Antrim)

I thank the Member for his question. Obviously, there are a number of schemes. I almost sound as though I have resorted to type here and am now the Minister for Social Development again. However, if you look at co-ownership, you will see that we used FTC money extensively to support that sector because that was the right thing to do. It was the right financial vehicle that we were able to use. I would, however, reiterate my concern. It really follows on from the Office for National Statistics (ONS), given what has happened on the mainland in relation to reclassification. That will bring a particular challenge to bear over the next number of months, as I believe that it is the intention of ONS to come to Northern Ireland as its first port of call when looking at the devolved regions. Clearly, I, along with my colleague Lord Morrow, will want to deal sensitively with that issue, but that is a reality that we will have to face, amongst many others, when it comes to the challenging environment that housing brings in Northern Ireland.

Alastair Patterson (UUP, Fermanagh and South Tyrone)

I thank the Minister for his responses so far. As someone who comes from a construction background, it was good to hear that we will give the assistance that is needed to the construction sector. I understand that financial transaction capital has been included in the Budget for the housing sector. Can the Minister advise whether that option is more favourable than the use of conventional capital for new housebuilding?

Mervyn Storey (DUP, North Antrim)

When you look at the financial resource that is available to us, you see that there will always be a challenge for the Executive and Assembly around maximising what is available and getting the best possible outcome. Clearly, FTC has come at a time when we are able to capitalise on it and use it. The investment fund and the work that we are doing with the European Bank to have that fund established will give us somewhere in the region of £100 million and will, I believe, focus specifically on the delivery of grade-A property in cities such as Belfast and other parts of Northern Ireland.

Those two financial tools are not the only ones. We should not restrict ourselves solely to two particular funds. We need to be innovative and look at what else we could do. The Member was present at the meeting earlier. He heard the concerns that were raised. We will continue to listen to the construction industry and others to see whether we have the right models in place and what else could be done to help that particular sector.

Gordon Lyons (DUP, East Antrim)

4. Mr Lyons asked the Minister of Finance and Personnel for an update on the review of the non-domestic rating system. (AQO 9612/11-16)

Mervyn Storey (DUP, North Antrim)

The review of the non-domestic rating system consultation exercise officially closed on 25 January. The Department did, however, allow respondents until the end of January, with the final response accepted by 5 February. The Department considers the consultation process to have gone well, with some 113 responses from organisations and individual ratepayers presenting a good outcome in the level of engagement.

DFP officials have also participated in a series of events organised by NICVA, NILGA and the Federation of Small Businesses. Officials have also held a number of individual meetings with key stakeholders throughout the consultation period. The Department is compiling a consultation report, summarising the responses. The report will be independently validated by the economic policy centre at the Ulster University. At the moment, I am reading my way through the responses. If you saw a particular file that sits on my desk with 113 tabs on it, you would know that that is my nightly homework.

Mitchel McLaughlin (Speaker, South Antrim)

Who marks his homework?

[Laughter.]

Gordon Lyons (DUP, East Antrim)

We will all be glad to hear that the Minister is keeping himself busy and has lots of work to get on with. Charity shops play a very important role in our country. However, many will argue that they dominate our high streets and main streets across Northern Ireland. What steps, if any, can be taken to ensure that that imbalance is addressed?

Mervyn Storey (DUP, North Antrim)

I thank the Member for his question. Let me say that we have to deal with the issue sensitively. I am well aware of correspondence that I have had and of the lobbying that there has been. When you come to this issue and begin to change the rules that govern rating, in particular, there is always the tendency to in some way go after one element that seems to be the easiest. However, my approach to this will be cautious and equitable. I have listened to the concerns of other retailers who have said that there are undoubtedly disparities and differences that need to be addressed. My commitment to the House today is that this will be looked at sensitively, given the nature of what we are dealing with in relation to charity shops.

Claire Hanna (Social Democratic and Labour Party, Belfast South)

I thank the Minister for his responses. I am glad you are enjoying the consultation responses. I have been reading some of them, and one disparity that people have noticed is between the rates bill for businesses here and comparable businesses across the water in Scotland, where many do not pay rates at all, and in the Republic, where a hotel, for example, might pay about a third of the rate it would pay here. What is the Minister's assessment of that differential, and is there anything that might be done to support traders here?

Mervyn Storey (DUP, North Antrim)

In making decisions on our system, we have to make them fit the circumstances in Northern Ireland. While there are many occasions when it is right to look at exemptions in other jurisdictions for certain reasons, I still think that we always need to remember that, in Northern Ireland, we are still, per head of population, in a better position with regard to the overall taxation of our people than other parts of the United Kingdom. However, that brings challenges. There are those who argue that we should maybe increase that burden. My party has taken the view that we are a low-taxation party, and we want to find a way — I underscore this — that is fair. It has to be fair.

There are many who came out of the revaluation recently who raised serious concerns about the way it was done. Part of the reason for that was the long time it took us to get to a revaluation. We have to now look at whether three years is the proper time. Is four years? Those are the things that are now all part of the mix when we look at our rating system. I will give serious thought to how it is done in other jurisdictions, but I will make the caveat that it has to be suitable to the needs of the people of Northern Ireland.

Máirtín Ó Muilleoir (Sinn Féin, Belfast South)

Go raibh maith agat, a Cheann Comhairle. Minister, it is midterm break, so there is no homework this week. That is the good news.

You mentioned the Ulster University Economic Policy Centre. Neil Gibson was with the Enterprise Committee this morning, and he is very strong on the concept that derelict land should be taxed and rated on the basis that it will spur economic regeneration. He used the example of Crossgar, where I do not go often enough, where there is an empty site in the centre of town that inhibits economic development in other shops. Are you minded at this stage to give any direction to the incoming Executive about derelict sites on our main streets and in our city centres?

Mervyn Storey (DUP, North Antrim)

I thank the Member. He raises a valid point about how we tackle the issue. We all know of locations in our constituencies where there are problems. The difficulty that we face and that the incoming Executive will face is that, as soon as you make a proposal to deal with it, there will be those who will be very inventive in finding a way around it. We have to give a broader view of the way in which that could be done so that we do not introduce a policy that has the right intent but ends up with unintended consequences. We saw that with vacant properties, when some went to extreme lengths to avoid paying the revenue due on those properties. It is a valid point and should be given consideration, but, as I said about charity shops, we have to deal with it sensitively and wisely so that the outcome reflects the intended policy.

Christopher Hazzard (Sinn Féin, South Down)

5. Mr Hazzard asked the Minister of Finance and Personnel whether structures for spectators within the grounds of a community amateur sports club, that does not have a licensed premises, will be exempt from rates. (AQO 9613/11-16)

Mervyn Storey (DUP, North Antrim)

I thank the Member for his question. Exemption from rates under the legislation would apply only to the parts valued as sporting facilities and used by persons engaged in a prescribed recreation. That is set out in primary legislation and cannot be adjusted through the new regulations being made by my Department in the area. That principle applies to the existing level of relief and to the proposed enhancement under my preferred policy of using the new enabling power in the Rates (Amendment) Bill.

It has been noted in exchanges with the Committee that the term "sports facilities" was unlikely to include stands. There is an exemption to that general rule where areas other than sporting facilities make up less than 20% of the total NAV. In such cases, that element of the NAV will be treated as de minimis and relief will be awarded on that area. In very general terms, it would be rare for unlicensed clubs to exceed that threshold. These issues will be outlined in greater detail in the Department's forthcoming consultation.

Christopher Hazzard (Sinn Féin, South Down)

I thank the Minister for his answer and look forward to the consultation. Does he agree that the consultation provides an opportunity to tackle the issue, especially when so many rural clubs have smaller stands that could be part of the changes?

Mervyn Storey (DUP, North Antrim)

Members and, maybe, the general public are always suspicious and sceptical of consultations because they believe that we have a predetermined outcome and are only ticking a box. In the Departments that I have had responsibility for, I have always believed that a consultation should be just that: genuinely listening to views and then evaluating the response.

The consultation will seek views on my preferred policy and aim to address the gaps in the consultation on the private Member's Bill. There were gaps — the Member is well aware of the process that we had to engage in — and they included seeking views from the wider business community, such as the hospitality sector. Those strongly held views were largely omitted from the private Member's Bill consultation, so I want to ensure that this consultation is as wide and as informed as possible. That will give us the opportunity to ensure that we get the right outcome.

Leslie Cree (UUP, North Down)

The Minister will be aware that spectator space is currently rated, but certain sports clubs appear to enjoy rates relief despite the fact that they are licensed. Is that correct?

Mervyn Storey (DUP, North Antrim)

Yes, some relief is given. The Member will be glad to know that, later this afternoon, I am meeting a variety of clubs and organisations that want to talk to us specifically about this issue. As soon as you move to look at a particular element of the rating system, you can be absolutely sure, as the Member knows from his colleagues in the pigeon fraternity, that a gathering, a collective or a flock will circle you and ask, "What does this mean for us? Why are we not included?". I want to ensure that we listen to the consultation. I will, I trust, be able to give the Member a more informed answer after my meeting with clubs and federations this afternoon and, ultimately, when we get the consultation responses.

Mitchel McLaughlin (Speaker, South Antrim)

That brings us to the end of the period for listed questions. We now move on to topical questions.

Declan McAleer (Sinn Féin, West Tyrone)

T1. Mr McAleer asked the Minister of Finance and Personnel whether he is satisfied that enough legislative progress has been made on the A5 scheme to allow for its projected spend, following the very welcome news in the recent Fresh Start Agreement, which announced it as a flagship project, with £229 million allocated over the next number of years. (AQT 3501/11-16)

Mervyn Storey (DUP, North Antrim)

I thank the Member for his question, and he is right. The Minister for Regional Development announced the start of the consultations on the new draft statutory orders and a new environmental statement for the A5 western transport corridor dual carriageway scheme just a few days ago. Subject to successful completion of the statutory procedures, construction work is due to commence next year on the £150 million Newbuildings to north of Strabane section of the road. I think that that is a clear indication. The Executive and Assembly have been criticised in the past for not making decisions, and we are criticised when we make decisions. However, here is a clear example of a considerable degree of investment that is being made. We also have identified this particular route in relation to one of the flagships, and we have profiled the capital over the next number of years. Am I satisfied? As the Member will know, there were particular problems that were outside of our control, however we have now given a commencement and, I believe, the green light to this process. I think that that is evidence that, when you have a DUP Minister in charge of the roads, there is progress.

Declan McAleer (Sinn Féin, West Tyrone)

Go raibh maith agat. I thank the Minister for that answer. No doubt the Minister will welcome the proposals for the land acquisition Bill. He referred to the fact that phase 1 will cost in the region of £150 million. That leaves a surplus of £79 million. Is it envisaged that that will be used to commence some of the future phases?

Mervyn Storey (DUP, North Antrim)

We have to get the current process under way. This is important, so I want to place it on the record of the House, and I am quite happy to make this available to Members: Land and Property Services has published three very helpful booklets on compensation in regard to domestic, agricultural and other classes of property. These are available online via my Department's website or in hard copies that can be obtained by contacting LPS. I am sure that the Member, like other Members in the locality, will be asked questions around the issue, particularly regarding compensation. It is an issue that is associated with projects such as this, and, as Minister with responsibility for Land and Property Services, I want to ensure that this is done in an effective and efficient way and that landowners' rights are protected under statute when property is vested and they will receive full compensation for their loss based on the principles that are set out in those documents. I encourage Members to become aware of those and to make them available to landowners in the area and to the general public who have an interest in this issue. I trust that we will continue to see progress on what is an important infrastructure project for Northern Ireland.

Ian McCrea (DUP, Mid Ulster)

T2. Mr I McCrea asked the Minister of Finance and Personnel, given that he will know that his party is a low-tax party, for an update on the benefits of industrial derating to Northern Ireland businesses. (AQT 3502/11-16)

Mervyn Storey (DUP, North Antrim)

I thank the Member for his question, and he is right. I have already alluded to that in an earlier answer. The Member will also be aware that my predecessor previously stated on a number of occasions that industrial derating will continue and that there are no plans to remove that support for manufacturing. That support provides a valuable boost to manufacturing; a sector that, while growing in Northern Ireland, has had its particular problems and difficulties in the past. To put it into some context, the relief is of the magnitude of some £58 million a year, helping some 4,300 businesses a year, and is already committed to in the 2016-17 Budget.

Ian McCrea (DUP, Mid Ulster)

That is certainly welcome news, and it will no doubt be more than welcome news for the business fraternity. Whilst the Minister has said that that is the case, can he give a 100% assurance — it is maybe difficult to do that — that there will be no changes to industrial derating and that, as this party is a low-tax party, as I have said, that assurance will go forward into the new Assembly term?

Mervyn Storey (DUP, North Antrim)

I am glad that it is a colleague asking that question and not one of my political opponents. I can say without fear, favour or contradiction that, as far as we are concerned, there are no plans to remove that support, which I see as being key; I can confirm that. I underscore this: industrial derating is a key element in sustaining our manufacturing base in Northern Ireland. I have no doubt that, should there be any move to remove it, there would rightly be opposition from many in the manufacturing sector. I want to allay any concerns, doubts or fears: there are no plans to remove that support.

George Robinson (DUP, East Londonderry)

T3. Mr G Robinson asked the Minister of Finance and Personnel to list the flagship projects that received capital funding in the latest Budget. (AQT 3503/11-16)

George Robinson (DUP, East Londonderry)

The Minister may have touched on my question in his response to the first topical question.

Mervyn Storey (DUP, North Antrim)

I thank the Member for his question. The Budget, which is still going through the House, sets out a number of elements in relation to spending plans for 2016-17. The nature of some capital projects means that it is important to provide funding certainty to Departments. I think that that may have been an issue of concern in the past. The seven projects and the amounts to be allocated over five years are as follows: £229 million for the A5; £258 million for the A6; £59 million for the Belfast rapid transit project; £122 million for the Belfast transport hub; £243 million for the mother and children's hospital; £79 million for Desertcreat training college; and £91 million for regional and subregional stadia. I think that that gives a clear commitment to capital investment and shows how the Executive will spend capital money in a planned and focused way.

Mitchel McLaughlin (Speaker, South Antrim)

I call Mr Robinson for a supplementary question. Can you use the microphone please, as that would help us.

George Robinson (DUP, East Londonderry)

I thank the Minister for his answer. I want to ask him about the A6, which will reduce commuting times between East Londonderry and Belfast and, indeed, eventually provide a much-needed bypass for Dungiven. When does he expect that project to go ahead?

Mervyn Storey (DUP, North Antrim)

Well, they say that all politics is local. The two major elements of the road project to improve the A6 are the Randalstown to Castledawson section and the Londonderry to Dungiven section. The A6 Randalstown to Castledawson dualling scheme is a significant project and will help to remove a major bottleneck, improving safety and journey times on that strategically important route. The development of the A6 Londonderry to Dungiven section, which includes a bypass at Dungiven, is well advanced. It has been through a public inquiry, and the inspector has produced a report embracing various recommendations. DRD has prepared a report addressing those recommendations, and the Minister for Regional Development is considering them in full and will then take a decision on how the scheme should proceed.

Paul Girvan (DUP, South Antrim)

T4. Mr Girvan asked the Minister of Finance and Personnel for an update on the creation of a fund to distribute money from dormant bank accounts. (AQT 3504/11-16)

Mervyn Storey (DUP, North Antrim)

I thank the Member. The issue has been raised in the House in the past. The name will change. It was originally known as the dormant bank accounts scheme, but it will become the community finance fund. I think that that is the trajectory that we are setting for ourselves.

I wish to inform the House and the Member that I have written to Executive colleagues, advising that I will now publish a Northern Ireland community finance fund. The fund will utilise moneys made available to Northern Ireland from the UK-wide reclaim fund and will be utilised and distributed as set out in the Dormant Bank and Building Society Accounts Act 2008. The intention to establish a fund was announced as part of the Budget in 2015-16 under the working title of the social innovation fund. Through the creation of a community finance fund, I believe that the Northern Ireland Executive can improve access to finance for a range of organisations across the third sector, including social enterprises, church groups and smaller community-based organisations to make further investment in their activities, grow their organisations and, more importantly, become self-sustaining. The investment will enable such organisations to increase their relevance, revenue and capability of resource, as well as the level of social benefit that they deliver to their communities.

Paul Girvan (DUP, South Antrim)

I thank the Minister for his answer. In relation to the information that we have received, can we have a timetable as to when we would expect to have some of those funds rolled out?

Mervyn Storey (DUP, North Antrim)

As required under the Dormant Bank and Building Society Accounts Act 2008, my Department will now direct the Big Lottery to develop a strategic plan for the utilisation of the funds in Northern Ireland. The strategic plan will be laid before the Assembly, and the fund will be distributed by a third party appointed by the Big Lottery. However, it should be noted that the dormant accounts funding is separate and distinct from Big Lottery funding. I expect the fund to be operational by late 2016.

I want to pick up on that point in relation to the use of the Big Lottery. There are many organisations that, in the past, have felt that, for the right reasons, they could not access lottery funding. This will only be administered through the way that it has been set up nationally, which is through the Big Lottery, but we will have a third party, and I believe that that will give confidence to many organisations that they will now have additional access to a funding stream that, in the past, they might have felt they could not access.

Mitchel McLaughlin (Speaker, South Antrim)

Question 5 has been withdrawn within the appropriate timescale.

Alban Maginness (Social Democratic and Labour Party, Belfast North)

T6. Mr A Maginness asked the Minister of Finance and Personnel whether there has been any improvement in the unemployment figures in the North Belfast constituency. (AQT 3506/11-16)

Mervyn Storey (DUP, North Antrim)

I thank the Member for his question. Unemployment figures are always a challenge for all of us in the House. We all have to realise that it is a challenge, and none of us knows the intention of organisations or companies in the employment market. Many factors are brought to bear on that issue. I recognise that North Belfast is an area where there are particular economic and social challenges, but the number of individuals claiming unemployment benefit in North Belfast peaked at over 5,700 in February 2013. However, over the last three years, there have been steady improvements in the local labour market, with the number of individuals claiming unemployment benefit there cut by almost half by the end of 2015, which is down some 42%. I welcome that positive progress. However, we need to remain focused and vigilant on that issue.

Alban Maginness (Social Democratic and Labour Party, Belfast North)

I thank the Minister for that good news in relation to unemployment in North Belfast, but we still have a particular problem with economic inactivity. Does the Minister have any indications as to the level of economic inactivity in North Belfast? Has there been an improvement? What is the situation?

Mervyn Storey (DUP, North Antrim)

I do not have the specific figures with me, but I will quite happily provide them to the Member. What I will say is that we have endeavoured to address the issue in a number of ways. One way in particular has been to look at how we can encourage further and higher education to focus on skills, and I committed an additional £20 million to ensuring that the issue of skills is looked at. We need to continue to work with our education system and other government agencies in a very coordinated way to address the very challenging situation that is the overall figure for young people who are in neither full-time employment nor training. We have to address that problem. Some steps have been taken, but more progress needs to be made.

Mitchel McLaughlin (Speaker, South Antrim)

Thank you very much, Minister. That is the end of questions to the Minister of Finance and Personnel.

Oral Answers to Questions — Health, Social Services and Public Safety

Sandra Overend (UUP, Mid Ulster)

1. Mrs Overend asked the Minister of Health, Social Services and Public Safety what proportion of patients waiting longer than 13 weeks to access psychological therapies were waiting to access adult mental health services. (AQO 9624/11-16)

Simon Hamilton (DUP, Strangford)

As at 31 December 2015, 50% of patients who had waited longer than 13 weeks to access psychological therapies were waiting to be seen by adult mental health services. The equivalent figure on 31 December 2014 was 64%. Therefore, although the figure is clearly too high and further work is needed, I am pleased to say that we have been able to make some progress in addressing the pressures on our adult mental health services waiting lists. As part of that work, I recently allocated £1·6 million to the Health and Social Care Board (HSCB). That will provide a much-needed boost to the provision of specialist mental health/psychological services for individuals with complex mental health problems and directly enhance services to help general practitioners avail themselves of talking therapies for patients with depression.

Sandra Overend (UUP, Mid Ulster)

Thank you. The available figures are very concerning, and the Minister referred to them. I could ask half a dozen questions about the figures. Almost half of all patients — some 569 patients — who were waiting longer than 13 weeks to access psychological therapies at the end of November 2015 were in the South Eastern Trust area; 92% were waiting longer than 13 weeks for mental health services in the Southern Trust area; and 56% were waiting longer than 13 weeks in the Northern Trust area. It is difficult to define those figures for Mid Ulster specifically, but they are concerning. Will the Minister advise whether he has identified specific problems in various trust areas?

Simon Hamilton (DUP, Strangford)

I agree and accept the point that the figures for the length of time over 13 weeks that people are having to wait for psychological therapies and adult mental health services that the Member has specifically enquired about are not acceptable and are worrying. I am happy to look at whether we can furnish the Member with more specific information about her constituency or, indeed, some subset of the Western Trust area.

Sandra Overend (UUP, Mid Ulster)

The Northern Trust as well.

Simon Hamilton (DUP, Strangford)

The Northern Trust area as well. There is obviously a range of pressures, not just in that area of the Department and the health service's work but in a range of different areas.

It is not that I do not recognise that there is an issue or that I am saying that there is not a problem in the area. It is also not the case that we are not seeing some improvement year-on-year. As I mentioned in my answer, 64% of patients were waiting longer than 13 weeks in December last year, and that has now fallen to 50%. I am not saying that that is in any way an acceptable level, but it is a measure of some improvement and reflects some additional investment that has gone into the area, particularly through the creation of talking-therapy hubs in many parts of Northern Ireland, including in areas that cover the Member's constituency.

I mentioned some investment, particularly the £1·6 million that went into making sure that we were delivering what are referred to as directly enhanced services, which are about 12,000 sessions that are done a year, particularly counselling sessions with those who are suffering from depression. There are a lot of things going on.

The Member asked specifically about spaces and perhaps blind spots in particular trusts areas. I am happy to reflect on that and come back to her with any details that I might have.

Sammy Douglas (DUP, Belfast East)

By how much has spending on mental health services in Northern Ireland increased since the publication of the Bamford report?

Simon Hamilton (DUP, Strangford)

I thank the Member for his question. Over the last number of days, as a result of both criticism of mental health services in England and investment in mental health services in England, an interesting public debate, led in part by the Prime Minister, has been going on. This has, again, brought to the fore the need to discuss mental health and try to destigmatise it. In an earlier debate today, Mr McCarthy referred to mental health services as having been for many years the "Cinderella service" of the health service. That is a reasonable description.

I am not saying that we have, by any means, made everything perfect or right, but the Bamford review and report and the recommendations that flowed from it were a watershed moment, in many respects, for mental health in Northern Ireland. It will be a long and probably quite slow and, at times, frustrating journey to make the vision in the Bamford report into a reality. What is significant is that, since that report, we have increased expenditure on mental health services by over a quarter, from roughly £200 million annually to a quarter of a billion pounds. It is significant that there has been a switch away from spending money on looking after people in hospitals or in institutions, many of which were no longer fit for purpose, to spending it in communities. Before Bamford, in 2004-05, we were spending 46% of that money in a community setting, but that has now increased to about 57%. That is as significant as any increase in expenditure would be. We are spending the money looking after people in their community and close to their home and their family.

Pat Sheehan (Sinn Féin, Belfast West)

Does the Minister agree that the appointment of a mental health champion, as recommended by Action Mental Health and others, to promote the rights and the interests of people with mental health problems here in the North would go a long way to improving the affairs of those with mental health problems? Go raibh maith agat.

Simon Hamilton (DUP, Strangford)

I thank the Member for his question. I am aware of the suggestion that has been made by Action Mental Health and other mental health charities in recent times. To be honest, I have not met the range of charities to discuss the proposal and hollow out what they mean by a "mental health champion" and what that person might specifically do. I am happy to have that discussion and am sure that Members will encourage me in doing that. We need to be careful of appointing someone into a role that would cover everybody with mental health conditions in Northern Ireland. There is a breadth of mental health conditions for which people are already receiving support through, for example, the work of the Victims' Commissioner, the Commissioner for Older People or other public bodies and appointees. We need to make sure that this would improve the situation rather than confusing things and adding to the myriad commissioners and champions that we already have across the public sector.

Andy Allen (UUP, Belfast East)

2. Mr Allen asked the Minister of Health, Social Services and Public Safety how many outpatients have been waiting longer than 52 weeks for their first consultant-led appointment. (AQO 9625/11-16)

Simon Hamilton (DUP, Strangford)

Provisionally, at the end of December 2015, 32,544 patients were waiting longer than 52 weeks for a first outpatient appointment. I wish to make it clear that I find those figures totally unacceptable. It is regrettable that more people are waiting longer due to the financial constraints that led to the decision to suspend independent sector and additional in-house activity last year. It was extremely frustrating that, this year, £9·5 million from Northern Ireland's public finances was being lost to Westminster each and every month as a result of welfare reform being blocked. Such a sum could have funded many thousands of assessments and procedures. However, I welcome the allocation of an additional £40 million from the November monitoring round that will go towards tackling waiting lists. I expect this to benefit the many thousands of patients who would otherwise be waiting.

Since November, significant efforts have been made across the health and social care system, within a very tight time frame, to secure additional outpatient clinics and treatments in trusts and to put in place appropriate arrangements with independent sector organisations to transfer suitable patients for assessment and/or treatment. Of course, this is just a start, and much more additional funding will be needed to get us back to where we were. However, we are now moving in the right direction, and I hope that patients, particularly those waiting the longest, will see the benefit of this as soon as possible.

Andy Allen (UUP, Belfast East)

I thank the Minister for his answer. The number of patients waiting beyond the maximum of 18 weeks is shocking, so those waiting longer than 52 weeks are being wholly failed. Does the Minister share my concern that the patients waiting longer than the 18 weeks are being forced into a situation where they may be put at greater risk?

Simon Hamilton (DUP, Strangford)

I repeat the point that I made in my original answer to the Member: I do not find the waiting lists acceptable. They are far too long, and I look to the board and particularly the trusts to deal with the very long waiting lists that they have. To be fair, this has been occurring against the backdrop of various things that have been happening, not least the pretty significant increase of 14% in the last number of years in referrals for outpatient appointments. There has been a huge increase in that at the same time as the budget of my Department has been under pressure.

I do not find the waiting lists acceptable, but neither did I find acceptable the fact that we were losing tens of millions of pounds every month because of our failure — I am sorry: the failure of some to move forward with welfare reform. The Executive lost around £200 million from their coffers over the last three years because of our inability to agree welfare reform legislation in this place. Whilst I do not think that my Department would have had dibs on all that money, if we had had our share commensurate with the rest of the Budget, which would have been close to half, we would have made a significant dent in those waiting lists.

It is interesting, when you look at the figures, to note that we had been making significant and positive progress on eating into waiting lists over the last number of years. They went decisively in the wrong direction, I have to say, around the time when the tap for the independent sector contract and the ability to fund more in-house activity was turned off by my predecessor because of the difficult financial circumstances he found the Department to be in.

I do not find the waiting lists acceptable, but they are another example, I hope, of where we are now thankfully investing some £40 million to help between 60,000 and 70,000 patients. I expect the Member and his constituents and, indeed, other Members and their constituents to start seeing the benefits of that. If they have not already started to see them, they should start to very soon.

Maeve McLaughlin (Sinn Féin, Foyle)

Go raibh maith agat, a Cheann Comhairle. I take issue with the Minister's analysis of the impact of welfare reform; indeed, the ultimate result of the approach of some in his party is that they would make more people sick. I want to ask specifically about waiting times: will the Minister consider the imposition of the referral-to-treatment targets that have been put in place in other countries?

Simon Hamilton (DUP, Strangford)

The Member may take exception to what I said, but I certainly take exception to what she said about the approach of the DUP or, indeed, that of any other party in the House in seeking to move forward on welfare reform legislation that we were not necessarily happy with either. We fought the fight at Westminster against it when others were absent and then sought to deliver the best possible deal for Northern Ireland. I do not accept the criticism that that has made people sick. I do not want to get into some sort of argument with the Member opposite about the fact that they ultimately signed up to that welfare reform legislation. We have at least now moved forward and beyond that, hopefully, and that has freed up a welcome injection of £40 million into waiting lists in Northern Ireland, which, as I said, will ensure that some have already got their treatment, some are getting their treatment and some will get their treatment in the next number of weeks. Between 60,000 to 70,000 patients across a range of specialisms will get the help and care that they need.

I am content to consider ways in which we can look at targets. Targets are important, but sometimes we focus a little too much on them and not enough on the qualitative rather than the quantitative aspects. I am content to have a conversation and to consider targets that other jurisdictions have to see what they have put in place, what impact they have had and whether they are a more accurate measure of the reality of the situation. I am not saying specifically that that is the case in this instance, but a lot of the targets that the health and social care system has to achieve are not always up to date or clinically that beneficial. I am more than happy to have a conversation and to look at other ways in which we might measure targets for waiting times.

Alex Easton (DUP, North Down)

How many patients are being helped by the investment of £40 million in waiting lists, and does the Minister feel that the work of the expert panel will result in more timely access to procedures and appointments?

Simon Hamilton (DUP, Strangford)

I thank the Member for his question. I think that, in my initial public pronouncements on the £40 million of expenditure, I underestimated the number of people who would receive outpatient appointments, as well as the number of inpatients, day cases and other treatments. I said that up to 40,000 people might get outpatient appointments, with about 15,000 getting treatments, but it looks like it will be a much higher number: between 60,000 and 70,000 patients across a range of specialisms. As I said, it will include outpatients, inpatients and day cases.

There will also be allied health professional activity, so people will get appointments with physiotherapists, occupational therapists and others, and there will be many diagnostic tests, scans and so forth. There is a range of specialisms and activities that some 60,000 to 70,000 people will benefit from. That will by no means solve the problem, but a sizeable chunk of it will be dealt with. Obviously, more people will join waiting lists in the intervening period, and that is why it is incredibly important that we continue to keep up that level of investment in elective care into the next Budget period.

The expert panel will not look at this issue particularly. This is a significant week for the panel and its work: we have our summit tomorrow, and I hope that that might find a way forward through an agreed set of principles. I hope that the outcome of all that work is that we agree to create not only a better but a more efficient health service in Northern Ireland. I think that the panel, in looking for efficiencies, should look at how we can better deliver the elective care that our population needs. If we had a more efficient system, it could be done much better.

Pam Cameron (DUP, South Antrim)

3. Mrs Cameron asked the Minister of Health, Social Services and Public Safety for his assessment of the uptake of cervical screening. (AQO 9626/11-16)

Simon Hamilton (DUP, Strangford)

I am pleased to say that, over the past ten years, there has been an increase in cervical screening coverage rates in Northern Ireland. In 2005, the coverage rate was 71%; by 31 March 2015, the rate was 77%. The target coverage for cervical screening is 80%, and, for some age groups, that is being met. Work is ongoing to improve the uptake in all age groups by promoting and supporting informed decision-making. It is vital that people participate in cancer screening programmes when invited, because they are important public health initiatives aimed at reducing deaths from cancer in our population.

Pam Cameron (DUP, South Antrim)

I thank the Minister for his answer and welcome the statistics. Will the Minister introduce HPV testing as a primary screening test for cervical cancer? Will he outline his position on women under the age of 25 who present at their GP with concerns and, perhaps, symptoms, and request a cervical smear test?

Simon Hamilton (DUP, Strangford)

I thank the Member for her question. I know that she has long taken an interest in and been a champion of this issue. In January, the UK National Screening Committee, from which we take advice on screening matters, recommended the introduction of human papillomavirus testing as the primary screening test for cervical cancer, and the Public Health Agency in Northern Ireland has undertaken a scoping exercise on its introduction. We will assess its findings as part of the scoping exercise, and I hope that this work will come forward with conclusions very soon. I hope that we will also introduce the HPV test, which would be good news for people in Northern Ireland.

I think that the position of women under the age of 25 has changed recently, although the Member will be more familiar with this than me. It used to be that those aged 20 or over would get a smear test, but that rose to 25. Scotland reduced the age to 20, but I understand that it is also going back up to 25. It may be worth saying that, if GPs are worried about exceptional cases — there will always be exceptional cases of people who present with abnormalities — they can and should, if they deem it clinically appropriate, contact their local screening laboratory to arrange a screening test. In essence, what I am saying is that no one under the age of 25 who has concerns about abnormalities should fear going to their GP and presenting their symptoms. They can get cervical smear tests performed, even though they are under 25, because the doctor has clinically decided that that is appropriate given their set of circumstances. It is just the case that we will not be doing that, universally, for everybody under 25. However, in cases where people present themselves and their GP thinks it appropriate, they can get smear tests.

Mitchel McLaughlin (Speaker, South Antrim)

Brilliant timing, Minister, just on the two minutes.

Rosaleen McCorley (Sinn Féin, Belfast West)

Go raibh maith agat, a Cheann Comhairle. The Minister referred to raising public awareness, which is very important in cases like this, as in all cases. Will the Minister give us some more detail about what the public awareness campaign might look like?

Simon Hamilton (DUP, Strangford)

When I saw the question come forward from Mrs Cameron, I was interested in that as well. How well are we advertising the need for people to go for their tests when called for? It is good to see that there has been an increase, but we are still not quite at the 80% target. There are some age groups that are well in excess of that target; in particular, younger people of around the ages 25, 30 and 35 are now exceeding the 80% target.

A range of advertising and promotional work goes on, which is monitored on a regular basis by the Public Health Agency (PHA). It involves the usual things that you would expect: information leaflets, videos and a dedicated website. Focus-group work has been carried out with those who attend and also with those who do not, particularly, to find out why they do not attend and what we can do to further tailor the service and make sure that any fears or concerns that they might have are alleviated. One interesting piece of work that the Member might be interested in is that the PHA has been working with the Women's Resource and Development Agency to particularly target those groups that have lower rates of attendance for tests, in order to see what the particular issues are and what can be done, through that network, to get more people to come forward.

At the end of the day, this is an exceptionally important public health message. We are not doing these tests just for the sake of it; this is about saving people's lives, and we will make every effort that we possibly and reasonably can to increase the uptake of the tests because they are so critical.

Dolores Kelly (Social Democratic and Labour Party, Upper Bann)

I thank the Minister for his answer, and I am sure that, like me, he laments the loss of the late Una Crudden who was a great advocate of cervical screening. In relation to the vaccination programme in schools, what has the uptake been like among young women?

Simon Hamilton (DUP, Strangford)

I do not think that I have information about what is happening in schools. It may be something that the Minister of Education has better information on. I am certainly happy to go away, get that information and give it to the Member in due course.

As with a lot of public health messages, the earlier, the sooner and the younger people get the message — in an appropriate manner, because we do not want to scare people unnecessarily, particularly young people — that looking after your health in every aspect is incredibly important, the better. I am very keen to work with schools, and the Public Health Agency does that in a range of ways, as do the board and the trusts as well. I am happy to come back to the Member with any information that I might have, or, if it is in the domain of the Minister of Education, I will ensure that he passes it to the Member.

Alastair Ross (DUP, East Antrim)

4. Mr Ross asked the Minister of Health, Social Services and Public Safety what advice he is providing in relation to the Zika virus. (AQO 9627/11-16)

Simon Hamilton (DUP, Strangford)

The Public Health Agency is leading the response to the Zika virus in Northern Ireland. It issued advice to health professionals in December 2015 and again in February of this year. The PHA also issued a press release in early February giving advice to pregnant women, as well as providing up-to-date information on its website.

It is important to note that the Zika virus is an infection transmitted by mosquitoes that are not native to Northern Ireland and, therefore, the public health risk posed by the Zika virus in Northern Ireland is extremely low. It is no greater than the risks posed by other mosquito-borne infections such as malaria, for example. Almost all cases of the virus are acquired through mosquito bites and not through human-to-human contact, although a very small number of cases have occurred through sexual transmission. At the moment, the key actions for Northern Ireland are to ensure that travellers to and from infected areas, especially pregnant women, receive appropriate advice and that clinicians are aware of the symptoms and, where appropriate, the actions to be taken for returning travellers.

Alastair Ross (DUP, East Antrim)

Obviously, it is something that has caused a great deal of concern across the world, and we have seen the images of the horrific outcomes of the virus. What specific advice is the Department offering those who find themselves travelling to South America on the steps they can take to make sure that they are protected?

Simon Hamilton (DUP, Strangford)

The Public Health Agency is understandably and rightly advising people, in particular pregnant women and those planning pregnancy, to consider avoiding travel to any country or area where Zika virus outbreaks are reported. Outbreaks have been reported in a number of countries in south and central America, and all travellers to affected countries should ensure that they seek travel health advice from their GP or, indeed, a travel clinic well in advance of their trip.

A possible link between exposure to the Zika virus during pregnancy and microcephaly and other congenital malformations has been identified and is being investigated. Women returning from the affected countries should avoid getting pregnant for 28 days. Anyone who has been in an affected country needs to be particularly mindful of the signs and symptoms of the infection and, if necessary, contact their GP, who will offer the appropriate advice. Updated advice on the Zika virus can also be accessed though the Northern Ireland Direct and PHA websites, and I encourage anybody who is travelling to those areas to consider that advice very carefully.

Fearghal McKinney (Social Democratic and Labour Party, Belfast South)

Of course, there were two cases in the Republic. What conversations is his Department having with colleagues in the Department of Health in the South to ensure full protection on the island?

Simon Hamilton (DUP, Strangford)

It is standard practice in such situations — it does not matter what the virus, condition or illness might be — for officials in my Department to be in touch, as they have been in this case, with their counterparts in the Department of Health in Ireland to ensure that any queries regarding the issue are discussed as required. It is important to stress that it is not a Northern Ireland response or an Ireland-wide response that is required: this is international. The response of the UK, as a whole, is being led by Public Health England (PHE). The Public Health Agency's health protection service is working very closely with colleagues in Public Health England and contributes to the twice-weekly teleconferences organised by Public Health England. The Public Health Agency, as I said, has also been in touch with the Health Service Executive in the Republic of Ireland to ensure that appropriate guidance and information is disseminated on both sides of the border.

Chris Lyttle (Alliance, Belfast East)

5. Mr Lyttle asked the Minister of Health, Social Services and Public Safety to outline the terms of reference of his Department's review of the statutory care homes process. (AQO 9628/11-16)

Simon Hamilton (DUP, Strangford)

Following the decision made by Four Seasons Health Care to close some nursing homes, I asked the Health and Social Care Board to halt and review the current process examining the future role and function of statutory residential care homes as a precautionary measure. I want to develop a broader understanding of the issues facing the residential and nursing home sector and their implications before making any final decision on the future of statutory homes. It is also right to pause, reflect and give careful consideration to issues arising in the independent sector.

The terms of reference for the review are as follows: to re-examine the proposals for closures in the light of the emerging challenges facing the adult care sector in particular; to consider issues around capacity, accessibility, quality and sustainability, which will include reconsideration of the local needs assessment exercises that informed the original proposals for change; to consider whether sufficient independent sector capacity can be identified to ensure a secure supply of appropriate places on a regional basis to meet demand; to consider the timing of any proposed closures, with particular reference to the current perceived instability in the market; and, finally, to consider whether there is a requirement to review the current position on admissions as a means of addressing current challenges in the care sector.

Chris Lyttle (Alliance, Belfast East)

I thank the Minister for his helpful update. Can he go into any more detail on his review of the sustainability of the independent residential and nursing home sector, including issues such as trust aid, staff costs and nurse shortage? Can he also advise the House when he will report on the review and how many of the 254 older people affected by the closures have been appropriately resettled to date?

Simon Hamilton (DUP, Strangford)

There were quite a few questions asked in that one. The Member beside him might welcome the fact that I am on to question 5, although I am now being held back by the seven or eight questions asked by Mr Lyttle.

The last issue — how it directly affects individuals — is probably the most important one. Our trusts have done quite good work in coordinating with residents and their families to ensure that their transition to new accommodation is smooth. Everyone has now moved from one of the homes in the Member's constituency — I think it is the Victoria Park Care Home — to appropriate accommodation. I am sure that nobody wanted to move away so I am unwilling to say that they were content to move, but everybody has found appropriate accommodation. Work is ongoing in many of the other homes as well.

It is critical that, as well as looking at statutory residential care homes and doing the work that I outlined in my initial response, we take some time to look at the independent sector and what is happening there. That is why I commissioned work to look at the market stability of the sector and any threats to it. That will examine a range of issues including nursing and the overall viability of many of those businesses. I have responded to those pressures in recent times by announcing a further investment of £1·6 million in the care sector in this financial year. That goes in two ways: a 2% increase in the rates paid to domiciliary care companies and £11 a week more for every resident who has been placed in a home by a trust. I know that that will not solve all the problems, but, hopefully, it will bring further stability to the market, deal with some issues, particularly staff retention, and move us to a more stable position in the future.

Mitchel McLaughlin (Speaker, South Antrim)

We now move on to topical questions.

David McNarry (UKIP, Strangford)

T1. Mr McNarry asked the Minister of Health, Social Services and Public Safety to detail the impact that his usage of the private sector will have on reducing waiting lists for people who are in pain and awaiting a hospital procedure. (AQT 3511/11-16)

Simon Hamilton (DUP, Strangford)

I thank the Member for his question. Some in the House and in this country turn their nose up at the use of the independent sector to help to deal with issues such as our unacceptably long waiting lists. I know that the Member is not one of those, and neither am I. As I said in response to an earlier question, we have been using the £40 million that we got through the November monitoring round to treat 60,000 to 70,000 more patients in a range of ways. Obviously, we want to maximise the output from inside the health and social care sector. There will be 9,000 more outpatient appointments, around 1,000 more inpatient day cases, 15,000 more allied health professional physiotherapy and occupational health appointments and 13,000 more diagnostic tests.

We have, however, been relying quite significantly on the independent sector. It has been awarded 27,000 contracts for outpatient appointments and 8,000 inpatient appointments. Patients have now been referred for all of those, so all those appointments are being taken up. Many people have been seen already, some are being seen and some will be seen in the weeks ahead. Whatever people might think about using the independent sector, the fact is this: without that additional capacity, over 30,000 people who required outpatient appointments or inpatient procedures would not have been able to get them. I do not think, in the circumstances in which we find ourselves, that it would have been acceptable to do anything other than use the independent sector to deliver those much-needed appointments for over 30,000 people in Northern Ireland.

David McNarry (UKIP, Strangford)

I suspect that most if not all people in pain do not give a toss or care who does the procedure at the end of the day. Will the Minister tell the House what the cost differences between the private sector and the public sector work out as? Will he say why, he believes, the spare capacity in the private sector is sitting there and not being matched by the NHS? Minister, why do we have the worst record for stillbirths, as reported on the news today? Is that anything to do with a lack of resources?

Simon Hamilton (DUP, Strangford)

I will deal with the first points first and then come on to the other issue. Sometimes, there is a misconception: people who are opposed to using the independent sector will use words like "profiteering" as if it is a bad thing to make a profit in this society. However, in these circumstances, the independent sector is not paid any more for an operation than what it would cost to provide the same operation in the health and social care system. That important point is very often missed or ignored by some who criticise the use of the independent sector. Clearly, the independent sector has a much more efficient model.

There are particular pressures on the health and social care system that make it difficult to get to that level of efficiency, but, as I said in response to Mr Easton, I hope that some of the changes and reforms that we envisage through the work of the panel will allow us to produce an even more efficient system that allows us to get up towards the level of efficiency that the independent sector provides.

The issue of stillbirths has been in the media for the last number of days. It has not been treated in all areas of the media with the sensitivity that it should be. Every stillbirth, whatever the circumstances, is a tragedy for the family and parents involved. Some sort of contrived league table has been produced by some in the media. There is no joy to be had, whether you are at the top or the bottom of that league table, because of the individual tragedies that each of them adds up to. Some in the media did not reflect on Northern Ireland's particular circumstances. I do not want to invite upon the House another debate like the one that we had last Wednesday night, but it has been recognised by many midwives, in some of the comments that they made in the press, that we are not comparing like with like when we look at Northern Ireland stillbirth figures because of issues around termination and abortion in Northern Ireland.

Adrian Cochrane-Watson (UUP, South Antrim)

T2. Mr Cochrane-Watson asked the Minister of Health, Social Services and Public Safety whether he can offer any help and support to the emergency department (ED) at Antrim Area Hospital, which Mr Cochrane-Watson was privileged to tour last Friday, when he was humbled to meet and talk to its staff, albeit that, on Friday, the department was forecasting the admission of 270 people over the subsequent 24-hour period, making it the busiest ED in Northern Ireland — it is consistently the first, second or third busiest ED —even though it was commissioned originally to comfortably cope with about 240 admissions and is, unfortunately, dealing with admission numbers that overwhelm its staff. (AQT 3512/11-16)

Simon Hamilton (DUP, Strangford)

I echo what the Member said about the dedication of the staff in Antrim Area Hospital. I visited Antrim Area Hospital's ED during the week of very high pressures on the service at the start of the year. I noticed that, although it was incredibly busy, the staff were deeply committed to what they were doing, really dedicated to their work and absolutely in control of a very difficult situation. I commend them for the work that they put in not just over the Christmas or early new year period, when it is always very busy, but the whole year.

There have been issues in the past at Antrim Area Hospital, but I recognise the efforts that have been put in by the trust under new leadership. I have every faith in that leadership and in the work that it is doing. It is slowly but surely starting to turn the situation around. It is far from perfect, and they are under pressure. That reflects a pressure right across the service. In the last five years, there has been an increase of nearly 14% in unplanned admissions across Northern Ireland. Places like Antrim Area Hospital have perhaps borne the brunt of that. In recognition of that, I have invested an additional £8 million in winter pressures this year. A share of that — over £1 million — will have gone to the Northern Trust to deal with the pressures that it faces. I hope that, in spite of the pressures that it is facing, it continues with the improvements that it has made in recent times.

Adrian Cochrane-Watson (UUP, South Antrim)

Minister, I agree with you about the commitment of the staff, leadership and senior management team of the trust. One of the concerns raised by senior staff and doctors at the ED was about what they termed the back end of the service, where people were being bed-blocked and care packages were not being put in place. They were looking at the availability of beds. As they highlighted, people were waiting on trolleys, but they were being treated; drugs were being administered and there were MRI scans and X-rays. However, there was still the wait time, which was all down to the back end, as they termed it, of the service.

Simon Hamilton (DUP, Strangford)

I always listen to the experiences of people on the front line. That is certainly the message that I received in Antrim when I was there in January and from talking to two other emergency departments about the pressures that they are facing. I was in the emergency department in the South West Acute Hospital on Friday and received a similar message. Looking back over our performance in the past number of years, particularly around this time of the year when there is a spike in activity, I can say that our emergency departments have been able to cope with the range of pressures that they have been facing. However, different, broad problems appeared in each year that we sought to address in the subsequent year through funding and various innovations. This year, the pressure that was quite acute was that of the "back end", as the Member described it.

People are getting treated quite quickly in many instances. I sat and reviewed the website that updates the times that it takes for people to get treated over the Christmas period, and it was interesting to see that, in many cases, the times taken for people to be seen were quite short. Therefore, looking at it superficially, you would say that there should not have been a problem in the emergency department. The problem was coming from the fact that people could not leave and get the care package that they required or get a bed in the hospital. We have identified that as a problem, and it is something that we are going to have to address next year.

That fits in with the question that Mr Lyttle asked about the independent care sector and the pressures that it is facing. That is why I am keen to support, bolster and ensure the stability of that sector so that we can use it to alleviate some of the pressures that our emergency departments and our hospitals in general are facing.

Alex Attwood (Social Democratic and Labour Party, Belfast West)

T3. Mr Attwood asked the Minister of Health, Social Services and Public Safety to confirm the number of cases referred to his Department of persons infected with the H1N1 virus and to state whether he is satisfied that the trusts and other health authorities are putting into the public domain all possible information in relation to the risk of H1N1 and the number of confirmed cases. (AQT 3513/11-16)

Simon Hamilton (DUP, Strangford)

I thank the Member for his question. It is a bit like the question that Mr Ross asked, in that there is concern among our community when we hear some of the stories and about some of the deaths possibly connected to a virus. In this case, the virus is what is colloquially referred to as swine flu.

During the 2015-16 flu season, there have been 303 lab-confirmed cases of seasonal flu in Northern Ireland, with 239 of them being the H1N1 strain. The main defence in place for seasonal flu, including the H1N1 strain, is the annual vaccination programme. We procured 675,000 doses of the vaccine in Northern Ireland this year. Protection against H1N1 is contained within that seasonal flu vaccination. There have, of course, been some issues and problems, and, without being able to speak authoritatively about every case, many of those will involve people who have underlying health conditions that mean that the vaccination has not been able to work in the full way that we had hoped that it would.

Alex Attwood (Social Democratic and Labour Party, Belfast West)

Following up on the last point that the Minister made, can he confirm the number of cases in which H1N1 has been the cause of death or a contributory factor? To go back to my substantive question, are you satisfied that, regarding the scale of the threat, all that can be done is being done to bring information to the attention of the public and to make interventions to protect the public?

Simon Hamilton (DUP, Strangford)

I do not have the information related to the first question. I suspect that that may be because analysis is still going on to make sure that, if we say that something is the case, it absolutely is the case. That way, we will not scare people in Northern Ireland unnecessarily.

We have to be very sensitive of the need to provide timely and accurate information. Everybody in the system is open and honest about the fact that there are issues with H1N1 — swine flu — but the vaccination programme that we have in place is the best defence against that. That is why we procure so many doses of the vaccine each year and why vaccination is promoted so heavily. We encourage so many people to have the vaccination to act as a defence against influenza, of whatever type it might be.

Mitchel McLaughlin (Speaker, South Antrim)

I call Mr Mike Nesbitt. I am sorry that there will not be time for a supplementary question.

Mike Nesbitt (UUP, Strangford)

Not your fault, Mr Speaker.

Mike Nesbitt (UUP, Strangford)

T4. Mr Nesbitt asked the Minister of Health, Social Services and Public Safety whether he can assure sufferers of mental ill health in Northern Ireland that they will not be the poor cousins within the United Kingdom in light of the Prime Minister's promise of £1 billion in England to end discrimination between physical and mental illness. (AQT 3514/11-16)

Simon Hamilton (DUP, Strangford)

I very much welcome the Prime Minister's announcement, not just because of the monetary aspect, which I will come back to, but because of the fact that someone as senior as the Prime Minister said what he said. I think that it is incredibly important that all of us in public life, particularly those in positions like the Prime Minister, talk about the importance of mental health — not versus physical health but alongside it — and the impact that poor mental health can have on one's physical health.

The additional resources are very welcome. The Member will know that, in my position and in this Department, we welcome resources, wherever they come from. We are still analysing exactly what the Prime Minister means by an additional £1 billion and whether that is an additional sum or whether it is included in the £8 billion increase. I have seen one recent report that states that it is part of the overall £8 billion increase by the end of the decade.

I am not saying that we are absolutely where we need to be in our levels of expenditure in Northern Ireland. The Member is well versed in the acuity of the problem in Northern Ireland and some of the particular circumstances causing that, especially those related to our past. However, I was pleased to see and note that a BBC report over the weekend, which helped to spark some of this debate, showed that, of all regions of the United Kingdom, the only one to have increased expenditure on mental health in the past two years was Northern Ireland. We increased it by 1% last year and by around 2·5% this year. While that does not resolve all the problems and is not a full answer, it does show the commitment of me, this Department and the Executive to invest further in mental health because of the particular problems that we face in Northern Ireland, never mind the general problems that people in Northern Ireland and the rest of the UK are facing in respect of poor mental health.

Mitchel McLaughlin (Speaker, South Antrim)

Time is up. Before we return to the Consideration Stage of the Mental Capacity Bill, Members will wish to take their ease while we change the top Table.

(Mr Deputy Speaker [Mr Beggs] in the Chair)

Executive Committee Business

Roy Beggs (UUP, East Antrim)

We now come to the third group of amendments for debate. These amendments deal with enduring powers of attorney, lasting powers of attorney and the oversight bodies, including the Public Guardian, the review tribunal and the Attorney General. A valid petition of concern has been tabled in relation to amendment No 116, so cross-community support is required for that amendment. I call the Minister to move amendment No 5 and to address the other amendments in the group.

Simon Hamilton (DUP, Strangford)

I beg to move amendment No 5:

In page 5, line 23, after second "attorney" insert

", or an enduring power of attorney,".

The following amendments stood on the Marshalled List:

Amendment Nos 51, 56, 77, 116-119, 123, 125, 128, 133, 139, 287, 289, 293, 313, 324, 330, 340-342, 361-363, 486.

The third group of amendments relates to enduring powers of attorney, lasting powers of attorney and the oversight bodies. Amendment No 5 inserts a reference to "an enduring power of attorney" into the list of relevant people to be consulted as part of the best-interests determination. This amendment to clause 7 has been put forward with the agreement of the Committee, as noted in its report. Similar amendments adding reference to "an enduring power of attorney" to clauses, which, as introduced, provided the lasting power of attorney with a particular role but not the enduring power of attorney, are also proposed where appropriate throughout the Bill, as recommended by the Committee. The relevant amendments are amendment Nos 77, 123, 125, 139, 313, 324, 330 and 340.

At this point, I propose to move on to amendments relating to Part 5 of the Bill on lasting powers of attorney. I will return to the Committee's opposition to clause 110 and schedule 5, as well as amendment No 119, at the end of my remarks on this group.

Amendment No 116 has been tabled by Ms McCorley, Mr McCartney and Mr Lynch. Its effect would be to lower the age at which a person can execute a lasting power of attorney from 18 to 16. A lasting power of attorney is a legal document that gives an attorney the power to make decisions about the donor's care, treatment or finances when the donor has lost the capacity to do so. I will not leave any room for doubt about my stance on this amendment. I strongly caution the Chamber against supporting it today for two reasons. First, it is a rather crude attempt to extend to children a system predicated on the law on capacity and consent that applies to adults, with no consideration whatsoever of the implications of what the law says about children and decision-making. Those implications extend well beyond the scope of this Bill to other significant pieces of legislation, such as the Age of Majority Act (Northern Ireland) 1969. The second reason why I urge Members not to support the amendment is that work is under way within the Department of Finance and Personnel to examine those implications. The more prudent course of action would be to let that work conclude before the Chamber takes a vote on a matter of such importance.

I will now turn to amendment No 117, which has also been tabled by Ms McCorley and others. Clause 98 allows an attorney acting under a lasting power of attorney to make gifts to the donor's relatives or associates on customary occasions, such as birthdays, as long as the value of the gift is not unreasonable. The clause allows the attorney to be included in the list of persons who can receive gifts, so effectively the attorney could buy a gift for themselves. The effect of amendment No 117 would be to prohibit an attorney from being able to gift themselves. I am sure that the Members will clarify their intentions when speaking to this amendment. However, my assumption is that it has most likely been motivated by a concern that an attorney may abuse their power in some way. I understand that possible argument, but the problem with it is twofold. First, the amendment would not have the desired effect. If the attorney is a relative or associate of the donor, the clause as amended would still allow the attorney to receive gifts. Secondly, donors making lasting powers of attorney are likely to appoint family members as their attorney. Therefore, to exclude that family member from receiving gifts on behalf of the donor just because they are acting as an attorney could have the perverse effect of deterring a donor from making that close family member an attorney. Furthermore, any concern regarding the potential to abuse that power is already addressed by the fact that the clause states that the gift must not be:

"unreasonable having regard to ... the circumstances and ... the size of the donor’s estate."

For all those reasons, I do not support this amendment to clause 98.

Amendment No 118 has also been tabled by Ms McCorley, Mr McCartney and Mr Lynch. It relates to clause 99, which sets out certain requirements for attorneys. For example, anyone who is bankrupt may not be appointed as a property and affairs attorney. The effect of the amendment would be to insert a new requirement that any person convicted of fraud be subject to a risk assessment for suitability for the post of attorney.

Again, there are difficulties with this amendment. For example, it raises a number of unanswered questions. Who or what body would undertake the assessment? What criteria would be applied to determine suitability? What would be the consequences of such a risk assessment? There is also the fundamental point that the Bill is about respecting people's decisions, even if unwise, provided they have the capacity to make them. To put it bluntly, if the donor has capacity and wishes to appoint an attorney who has been convicted of fraud, that is his or her prerogative, however unwise that decision might seem. In any event, there are already safeguards built into the lasting power of attorney system specifically to deal with situations in which there may be concerns about an attorney. For example, persons other than the donor can object to the registering of a lasting power of attorney on prescribed grounds. I believe that those safeguards are sufficient and proportionate. For those reasons, it is my view that amendment No 118 is insufficiently precise and unnecessary.

I will now turn to the amendments relating to the oversight bodies. Amendment Nos 51 and 56, which create new clauses 48A and 51A, relate to the review tribunal. New clause 48A will introduce a referral mechanism to the tribunal for young people once they reach the age of 16. It will ensure that a young person's case will be referred to the tribunal if the detention was renewed under article 13 of the Mental Health (Northern Ireland) Order 1986 and a year has elapsed since the case was last considered by the tribunal. New clause 51A will provide an additional power for the review tribunal, when considering a person's case, to recommend the taking of specific actions and to allow it to further consider the case in the event that the recommendations are not complied with. Those new clauses will ensure that the tribunal adequately reviews the cases of all individuals subject to the Bill.

Amendment No 128 inserts new clause 121A, the effect of which is to ensure that, when an application is made to the court under Part 6, the Attorney General is notified of the application and can intervene in proceedings where he considers it appropriate to do so. That is a protective measure for those who lack capacity to make decisions that may result in Part 6 being utilised in their case.

Amendment No 133 amends clause 125(5)(a) and addresses the Committee's concerns that the Public Guardian can access healthcare records held by not only the health and social care trusts but agents and employees of the trusts. As a result of this amendment, the Public Guardian will be able to access records held by, for example, providers of domiciliary care and supported living arrangements.

Amendment No 287 amends clause 228 to clarify that a person can be detained under Part 2 or, if aged under 16, the Mental Health Order, even if he or she is discharged under Part 10.

Amendment No 289 inserts new clause 230A, which contains additional powers for the review tribunal when considering the issue of detention under a public protection order. It allows the tribunal, where it has decided not to release a person, to recommend taking specified actions with a view to a future release, and further considering a person's case if those actions are not complied with.

Amendment No 293 inserts new clause 234A. This provision contains additional powers for the review tribunal when it is considering continued detention under a hospital direction or hospital transfer direction. The clause allows the tribunal, where it has decided not to release a person, to recommend taking specified actions with a view to a future release, and further considering a person's case if those actions are not complied with.

Amendment No 341 creates new clause 277A, which places a duty on my Department and the health and social care trusts to furnish such returns, reports and other information about an individual who is the subject of proceedings under the Bill as the High Court, the review tribunal and the Public Guardian may require for the exercise of functions under the Bill. Associated amendment No 486 is a repeal consequential to amendment No 341.

Amendment No 342 creates new clause 277B, which places a duty on my Department and the health and social care trusts to provide facilities, such as a room, for example, as the High Court, the review tribunal and the Public Guardian may require for the exercise of functions under the Bill.

Amendment Nos 342 and 343 ensure that the bodies providing judicial oversight of interventions under the Bill have adequate access to all of the necessary resources and information required to perform their role.

Amendment Nos 361, 362 and 363 relate to clause 283, "Panels". In response to a concern raised by the Committee, amendment No 361 provides that all panel members must be in attendance during proceedings of the panel. Amendment Nos 362 and 363 are technical amendments that subsume two subsections into one to improve the drafting of the clause.

Finally, I propose to address amendment No 119 to clause 110. It was tabled by Ms McCorley, Mr McCartney and Mr Lynch and is somewhat at odds with the Committee's opposition to clause 110 and related schedule 5, which I will also address. I will start by providing Members with background to the issue at hand. As Members are aware, the Bill creates a new scheme of lasting power of attorney to replace the existing outdated enduring power of attorney scheme. Under the new lasting power of attorney system, an attorney can be appointed to deal with not just property and affairs decisions but decisions relating to the donor's care, treatment and personal welfare. Importantly, the lasting power of attorney system builds on the safeguards in the enduring power of attorney scheme, offering more protection for donors and attorneys. On that basis, the effect of clause 110, as introduced, would be to repeal the Enduring Powers of Attorney (Northern Ireland) Order 1987, with the effect that no further enduring powers of attorney could be made once clause 110 was commenced. Enduring powers of attorney already made under the current law, however, would be preserved through the savings provisions in schedule 5.

The Committee has made it clear that it is not content with the approach outlined. During its deliberations, the question was raised of why the enduring power of attorney system could not run alongside the new lasting power of attorney system. My officials, with input from the Department of Finance and Personnel and the Northern Ireland Courts and Tribunals Service, argued that running two systems would be confusing, costly and operationally difficult, and that, ultimately, the new lasting power of attorney system provides better safeguards than the enduring power of attorney system. The Committee did not accept those arguments and proposes to oppose clause 110 and schedule 5. That will have the effect of allowing enduring powers of attorney to continue to be made alongside the new lasting powers of attorney.

My own view is that, should the Chamber agree with the Committee stance, the more prudent course of action would be to retain the relevant provisions but make their commencement subject to the approval of the Assembly rather than removing them entirely from the Bill. Doing that would place a constraint on the Department's ability to remove the enduring power of attorney system, so enduring powers of attorney could continue to be made for the foreseeable future as the Committee desires, but would avoid the need for new primary legislation and associated resources if difficulties were to arise in the future or a decision were to be taken to remove the enduring power of attorney system following a review in, say, three years' time, which was also suggested by the Committee in its report.

To be clear: that compromise option would require Members to support clause 110 and schedule 5 as they stand, on the basis that I commit to bringing forward an amendment at Further Consideration Stage to make their commencement subject to the approval of the Assembly. That will allow the two systems to run alongside each other until such time as the Assembly decides otherwise.

Finally, I will briefly address the related amendment No 119, tabled by Ms McCorley and others. The key point to make is that the compromise option would make the proposed amendment redundant, as would the Committee's opposition to clause 110. In essence, they all seek to achieve the same objective. However, as I have said, my strong preference, if the Chamber agrees with the Committee that the enduring power of attorney system should be retained, would be to proceed along the lines of the compromise that I have outlined.

That concludes my remarks on the third group of amendments regarding enduring powers of attorney, lasting powers of attorney and oversight bodies. I look forward to the debate that will ensue.

Alastair Ross (DUP, East Antrim)

Again, as with the previous groups, all the amendments that have been tabled by the Minister are accepted and supported by the Committee. Therefore, I will not go over the detail of every amendment that has been tabled, but rather focus again on particular areas of concern or significance to the Committee deliberations.

Amendment No 5 is tabled by the Minister. Again, it came about as a result of an issue that was raised by the Committee. Clause 7 deals with the process for determining the best interests of a person who falls under the Bill's remit. The Law Society pointed out that an attorney acting under an enduring power of attorney, known as an EPA, was not included in the list of relevant people in clause 7 who would be consulted on what was in someone's best interests. That appeared to be an omission. The Department advised the Committee that it could foresee situations where it would be useful to consult the EPA and agreed therefore to make the amendment.

The Department, on reviewing the Bill, made note of other clauses where there should have been reference to an enduring power of attorney and rectified the situation; for example, through amendment Nos 77, 123, 125, 139, 313, 324, 330, and 340. The Committee welcomes those amendments and the fact that they recognise the important role that an attorney acting under an EPA has in making decisions on behalf of a person who comes under the Bill's remit.

Amendment Nos 361, 362 and 363, which have been tabled by the Minister, were in response to an issue that was raised, again, by the Committee. Clause 283 deals with the panels that will consider applications to authorise detentions and extensions of public protection orders made without restrictions. Given the seriousness of the decisions that these panels will take in terms of the impact on an individual's liberty, the Committee was concerned that clause 283 does not specify quorum requirements, but simply states that the panel has three members. The Committee also queried the fact that the clause states that provision for cases where the panel cannot reach a unanimous decision will be provided for in regulations.

Firstly, we wrote to the Department and advised that we favoured a quorum of three being specified in the Bill. The Department responded positively to that suggestion and proposed the amendment that is before us today that clarifies that all three panel members must be in attendance during proceedings of the panel, which includes when a decision is to be made.

We also asked the Department for its views on the suggestion that, in cases where the panel cannot reach a unanimous decision, the decision be taken on a majority vote. The Department identified a number of drawbacks. For example, it could be the case that the panel member in the minority may indeed be the person with the most relevant experience and expertise in that particular subject area. It is fair to say that the Committee was not entirely convinced by that logic, given that the assumption would be that anyone who sat on the panel should surely be there because they had the necessary knowledge and expertise in the first instance. However, we ultimately accepted that there are a number of unknowns still at play and that it would therefore be more sensible to allow the matter to be consulted on further in the process of the Department's putting together the necessary regulations in the future. Therefore, the Committee was content that the Department restricted its amendments to clause 283 to the issue of quorum.

I will now turn to the key issue for the Committee within this group of amendments. The Committee has given notice that we are opposed to clause 110 and the related schedule 5 standing part of the Bill.

As the Minister has outlined, Part 5 of the Bill creates a new system for lasting powers of attorney. I will say up front that the Committee supported the introduction of LPAs and we can see the rationale behind them in that they give people an opportunity to put powers of attorney in place in relation to future decisions that have to be made about their health, welfare and finance. However, we diverged from the Department on the future role of EPAs under the Bill.

To set the context; at present, only EPAs are available to people in Northern Ireland, and they can be made by a person in relation to decisions about their property and affairs. Under the Bill as drafted, through clause 110, no further EPAs could be made once the legislation comes into operation. A range of stakeholders, including the Law Society, are fundamentally opposed to that suggestion. In their view, there are serious drawbacks in having a system that only permits the making of lasting powers of attorney (LPA), which is what the Bill proposes to do.

Experience from England and Wales has shown that the forms required for making an LPA are lengthy and complex and that, when legal services are employed, it typically costs the client around £500 plus VAT in addition to a £110 registration fee that is payable immediately. The Law Society believes that those high costs have discouraged people from making lasting powers of attorney.

In contrast, the cost of making an enduring power of attorney is relatively modest at around £100 for legal services and a registration fee of £115 that is payable only when there is a need to bring the power of attorney into effect. The Law Society believes that the modest costs and relatively straightforward nature of making an EPA — for example, at the same time as somebody is making a will — means that there are fewer barriers to people making an EPA.

The Law Society put it to the Committee that the current EPA system could run alongside the new LPA system that is created by the Bill. It suggested that this would provide people with more flexibility and accessibility in planning for their future needs. Its key concern was that, if the only option available to people was to make a lasting power of attorney, with all the associated complexity and expense, many of them would simply do nothing. When that happens and someone loses capacity to make certain decisions, it can create serious bureaucratic obstacles for the person's family or carers, particularly in being able to manage their finances for them. However, if an EPA is in place, the management of a person's property and financial affairs is a lot more straightforward and you avoid getting into situations where, for example, someone's household bills cannot be paid.

The Committee put it to the Department that it seemed logical and sensible to maintain the EPA system alongside the new LPA system. As Members have heard from the Minister, the Department was not in favour of that proposal. We listened to its arguments carefully, but I must say that we were not convinced by the logic of some of them. For example, the Department stated that, in practical terms, managing two systems would be unworkable. However, under the Bill, existing EPAs will not become invalid; it is simply that no more can be made. Therefore, as soon as the Bill becomes operational, the Department will be managing two separate systems automatically, irrespective of the Committee's opposition to clause 110. The Department has not given us the facts and figures, but one can only assume that there are thousands of EPAs already in existence in Northern Ireland. Some will have been made by people who are now in their 70s or 80s, but others will have been made by those who are in their 40s, 50s and 60s and who will be able to legally rely on those EPAs for the next number of decades, up to maybe 40 or 50 years. Therefore, it simply does not add up as an argument to state that no further EPAs should be made because it is too difficult to run two systems.

The Committee bought into the argument that we should give people choice and that, for those who could not afford, or are not willing to pay, the amount for an LPA, we should at least offer them some protection in the form of an EPA. I listened to the Minister's attempt at a compromise. My view and, I think, that of the Committee is that we should assess how things operate over the next number of years and, if it is proven to be creating a significant difficulty, we could return to it at that point. I am not sure that we would be satisfied with passing the Bill and putting some sort of commencement order around getting rid of the EPA system. I will have no difficulty if new primary legislation is required in five years to deal with the issue. It comes back to the point on the Henry VIII clause and ensuring that we have maximum scrutiny for the Assembly. Therefore, if, in five years' time, the Departments were able to prove that there is a significant issue with running LPAs and EPAs in tandem, legislation could perhaps be brought forward at that point by the Department, given that we will at least have an evidence base to work on. The Committee position is that we will maintain our opposition to clause 110, and we believe that we should be able to offer people the option of either an LPA or an EPA.

Concerns were raised about the potential complexity of the forms required to make an LPA, and the Minister of Justice provided a written assurance that they would be kept as straightforward as possible. Whilst the Committee appreciates that assurance, it did not alter our position on maintaining EPAs. Fundamentally, our position is to give people choice and flexibility, taking into account how much they are willing to pay for the future.

I will make some personal comments about the two Sinn Féin amendments. The Minister outlined his views on amendment No 119. Given the Committee opposition to clause 110, I do not think that amendment No 119 is required. Effectively, it is trying to do the same thing but in a different way, so, hopefully, Sinn Féin will not move it.

Whether somebody convicted of an offence, particularly fraud, should be allowed to be an attorney provoked discussion at the Ad Hoc Joint Committee, and amendment No 118 references the issue. I understand why it was an issue. I agree with the Minister that, if somebody is of sound mind and has capacity to make a decision, it is up to that person whether to appoint somebody who has such a conviction. It may be a husband or relative who may have a conviction, but that person still feels it appropriate to have him or her as attorney. On that basis, I do not support the amendment. We have to give individuals the option to make choices when they have capacity to do so, whether or not, as the Minister said, they are choices that we think sensible.

I hope that the House will support the Committee position on clause 110.

Raymond McCartney (Sinn Féin, Foyle)

Go raibh maith agat, a LeasCheann Comhairle. I will speak on the amendments tabled in our names in group 3. We will support the amendments tabled by the Minister and the Committee amendments as outlined by the Chair.

A petition of concern has been lodged on amendment No 116. The Minister outlined two reasons why he opposed the amendment. The second reason is to do with a process that is taking place in DFP, and we want to allow that to go forward. The amendment has its origins in concerns raised by the Children's Commissioner and the Children's Law Centre. The issue might come back at Further Consideration Stage or at some other time. There are 16- and 17-year olds who should be allowed to make those types of decisions for themselves, but, given what the Minister said about DFP, we will not move the amendment today.

Amendment No 117 is about preventing an attorney from giving himself or herself a gift from an estate or carrying out work. In fairness, the Minister accepted that there could be a perceived conflict of interest. That is what we are trying to address. I accept that, as the Minister said, if the attorney happened to be a relative, that in itself is a complication. Perhaps we could tighten that at Further Consideration Stage, but we note the Minister's comments.

I note the Minister's comments, and the Chair speaking as an individual and on behalf of his party, on amendment No 118. We tabled that amendment in case the appointment of an attorney was contested by other family members, or that the attorney later had a power but that the other person was incapable of changing or altering the decision. In those cases, when a person has been convicted of fraud, we need some protection. We are not saying that it should be automatic, because we do not believe in debarring somebody simply because of a conviction. If, however, the fraud is directly related to the person concerned, there should be some measure to assess the suitability of the person acting as attorney.

The last amendment that we have tabled in the group is amendment No 119 to clause 110. In response to the comments made by the Minister and, indeed, by the Chair of the Committee, we accept that the Committee's opposition to clause 110 no longer necessitates amendment No 119, which we will not move.

Patsy McGlone (Social Democratic and Labour Party, Mid Ulster)

Go raibh maith agat, a LeasCheann Comhairle. I welcome the opportunity to address the group 3 amendments considering EPAs, LPAs and oversight bodies. Clauses 95 to 110 set out lasting powers of attorney in the Bill. In evidence sessions, there were numerous representations on enduring power of attorney and lasting power of attorney. The Law Society broadly welcomed the majority of the proposals in the Bill. In particular, it welcomed the proposal to introduce the health and welfare lasting power of attorney, which will give attorneys the ability to make decisions on health and welfare matters. We too welcome that proposal because, if used correctly, it can provide more certainty for people when deciding their future.

The society noted with concern, however, that the Bill proposes to abolish enduring powers of attorney entirely. It is the society's view that EPAs have brought benefits to Northern Ireland and that the current system of EPAs should be retained. Retention of enduring powers of attorney alongside the new lasting power of attorney would give, it says, the client maximum flexibility and accessibility to meet their legal needs. It is for that reason that we welcome the Sinn Féin amendment No 119 and the Minister's intention to oppose clause 110. To remove EPA would be a premature attempt to reduce potential fraud and make the system more efficient.

Most of the rest of the amendments, bar amendment No 116, on which a petition of concern has been put down, are technical. The simplicity of the current EPA system has led to its widespread use by members of the public. It has also meant that the legal cost of putting an EPA in place from assisting with the completion of the prescribed forms and the court fees for registration of the EPA has been kept low. Many related to the Committee that an LPA introduction without EPA would see costs increase and act as a barrier to some utilising the service.

One of the main drivers for the introduction of the LPA is the intention to decrease fraud and to provide more protection for the patient. However, in England and Wales, much larger numbers of fraud cases are being prosecuted than under the previous EPA system. There were 2,200 safeguarding referrals to the Office of the Public Guardian (OPG) in England and Wales in 2013-14. According to the KPMG fraud barometer published this month, fraud on families perpetrated by one of their own grew by 384% in the first half of 2015 compared with the same period in 2014. It was KPMG's view that that was largely due to the frustration of family members having to wait longer for their inheritance as a result of increased life expectancy. There you go. By value, 72% of family fraud was committed by fraudsters aged over 45.

It was the view of the Law Centre, and of many other stakeholders, that the EPA system has operated very effectively in the North without any evidence of widespread fraud and that the introduction of LPA alone will not solve the problems that exist. That is not to say that the introduction of LPAs is a bad thing in itself; the opposite is true. For example, the Commissioner for Older People made some very interesting points about LPAs, indicating that the introduction of lasting powers of attorney will have a significant impact on the lives of many older people. The LPA may influence where an older person lives; what care home they reside in; how they are looked after, including the provision of care; and the types of care, including top-up fees that have to be paid.

The legislative framework extends existing powers to allow the attorney the authority to make decisions not just on financial but on welfare and health matters. We in the SDLP stress, however, that the LPA process should be made as simple as possible for those who wish to use it. In the House of Lords post-legislative scrutiny review of the Mental Capacity Act, witnesses provided evidence that the process of applying for an LPA was complex and that the paperwork was considered onerous. We must avoid that.

A petition of concern has been tabled to amendment No 116, which attempts to reduce the age at which a donor may appoint an attorney. We will support that Sinn Féin amendment. We voted for 16-year-olds to be able to vote, yet we would deny them the opportunity to appoint an attorney should a situation arise in which they might need to do that. That would be entirely inconsistent, so we will support the amendment and the other group 3 amendments on EPAs, LPAs and oversight bodies.

Jo-Anne Dobson (UUP, Upper Bann)

I welcome the opportunity to comment on the third group of amendments. I start by expressing my disappointment that, for the second day running, a petition of concern that could not have any detrimental impact on one community or the other has been tabled to important Executive legislation. It would have been much better for the House to consider amendment No 116 in a genuine manner rather than it effectively being vetoed by a single party. Nevertheless, I and my party also oppose the amendment. Committee members received some stakeholder evidence on the issue, and, although I am sympathetic to the principle of giving 16- and 17-year-olds the power to make a lasting power of attorney, I am aware that the Department of Finance and Personnel is currently reviewing that. Given the sensitivity of the issue, my party would rather wait until that review is complete. We will therefore be opposing amendment No 116.

Simon Hamilton (DUP, Strangford)

I thank all the Members who have contributed to the debate. As I did with groups 1 and 2, I will try to keep my closing remarks very brief. I think that it is fair to say that the amendments that I tabled in group 3 relating to oversight bodies are straightforward and sensible, and Members appear from their comments not to have any issues with them today, which is encouraging. That allows me to concentrate my closing remarks on the key issues in the group, which relate to lasting powers of attorney and enduring powers of attorney.

My view remains unchanged on the amendment proposed by Sinn Féin to extend the lasting power of attorney system to 16- and 17-year-olds, although I welcome the fact that it is now not going to move the amendment. I think that that is right, in order to give everybody time to reflect on the work that the Department of Finance and Personnel is doing on the issue. That does not do any damage to the ability of the Members opposite or, indeed, any other Member to come back to the issue at a later stage, if they so wish.

As anticipated, the debate largely focused on the effect of the Bill as introduced on the existing enduring power of attorney system. Although the position adopted by the Committee on the issue would cause us, I believe, to miss a timely opportunity to draw a line under a piece of legislation based on outdated concepts, the strength of views on the retention of the enduring power of attorney system seems clear. I need to emphasise, however — I think that other Members, including the Chair of the Ad Hoc Committee, mentioned this point — that those views persist in spite of Minister Ford's reassurances that the new lasting power of attorney forms will be kept short and straightforward, despite the fact that the costs of making a lasting power of attorney have yet to determined, and despite the substantial year-on-year increases in the numbers of lasting powers of attorney being made in England and Wales over recent years. Moreover, we cannot ignore the potential for confusion for the general public that will arise from having two systems that cover the same ground but in very different ways, not to mention the operational difficulties of running them alongside each other.

Alastair Ross (DUP, East Antrim)

I thank the Minister for giving way. Perhaps I did not mention another issue around that potential confusion. It is the case that the vast majority of people who will be getting either an EPA or an LPA will go to a solicitor in order to do that. It is a solicitor's job to explain to those individuals the options that they have. Therefore, again, I am not sure that I have bought the argument that it will cause confusion, given that members of the public will have explained to them the differences between the two and the options that they have. I just do not get where this confusion will come from.

Simon Hamilton (DUP, Strangford)

I and other Members have used the word "confusion", but that is possibly the wrong word. It does present people with a choice, and the Chair and I will be keen to offer people choice, particularly when purchasing such products that offer people choice. I do take on board his point that it is absolutely the job of a solicitor to explain to people what they should be going for. However, I hope that he and, indeed, others accept that there is at least a risk that, when presented with the choice, given that one may be more expensive — even though that has not been set yet, but let us take the English example as something to go on — individuals may have a propensity to go, "Yes, I've heard the explanation of the choice, but the price difference is so stark that I'm going to go for the cheaper one". That may not be appropriate in every case.

I have put forward a possible compromise that would allow EPAs to remain in place until the Assembly decided otherwise. I am not sure from listening to Members that that will find a terrible lot of favour. I have never been a politician not to understand and appreciate the direction in which the wind is blowing, and I will reflect on that as we move through the stages of the Bill.

The issue has been well aired in the debate and through the deliberations of the Ad Hoc Committee. That concludes my remarks on group 3.

Amendment No 5 agreed to.

Clause 7, as amended, ordered to stand part of the Bill.

Clause 8 (Compliance with section 2)

Question put, That the clause stand part of the Bill.

Question put a second time and agreed to.

Clause 8 ordered to stand part of the Bill.

Clause 9 (Protection from liability for acts in best interests of person lacking capacity)

Amendment No 6 made:

In page 6, line 33, after "(independent" insert "mental capacity". — [Mr Hamilton (The Minister of Health, Social Services and Public Safety).]

Clause 9, as amended, ordered to stand part of the Bill.

Clause 10 (General limitations on section 9)

Amendment No 7 proposed:

In page 7, line 3, after "damage" insert "or injury". — [Ms McCorley.]

Question, That the amendment be made, put and negatived.

Clause 10 ordered to stand part of the Bill.

Clause 11 ordered to stand part of the Bill.

Clause 12 (Acts of restraint: condition that must be met)

Amendment No 8 proposed:

In page 8, line 18, leave out "a threat" and insert

"an expressed intention to use force". — [Ms McCorley.]

Question put, That the amendment be made. The Assembly divided:

Ayes 37; Noes 56

AYES

Mr Attwood, Mr Boylan, Mr Dallat, Mr Diver, Mr Durkan, Mr Eastwood, Ms Fearon, Mr Flanagan, Ms Hanna, Mr Hazzard, Mrs D Kelly, Mr Lynch, Mr McAleer, Mr F McCann, Ms J McCann, Mr McCartney, Ms McCorley, Mr McCrossan, Mr McElduff, Mr McGlone, Mr M McGuinness, Mr McKay, Mrs McKevitt, Mr McKinney, Ms Maeve McLaughlin, Mr McMullan, Mr A Maginness, Mr Maskey, Mr Milne, Mr Murphy, Ms Ní Chuilín, Mr Ó hOisín, Mr O'Dowd, Mrs O'Neill, Mr Rogers, Ms Ruane, Mr Sheehan

Tellers for the Ayes: Mr Lynch, Mr Sheehan

NOES

Mr Agnew, Mr Allen, Mr Allister, Mr Anderson, Mr Bell, Ms P Bradley, Mrs Cameron, Mr Campbell, Mr Clarke, Mrs Cochrane, Mr Cochrane-Watson, Mr Craig, Mr Cree, Mr Dickson, Mrs Dobson, Mr Douglas, Mr Dunne, Mr Easton, Dr Farry, Mr Ford, Mr Frew, Mr Gardiner, Mr Girvan, Mr Givan, Mr Hamilton, Mr Irwin, Mr G Kelly, Mr Kennedy, Ms Lo, Mr Lunn, Mr Lyons, Mr Lyttle, Mr McCallister, Mr McCarthy, Mr McCausland, Mr B McCrea, Mr I McCrea, Mr McGimpsey, Mr D McIlveen, Miss M McIlveen, Mr McQuillan, Mr Middleton, Lord Morrow, Mr Moutray, Mr Nesbitt, Mr Ó Muilleoir, Mrs Overend, Mr Patterson, Mrs Pengelly, Mr Poots, Mr G Robinson, Mr Ross, Mr Storey, Ms Sugden, Mr Swann, Mr Weir

Tellers for the Noes: Mr McQuillan, Mr G Robinson

Question accordingly negatived.

Clause 12 ordered to stand part of the Bill.

Clause 13 ordered to stand part of the Bill.

Clause 14 (Section 13: formal capacity assessments and statements of incapacity)

Roy Beggs (UUP, East Antrim)

Amendment No 9 has been debated, and is mutually exclusive with amendment No 10.

Amendment No 9 made:

In page 9, line 22, leave out subsection (4) and insert

"(4) In this section references to a “suitably qualified” person are to a person of a prescribed description.". — [Mr Hamilton (The Minister of Health, Social Services and Public Safety).]

Roy Beggs (UUP, East Antrim)

I will not call amendment No 10 as it is mutually exclusive with amendment No 9, which has been made.

Clause 14, as amended, ordered to stand part of the Bill.

Clause 15 ordered to stand part of the Bill.

Clause 16 (Second opinion needed for certain treatment)

Amendment No 11 not moved.

Amendment No 12 made:

In page 10, line 10, leave out "for P". — [Mr Hamilton (The Minister of Health, Social Services and Public Safety).]

Clause 16, as amended, ordered to stand part of the Bill.

Clause 17 ordered to stand part of the Bill.

Clause 18 (Second opinion: relevant certificates)

Amendment No 13 made:

In page 11, line 24, leave out "for P". — [Mr Hamilton (The Minister of Health, Social Services and Public Safety).]

Amendment No 14 made:

In page 11, line 32, leave out from "consulted" to end of line 33 and insert

"?—

(a) examined P;

(b) examined any health records relating to P that have been produced under subsection (2)(b) and appear to the practitioner to be relevant (having taken reasonable steps to require the production of relevant health records); and

(c) consulted such person or persons as appear to the practitioner to be principally concerned with treating P (generally).". — [Mr Hamilton (The Minister of Health, Social Services and Public Safety).]

Amendment No 15 made:

In page 11, line 41, leave out "for P". — [Mr Hamilton (The Minister of Health, Social Services and Public Safety).]

Amendment No 16 made:

In page 11, line 42, at end insert

"(5A) Where RQIA receives a relevant request and proposes to ask a medical practitioner to provide an opinion on whether it would be in P’s best interests to have the treatment, it must (when considering who to ask) have regard to the desirability of asking a medical practitioner who is independent of any medical practitioner concerned with the provision to P of the treatment.". — [Mr Hamilton (The Minister of Health, Social Services and Public Safety).]

Amendment No 17 made:

In page 12, line 1, leave out "subsection (5)" and insert "this section". — [Mr Hamilton (The Minister of Health, Social Services and Public Safety).]

Clause 18, as amended, ordered to stand part of the Bill.

Clauses 19 and 20 ordered to stand part of the Bill.

Clause 21 (Section 19: the prevention of serious harm condition)

Amendment No 18 made:

In page 13, line 10, leave out "section 19" and insert "sections 19 and 22". — [Mr Ross (The Chairperson of the Ad Hoc Joint Committee on the Mental Capacity Bill).]

Amendment No 19 proposed:

In page 13, line 14, leave out "physical". — [Ms McCorley.]

Question put. The Assembly divided:

Ayes 39; Noes 53

AYES

Mr Attwood, Mr Boylan, Mr Diver, Mr Durkan, Mr Eastwood, Ms Fearon, Mr Flanagan, Ms Hanna, Mr Hazzard, Mrs D Kelly, Mr G Kelly, Mr Lunn, Mr Lynch, Mr McAleer, Mr F McCann, Ms J McCann, Mr McCartney, Ms McCorley, Mr McCrossan, Mr McElduff, Mr McGlone, Mr M McGuinness, Mr McKay, Mrs McKevitt, Mr McKinney, Ms Maeve McLaughlin, Mr McMullan, Mr A Maginness, Mr Maskey, Mr Milne, Mr Murphy, Ms Ní Chuilín, Mr Ó hOisín, Mr Ó Muilleoir, Mr O'Dowd, Mrs O'Neill, Mr Rogers, Ms Ruane, Mr Sheehan

Tellers for the Ayes: Mr Lynch, Mr Sheehan

NOES

Mr Agnew, Mr Allister, Mr Anderson, Mr Bell, Ms P Bradley, Mrs Cameron, Mr Campbell, Mr Clarke, Mrs Cochrane, Mr Cochrane-Watson, Mr Craig, Mr Cree, Mr Dickson, Mrs Dobson, Mr Douglas, Mr Dunne, Mr Easton, Dr Farry, Mr Ford, Mr Frew, Mr Gardiner, Mr Girvan, Mr Givan, Mr Hamilton, Mr Hilditch, Mr Humphrey, Mr Irwin, Mr Kennedy, Ms Lo, Mr Lyons, Mr Lyttle, Mr McCallister, Mr McCarthy, Mr McCausland, Mr I McCrea, Mr McGimpsey, Mr D McIlveen, Miss M McIlveen, Mr McQuillan, Mr Middleton, Lord Morrow, Mr Moutray, Mr Nesbitt, Mrs Overend, Mr Patterson, Mrs Pengelly, Mr Poots, Mr G Robinson, Mr Ross, Mr Storey, Ms Sugden, Mr Swann, Mr Weir

Tellers for the Noes: Mr McQuillan, Mr G Robinson

Question accordingly negatived.

Roy Beggs (UUP, East Antrim)

I will not call amendment Nos 20 or 21, as they are consequential to amendment No 19, which was not made.

Clause 21, as amended, ordered to stand part of the Bill.

Clause 22 (Resistance etc by P to provision of certain treatment)

Amendment No 22 made:

In page 13, line 38, leave out from "(and" to "act)" on line 39 and insert

"; and (b) the prevention of serious harm condition (as well as the conditions of section 9(1)(c) and (d), and any other conditions that apply under this Part) is met". — [Mr Ross (The Chairperson of the Ad Hoc Joint Committee on the Mental Capacity Bill).]

Roy Beggs (UUP, East Antrim)

Amendment Nos 23 to 25 are consequential amendments to clause 22.

Amendment No 23 made:

In page 13, line 40, leave out "This section" and insert "Subsection (2)(a)". — [Mr Ross (The Chairperson of the Ad Hoc Joint Committee on the Mental Capacity Bill).]

Amendment No 24 made:

In page 14, line 1, leave out "(2)" and insert "(2)(a)". — [Mr Ross (The Chairperson of the Ad Hoc Joint Committee on the Mental Capacity Bill).]

Amendment No 25 made:

In page 14, line 3, at end insert

"(5) See section 21 for the prevention of serious harm condition.". — [Mr Ross (The Chairperson of the Ad Hoc Joint Committee on the Mental Capacity Bill).]

Clause 22, as amended, ordered to stand part of the Bill.

Clause 23 (Meaning of "subject to an additional measure")

Amendment No 26 made:

In page 14, line 14, at end insert

"; or

(d) the act is done at a time when a supervision and assessment order (see Schedule 7A) is in force in respect of the person.". — [Mr Hamilton (The Minister of Health, Social Services and Public Safety).]

Clause 23, as amended, ordered to stand part of the Bill.

Clauses 24 to 27 ordered to stand part of the Bill.

Clause 28 (Requirements to attend for certain treatment)

Amendment No 27 made:

In page 16, line 22, leave out from "which" to "to" on line 23 and insert "that would or might". — [Mr Hamilton (The Minister of Health, Social Services and Public Safety).]

Amendment No 28 made:

In page 17, line 1, leave out subsection (6). — [Mr Hamilton (The Minister of Health, Social Services and Public Safety).]

Clause 28, as amended, ordered to stand part of the Bill.

Clause 29 (Duty to revoke requirement where criteria no longer met)

Amendment No 29 not moved.

Clause 29 ordered to stand part of the Bill.

Clause 30 ordered to stand part of the Bill.

Clause 31 (Meaning of "community residence requirement")

Roy Beggs (UUP, East Antrim)

Amendment No 30 is mutually exclusive with amendment No 31.

Amendment No 30 made:

In page 18, line 16, leave out subsection (3) and insert

"(3) In subsection (2)(a) “healthcare professional” means a person of a prescribed description.". — [Mr Hamilton (The Minister of Health, Social Services and Public Safety).]

Roy Beggs (UUP, East Antrim)

I will not call amendment No 31 as it is mutually exclusive with amendment No 30, which was made.

Amendment No 32 made:

In page 18, line 18, leave out "which is likely to" and insert "that would or might". — [Mr Hamilton (The Minister of Health, Social Services and Public Safety).]

Clause 31, as amended, ordered to stand part of the Bill.

Clauses 32 to 34 ordered to stand part of the Bill.

Clause 35 (Independent advocate: need to have in place and consult)