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Lord Lucas: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, may I suggest that the Report stage begins again not before 8 p.m.

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Moved accordingly, and, on Question, Motion agreed to.

Legal Advice and Assistance (Scope) (Amendment) Regulations 1995

7.1 p.m.

The Lord Chancellor (Lord Mackay of Clashfern) rose to move, That the draft regulations laid before the House on 20th June be approved [24th Report from the Joint Committee].

The noble and learned Lord said: My Lords, Section 44 and Schedule 4(2) of the Criminal Justice and Public Order Act 1994 abolish committal for trial and replace it with a new procedure of transfer for trial.

This instrument makes a purely technical amendment to the Legal Advice and Assistance (Scope) Regulations 1989, consequential on the transfer for trial provisions. The amendment is intended to preserve the current scope of legal advice and assistance under the Magistrates' Court Duty Solicitor scheme as far as is possible under the new procedure. It will come into force at the same time as the transfer for trial provisions are implemented. That is to say, it will be enforced but it will take effect at the same time as the transfer for trial provisions are implemented. The amendment is intended neither to extend nor to reduce the scope of assistance or representation and I commend this instrument to the House.

Moved, That the draft regulations laid before the House on 20th June be approved [24th Report from the Joint Committee].—(The Lord Chancellor.)

On Question, Motion agreed to.

Baroness Trumpington: My Lords, I beg to move that the House do now adjourn during pleasure until 8 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.2 to 8 p.m.]

Disability Discrimination Bill

Consideration of amendments on Report resumed.

Lord Rix moved Amendment No. 104:

After Clause 45, insert the following new clause:

("Amendment of Representation of the People Act 1983: voting rights

.—(1) In section 5(2) of the Representation of the People Act 1983 ("the 1983 Act"), at the end there shall be inserted—
(c) by reason of detention at any place by virtue of any enactment relating to persons suffering from mental disorder."
(2) Section 5(3) of the 1983 Act shall not apply to a person who is detained at any place by virtue of any enactment relating to persons suffering from mental disorder.
(3) Section 7 of the 1983 Act shall cease to have effect.
(4) In section 12(1) (a) of the 1983 Act the words "section 7(3) above, as to a person who on the qualifying date is a voluntary patient, and" shall cease to have effect.
(5) In section 12(3) (a) of the 1983 Act the words "section 7(3) above, as to a person who on the qualifying date is a voluntary mental patient, and" shall cease to have effect.").

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The noble Lord said: My Lords, with trepidation I introduce an amendment which at this stage I regard rather as a marker than a measure in its final form. Discussions have taken place with officials for some time, and I have exchanged messages with the noble Baroness, Lady Blatch, who has agreed that the issues merit an airing. First, perhaps I may anticipate some points of criticism and explain briefly what the proposals are intended to achieve. That I start with defensive remarks illustrates my nervousness, not because of any weakness in the case for doing what we want to do (which I shall turn to in a moment) but probably because I am flying solo on this occasion and this is the first time that I have been on the Bill immediately after the interval.

I am conscious that to extend the franchise is a matter more appropriate for debate in another place. Had the issue been recognised in good time it would have been raised there and probably successfully dealt with. It was not recognised and so was not raised during the early stages of the Bill. Since the issue is of great importance for some people with learning disabilities, I raise it now and seek your Lordships' indulgence.

Secondly, the intention would be to extend voting rights only to those patients who, if they were being looked after in a different place or different sort of hospital or had not been in hospital quite so long, would have had the vote. Because there may be some misunderstanding on the point, I should like to make clear that in MENCAP's experience a good many people with quite severe learning disabilities in their daily lives are politically aware and interested in politics, knowing that political decisions closely affect their lives. Some of your Lordships may recall that on 22nd May on Second Reading (col. 839 of the Official Report) I quoted a conversation I had had with Miss Simone Aspis in which she had given me her point of view and those of others. Many people with learning difficulties will tell you with great feeling how social services committees have voted to cut day centres or bring in charges. That awareness and interest do not stop at the hospital gates.

There is no intention that voting rights should be extended to people whose learning disability is too severe or whose mental health is too poor for them to be able to decide which person or party to vote for; nor is there any intention that voting rights should be extended to people who have gone to hospitals as convicted criminals and still have an unexpired sentence. However, the reality is that 12 years on from the Representation of the People Act and the Mental Health Act—passed at a time when some of us had our eyes much more on the latter than the former, although I know that my noble friend Lord Allen of Abbeydale raised this very issue in the House in 1985—radical changes in services have left the special provisions about voting in general and registration in particular (which never did make much sense) looking very odd indeed.

Briefly, if one is in one of the old-fashioned mental handicap or mental illness hospitals and not registered to vote elsewhere, one cannot register that hospital as one's home. If one is being looked after in an ordinary hospital or residential home one can use that address.

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To use the old language, the patient in the mental hospital who is not on a section—in other words, a voluntary patient—can register at another address, but only by going through a convoluted process of form filling "without assistance". When it is realised that someone with a learning disability can register as his place of residence the cottage in a Welsh valley where he or she was born but which is now under 200 feet of water because it has since become an artificial lake, it will be understood why hospital staff have as much difficulty with the procedure as the patient. We ought not to require of people the ability to understand what is really incomprehensible as well as, quite properly, the ability to understand what it means to vote.

The sectioned patient cannot name an alternative address. That may sound logical until it is recalled that in certain circumstances we are all entitled to use for voting purposes addresses that we cannot get to at the time. Furthermore, patients who are on a section can and do get leave from hospital. As far as I can see, it is possible for a sectioned patient to be home on leave with his family on polling day but not be allowed to vote because he is not permitted to have an address. What the amendment proposes does is to allow patients who are in a fit state of mind to vote—perhaps hundreds rather than thousands of the hospital population—to register using either the hospital address or their home address.

What appeared to be behind the denial of the right to use the hospital address 10 years ago was the fear that in the days of the very large mental hospitals thousands of patients would be discharged or could be registered and all of them would vote the same way and change the local political geography. It was hardly a tenable argument 10 or 12 years ago; it is certainly not a tenable argument today.

I shall be interested to hear your Lordships' comments and the Minister's reply. I beg leave to move the amendment.

Lord Addington: My Lords, I rise briefly to support the noble Lord's amendment, which raises a very interesting point. I hope that the Government will consider it in detail. I had not thought of it, and the noble Lord's words convinced me that he had a case.

Lord Mackay of Ardbrecknish: My Lords, I am not persuaded that the amendment should be accepted. However, the Government understand the concerns that have been raised by the noble Lord, Lord Rix. As I believe the noble Lord indicated in his speech, the issue is complex. I hope that, the noble Lord having raised it and my having put some replies on the record, MENCAP and MIND will be able to carry on their discussions with officials of the Home Office about some of the detail.

There is no express statutory prohibition on detained mental patients voting at elections. However, Section 7(1) of the Representation of the People Act 1983 prohibits them from being treated as resident at the hospital where they are detained. That may be a funny way to look at the problem, but that is how it is approached. The Home Office has taken the view, based on decisions of the court and as a matter of statutory

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construction, that those detained in mental hospitals cannot be regarded as resident at an address outside the hospital. As a consequence, detained mental patients are effectively prevented from voting.

It is always dangerous to generalise but as a general rule those detained in hospital are suffering from the more severe mental illnesses and the Government think that it is reasonable to draw a line between them and non-detained patients in deciding who may or may not vote. In practice, those detained for short periods (for example, under Section 2 of the Mental Health Act) are unlikely to lose their voting rights because they will probably continue to be registered at their normal home address.

The amendment does not distinguish between various categories of detained patients. While the effect of the amendment would be to exempt from its effect patients who had been transferred to hospital from prison, it would not exempt some other categories of detained patients, such as those committed to hospitals by the courts, among whom are some committed under the Criminal Procedure (Insanity) Act. This is clearly an issue which would need to be looked at in some detail.

Another consideration is that, as the noble Lord, Lord Rix, said, detained mental patients cover a wide spectrum of mental illness. Some are clearly incapable of voting while others may be well able to vote. And there will be those whose mental state varies, who may be capable of voting on some occasions but not on others. It follows that there would be occasions when someone had to decide whether a detained mental patient was or was not capable of voting. I understand that the idea behind the amendment is that such a decision should be taken by electoral officials. However, the Home Office has spoken to a number of those officials who have told the Home Office that it is not a decision that they feel qualified to make. Although it might appear that electoral registration officers already take such decisions in respect of patients in the community, I understand that in practice they are rarely required to make such judgments except in fairly straightforward cases such as those involving a severe degree of mental impairment. Clearly, we would need to consult them formally, but all our initial indications are that they would not be happy about new arrangements which rested on their taking decisions about what they argue are essentially medical judgments.

I believe, too, that there are other issues that would need to be addressed. For example, it seems likely that in practice most detained mental patients would vote by post. The alternative—being escorted to the polling place—seems likely to be the exception rather than the rule. But postal voting in this way does carry some risk of fraud and the Government would want to consider whether existing safeguards on postal voting were sufficient. Similarly, the Government would want to look further at the position on residence.

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