Baroness Merron (Lab)

I hope that the comments I have made already indicate where we are concerned, rather than going into further areas, but I would be very happy to look at the noble Lord’s point. I also wish to raise points relating to the European Convention on Human Rights. As before, these are potential risks that I am raising to inform noble Lords’ decision-making, but I wish to be clear that the underlying policies are rightly a matter for Parliament. Noble Lords may wish to note the requirement for an objective, proportionate and reasonable justification to treat those who have previously lacked capacity in a different context differently from others who have not. Noble Lords may also wish to consider whether there is justification for different treatment where an application for deprivation of liberty has been made, but not necessarily completed or approved. In the absence of justifications that are sufficient to persuade a court, the amendments may conflict with ECHR obligations, specifically Article 14 on the prohibition of discrimination, when read with Article 8. I confirm to noble Lords that, if a court finds that primary legislation is incompatible, it may make a declaration of incompatibility. This does not invalidate legislation. As is usual, the Government would then consider—