“What happens if leaders experience mental illness? - Legal Briefing”

A. Disqualification from membership of the House of Commons

The basis on which people are restricted from standing for election to the House of Commons are described in a paper from the House of Commons Information Office :

The main purpose of disqualification is to ensure that Members are fit and proper to sit in the House, and are able to carry out their duties and responsibilities free from undue pressures from other sources.
….
There are two main “House-based” objectives. The first is that a Member should be free from possible conflicts of interest…
….
The second “House-based” objective is perhaps more concerned with the personal qualities and circumstances of a potential Member than with outside influences upon him. The concepts of ‘fitness’ and ‘propriety’ lie behind the restriction of minors, the mentally ill, the dishonest, criminals and bankrupts. [emphasis added]

Perhaps one in four of us are currently excluded from the House under archaic common law that is summarised below in Schofield’s Electoral Law the leading legal text on the subject. The most recent authority dates back to the eighteenth century, and is derived from law from the reign of Queen Elizabeth I.

“Lunacy or idiocy is a disqualification at common law from membership of the House of Commons. A lunatic is one “who hath had understanding but by disease, grief or other accident hath lost the use of his reason”. Such a person “is a person that hath lucid intervals” and it seems such a person may “be elected for their lunacy may never return”. “An idiot or natural fool is one that hath no understanding from his nativity and who, therefore, is by law never likely to attain any”.

These definitions are clearly less than helpful given the current level of understanding about mental illness and it is hard to imagine how the courts might react to a case requiring a determination on either condition”.

B. Removal from the House of Commons

The current law (s. 141 of the Mental Health Act 1983, set out below), contains a statutory procedure for vacating the seat of the House of Commons, if a sitting Member is subject to a section under the Mental Health Act for a period of six months.

The reports prepared by psychiatrists are simply “laid before” the Speaker of House without any consideration or debate by the House. Upon the laying of the second report which is required after six months’ detention under the mental health act, the Member’s seat is automatically removed. The act does not provide for a hearing or any locus for the MP to make any representations in his defence.

Any action to remove an MP under this section would therefore clearly offend Article 6 of the Human Rights Act 1998 which protects the right to a fair and public hearing to determine a citizen’s civil rights. Interestingly no equivalent provisions deal with members of the House of Lords, and there are no provisions for an MP to be removed on the basis of physical ill health.

B.1Disability Discrimination Act 1995 (“DDA”)

Parliament saw fit under The Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005, to create a “public authority duty” to ensure that protections for disabled employees enshrined under the DDA are extended to public authorities under section 3A “[a public authority] directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourable than he treats a person not having that particular disability…”.

Since the House of Commons remains sovereign unto itself, this protection does not extend to MPs. Nonetheless the legislation clearly demonstrates that the House believes that disabled people entrusted with important public responsibilities should be entitled to protection under the law. Section 141 of the Mental Health Act 1983 would clearly breach the “public authority duty” if extended to the House of Commons.

B.2Mental Health Act 2007

Far from archaic common law, Section 141 of the Mental Health Act was considered by Parliament as recently as last year and subject to a minor amendment under the Mental Health Act 2007.

Hansard recites that the amendment to remove the section was briefly considered in the House of Lords and rejected as a “matter for the other place”, something the other place subsequently chose not to do. The words of Earl Howe though, merit further consideration:

Earl Howe: I, too, congratulate the noble Baroness [Wilkins]. Section 141 is about the most blatant piece of discrimination against mental illness as it is possible to imagine in statute. What message would be sent out if it were ever invoked? The message would be that mental illness is equivalent to gross misconduct, on which the Speaker would have no alternative but to take drastic disciplinary action. It would be equivalent to saying that being mentally ill makes you unfit to work and unfit to represent your constituency. I cannot believe that that is what we want the law to require the Speaker in the other place to do, so I very much hope that the Government will think again about Section 141.

CMental Health and Employment

In November 2007, The Secretary of State for Work and Pensions made an important statement, which Stand to Reason strongly supports:

“…We know that being in work is usually good for people with all types of mental health problems and so there is a clear need to support people with mental health conditions to overcome or manage their problems, helping them to find or remain in work.

I am therefore announcing, in partnership with the Secretary of State for Health, our intention to develop a National Strategy for Mental Health and Work, to ensure a coordinated response across government to the challenges faced by people of working age with mental health conditions and improve their employment chances.

The Strategy will look at issues like stigma and discrimination that often prevent people with mental health problems from seeking help in the first place, let alone trying to find employment.”

Stand to Reason
21 January 2008