HC Deb 20 January 1997 vol 288 cc626-53

'. For section 271 of the 1995 Act there shall be substituted the following section— "Evidence of vulnerable persons: special provisions

  1. 271.—(1) Subject to subsections (7) and (8) below, where a vulnerable person has been or could be cited to give evidence in a trial the court may appoint a commissioner to take the evidence of that person if—
    1. (a) in solemn proceedings, at any time before the oath is administered to the jury;
    2. (b) in summary proceedings, at any time before the first witness is sworn;
    3. (c) in exceptional circumstances in either solemn or summary proceedings, during the course of the trial, application is made in that regard; but to be so appointed a person must be, and for a period of five years have been, a member of the Faculty of Advocates or a solicitor.
  2. (2) Proceedings before a commissioner appointed under subsection (1) above shall be recorded by video recorder.
  3. (3) An accused shall not, except by leave of the commissioner, be present in the room where such proceedings are taking place but shall be entitled by such means as seem suitable to the commissioner to watch and hear the proceedings.
  4. (4) Subsections (2) to (6), (8) and (9) of section 272 of this Act shall apply to an application under subsection (1) above and evidence taken by a commissioner appointed under that subsection as those subsections apply to an application under subsection (1) of that section and evidence taken by a commissioner appointed on such an application.
  5. (5) Subject to subsections (7) and (8) below, where a vulnerable person has been or is likely to be cited to give evidence in a trial, the court may, on an application being made to it, authorise the giving of evidence by that person by means of a live television link.
  6. (6) Subject to subsections (7) and (8) below, where a vulnerable person has been or is likely to be cited to give evidence in a trial, the court may, on application being made to it, authorise the use of a screen to conceal the accused from the sight of that person while that person is present to give evidence; but arrangements shall be made to ensure that the accused is able to watch and hear as the evidence is given by the vulnerable person.
  7. (7) The court may grant an application under subsection (1), (5) or (6) above only on cause shown having regard in particular to—
    8. 627
    1. (a) the possible effect on the vulnerable person if required to give evidence, no such application having been granted;
    2. (b) whether it is likely that the vulnerable person would be better able to give evidence if such an application were granted; and
    3. (c) the views of the vulnerable person.
  8. (8) In considering whether to grant an application under subsection (1), (5) or (6) above the court may take into account, where appropriate, any of the following—
    1. (a) the nature of the alleged offence;
    2. (b) the nature of the evidence which the vulnerable person is likely to be called upon to give;
    3. (c) the relationship, if any, between the person and the accused; and
    4. (d) where the person is a child, his age and maturity.
  9. (9) Where a sheriff to whom an application has been made under subsection (1), (5) or (6) above would have granted the application but for the lack of accommodation or equipment necessary to achieve the purpose of the application, he may by order transfer the case to any sheriff court which has such accommodation and equipment available, being a sheriff court in the same sheriffdom.
  10. (10) The sheriff court to which a case has been transferred under subsection (9) above shall be deemed to have granted an application under, as the case may be, subsection (1), (5) or (6) above in relation to the case.
  11. (11) Where a court has or is deemed to have granted an application under subsection (1), (5) or (6) above in relation to a vulnerable person, and the vulnerable person gives evidence that he recalls having identified, prior to the trial, a person alleged to have committed an offence, the evidence of a third party as to the identification of that person by the vulnerable person prior to the trial shall be admissible as evidence as to such identification.
  12. (12) In this section—

Brought up, and read the First time.

Lord James Douglas-Hamilton

I beg to move, That the clause be read a Second time.

Madam Speaker

With this, it will be convenient to discuss also the following: New clause 7—Protection of mentally disordered witnesses— '—After section 271 of the 1995 Act (evidence of children) there shall be inserted the following section: "Evidence of Vulnerable Witnesses

  1. 271A—(1) subject to subsections (7) and (8) below, where a vulnerable witness could be or has been cited to give evidence in a trial the court may appoint a commissioner to take the evidence of the vulnerable witness if—
    1. (a) in solemn proceedings at any time before the oath is administered to the jury;
    2. (b) in summary proceedings, at any time before the first witness is sworn;
    3. (c) in exceptional circumstances in either solemn or summary proceedings, during the course of the trial, 628 application is made to the court in that regard; but to be so appointed a person must be, and for a period of at least five years have been, a member of the Faculty of Advocates or a solicitor.
  2. (2) Proceedings before a commissioner appointed under subsection (1) above shall be recorded by video recorder.
  3. (3) An accused shall not except by leave of the commissioner, be present in the room where such proceedings are taking place but shall be entitled by such means as seem suitable to the commissioner to watch and hear the proceedings.
  4. (4) Subsections (2) to (6), (8) and (9) of section 272 of this Act shall apply to an application under subsection (1) above and evidence taken by a commissioner appointed on such an application.
  5. (5) Subject to subsections (7) and (8) below where a vulnerable witness has been or is likely to be cited to give evidence in a trial, the court may, on an application being made to it, authorise the giving of evidence by the vulnerable witness by means of a live television link.
  6. (6) Subject to subsections (7) and (8) below where a vulnerable witness has been or is likely to be cited to give evidence in a trial the court may on application being made to it, authorise the use of a screen to conceal the accused from the sight of the vulnerable witness while the vulnerable witness is present to give evidence; but arrangements shall be made to ensure that the accused is able to watch and hear as the evidence is given by the vulnerable witness.
  7. (7) The court may grant an application under subsections (1), (5) or (6) above only on cause shown having regard in particular to—
    1. (a) the possible effect on the vulnerable witness if required to give evidence, no such application having been granted;
    2. (b) whether it is likely that the vulnerable witness would be better able to give evidence if such application were granted; and
    3. (c) the views of the vulnerable witness.
  8. (8) In considering whether to grant an application under subsections (1), (5) or (6) above, the court may take into account, where appropriate, any of the following—
    1. (a) the age and maturity and degree of disorder of the witness:
    2. (b) the nature of the alleged offence;
    3. (c) the nature of the evidence which the vulnerable witness is likely to be called on to give; and
    4. (d) the relationship, if any, between the vulnerable witness and the accused.
  9. (9) Where a Sheriff to whom an application has been made under subsections (1), (5) or (6) above would have granted the application but for the lack of accommodation or equipment necessary to achieve the purpose of the application, he may by order transfer the case to any Sheriff Court which has such accommodation and equipment available, being a Sheriff Court in the same Sheriffdom.
  10. (10) The Sheriff Court to which a case is transferred under subsection (9) above shall be deemed to have granted an application under, as the case may be, subsections (1), (5) or (6) above in relation to the case.
  11. (11) Where a court has or is deemed to have granted an application under subsections (1), (5) or (6) above in relation to a vulnerable witness and the vulnerable witness gives evidence that he recalls having identified prior to the trial, a person alleged to have committed an offence, the evidence of a third party as to the identification of that person by the vulnerable witness prior to the trial shall be admissible as evidence as to such identification.
  12. (12) In this section—

New clause 10—Evidence of vulnerable witness: special provisions— 'After section 271 of the 1995 Act (evidence of children) there shall be inserted the following section:— 'Evidence of vulnerable witness: special provision—

  1. '271A-(1) Subject to subsections (7) and (8) below, where a vulnerable witness could be or has been cited to give evidence in a trial the court may appoint a commissioner to take the evidence of the vulnerable witness if—
    1. (a) in solemn proceedings, at any time before the oath is administered to the jury;
    2. (b) in summary proceedings, at any time before the first witness is sworn;
    3. (c) in exceptional circumstances in either solemn or summary proceedings, during the course of the trial,
    application is made to the court in that regard; but to be so appointed a person must be, and for a period of at least five years have been, a member of the Faculty of Advocates or a solicitor.
  2. (2) Proceedings before a commissioner appointed under subsection (1) above shall be recorded by video recorder.
  3. (3) An accused shall not, except by leave of the commissioner, be present in the room where such proceedings are taking place but shall be entitled by such means as seem suitable to the commissioner to watch and hear the proceedings.
  4. (4) Subsections (2) to (6), (8) and (9) of section 272 of this Act shall apply to an application under subsection (1) above and evidence taken by a commissioner appointed under that subsection as those subsections apply to an application under subsection (1) of that section and evidence taken by a commissioner appointed on such an application.
  5. (5) Subject to subsections (7) and (8) below, where a vulnerable witness has been or is likely to be cited to give evidence in a trial, the court may, on an application being made to it, authorise the giving of evidence by the vulnerable witness by means of a live television link.
  6. (6) Subject to subsections (7) and (8) below, where a vulnerable witness has been or is likely to be cited to give evidence in a trial, the court may, on application being made to it, authorise the use of a screen to conceal the accused from the sight of the vulnerable witness while the vulnerable witness is present to give evidence; but arrangements shall be made to ensure that the accused is able to watch and hear as the evidence is given by the witness.
  7. (7) The court may grant an application under subsections (1), (5) or (6) above only on cause shown having regard in particular to—
    1. (a) the possible effect on the witness if required to give evidence, no such application having been granted;
    2. (b) whether it is likely that the witness would be better able to give evidence if such application were granted; and
    3. (c) the views of the witness.
  8. (8) In considering whether to grant an application under subsections (1), (5) or (6) above, the court may take into account, where appropriate, any of the following—
    1. (a) the age and maturity and degree of disorder of the witness;
    2. (b) the nature of the alleged offence;
    3. (c) the nature of the evidence which the witness is likely to be called on to give; and
    4. (d) the relationship, if any, between the witness and the accused.
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  9. (9) Where a sheriff to whom an application has been made under subsections (1), (5) or (6) above would have granted the application but for the lack of accommodation or equipment necessary to achieve the purpose of the application, he may by order transfer the case to any sheriff court which has such accommodation and equipment available, being a sheriff court in the same sheriffdom.
  10. (10) The sheriff court to which a case is transferred under subsection (9) above shall be deemed to have granted an application under, as the case may be, subsections (1), (5) or (6) above in relation to the case.
  11. (11) Where a court has or is deemed to have granted an application under subsections (1), (5) or (6) above in relation to a witness and the witness gives evidence that he recalls having identified, prior to the trial, a person alleged to have committed an offence, the evidence of a third party as to the identification of that person by the witness prior to the trial shall be admissible as evidence as to such information.
  12. (12) In this section—

Government amendment No. 227.

Lord James Douglas-Hamilton

For the convenience of hon. Members I also propose to speak to new clauses 7 and 10, which are in similar terms to each other, as all the clauses are aimed at extending to a wider category of vulnerable witness the provisions available to children who give evidence in criminal proceedings. Where the two versions of the clause differ is that mine is restricted in its application to witnesses suffering from significant impairment of intelligence and social functioning, while those tabled by Opposition Members apply to a witness suffering from a mental illness or mental handicap, however caused or manifested. Otherwise, the clauses are identical in effect in that they apply to a wider category of vulnerable witness the existing provisions that enable vulnerable children to give evidence in criminal proceedings by a range of non-conventional means.

Dr. Godman

In how many courts in the land is it feasible to apply the conditions in section 271 of the Criminal Procedure (Scotland) Act 1995?

Lord James Douglas-Hamilton

The amended version of that section will enable adult witnesses who suffer from significant impairment of intelligence and social functioning, as opposed to mental illness, to benefit from the alternative means of giving evidence in cases in which they might experience greater difficulty in giving evidence by conventional means. There is a difficulty in giving precise numbers, because of definitional problems in relation to mental illness. Perhaps we can return to that in a moment.

Dr. Godman

Will the Minister give way?

3.45 pm
Lord James Douglas-Hamilton

I want first to deal with the points raised in Committee by the hon. Member for Dumbarton (Mr. McFall).

At that time, I gave him a commitment, in response to an amendment, that my noble Friend the Lord Advocate would bring back a revised clause for consideration in another place, as the need for consultation at that time meant that it was unlikely that we would be in a position to table a suitable amendment for consideration by hon. Members.

I am, however, delighted that the consultation process was completed in time to enable me to table the new clause for consideration today. Hon. Members will, I am sure, understand that the need to give due consideration to the responses received during the consultation process meant that we were not in a position to table the new clause as far in advance of today's debate as we would have wished. I should like to mention, however, that we have benefited from the responses to the consultation and from discussions that officials have had with, among others, representatives of Enable, in formulating the new clause.

Revised section 271 of the 1995 Act will apply to two categories of witnesses falling within the definition of vulnerable persons: a child, or a person over the age of 16 years who appears to the court to be suffering from a significant impairment of intelligence and social functioning. That formulation will enable adults suffering from a learning disability, however caused, to benefit, in appropriate cases, from the provisions of the clause.

Mr. Dennis Canavan (Falkirk, West)

According to the Scottish Association for Mental Health, most if not all mental health legislation gives equal protection to people who suffer from mental disorder, mental illness or learning disability. Why are the Government departing from that and setting a precedent in this case?

Lord James Douglas-Hamilton

We are discussing a rather different subject. We could be dealing with a serious murder case, and there are degrees of mental illness. Having considered the matter thoroughly, my noble Friend the Lord Advocate does not feel able to go as far as the Opposition would recommend. I shall explain the position, after which the hon. Gentleman may want to reply.

My noble Friend the Lord Advocate considered carefully representations made to him during the consultation process by bodies representing the mentally impaired that the provisions should also be extended, explicitly, to certain witnesses suffering from mental illness as opposed to mental handicap. That is the main area of difference between the reformulation of section 271 of the 1995 Act which I tabled as new clause 11, and the new sections 271 A of that Act tabled by Opposition Members as new clauses 7 and 10.

My noble Friend has concluded that it is appropriate to maintain the distinction between the two categories of witness. Witnesses who are mentally impaired through mental handicap from birth, or from some other and subsequent cause, such as injury, are inherently at risk and therefore in need of protection. The same cannot necessarily be said of those in the wide category of witnesses who may be suffering from a mental illness. Even a clinically well recognised mental illness will not necessarily render a witness inherently vulnerable for the purpose of giving evidence by conventional means. I am, however, prepared to discuss with the Lord Advocate tabling a further amendment that would go some way to meeting the concerns reflected in the Opposition's new clauses.

A range of provisions that will assist witnesses with particular difficulties is already in place. For example, if a witness, because of his mental condition, is unfit or unable to give evidence in a competent manner, the hearsay evidence provisions of section 259 of the Criminal Procedure (Scotland) Act 1995 enable the court to consider evidence of an earlier statement made by him. Section 260 of that Act enables a witness who gives evidence in court to adopt as part of his evidence an earlier statement made by him. Such statements may be in writing or in the form of a video or audio recording.

Those provisions are still relatively new. While those who practise regularly in the criminal courts will be familiar with them, they may not be well known to others who have less frequent contact with the criminal process. Their potential to assist a witness who may be suffering from a mental illness to give evidence may not, therefore, be widely recognised. I hope that hon. Members will accept that the provisions of the 1995 Act will help a significant number of vulnerable witnesses, including those suffering from mental illness, to give evidence and so increase the number of cases in which proceedings may be brought.

In conclusion, I stress the importance that we attach to maintaining the well-established principle that the court in criminal proceedings should have access to the best available evidence. Where a competent witness is available to give oral evidence to the court in person, the personal attendance of that witness must be preferred to any other means by which evidence might be given. Only in exceptional circumstances should derogations from that general principle be permitted. We recognise that the inherent vulnerability of children, and of adults who suffer from a significant impairment of intelligence and social functioning, is sufficiently exceptional to justify such a derogation.

As I said, I am prepared to discuss with the Lord Advocate extending revised section 271 to offer protection to some witnesses who are mentally ill, but only to those who are suffering to such an extent that they are subject to orders under the Mental Health (Scotland) Act 1984.

Dr. Godman

Will the Minister give way?

Lord James Douglas-Hamilton

In a moment.

Such an extension would recognise the fact that the person's predicament might warrant the protection afforded by the revised section 271 and would meet some of the difficulties in definition that would arise from simply extending the provision to the mentally ill while providing a definition that would assist the court. I hope that hon. Members will accept that there are good reasons for what some will regard as the restricted scope of my amendment and withdraw their new clauses. I hope that new clause 11 and Government amendment No. 227 will accordingly be welcomed by the House.

Dr. Godman

Has the Minister finished or is he giving way?

Madam Speaker

Order. The Minister is not giving way; he seems to have finished. However, we are having a debate and if the hon. Gentleman holds his fire, he will be able to speak later.

Mr. John McFall (Dumbarton)

I thank the Minister for his consideration of new clause 11 and for bringing it to the Floor after speaking to Enable, the Scottish Association for Mental Health and other groups. However, I find it strange that he intends to reconsider the matter, because we pressed him strongly in Committee, where I asked him for a firm undertaking that he would meet those organisations before the Bill returned to the Floor. Now we find that he is thinking about further consultation, which shows the shakiness of the ground that he occupies. However, he has gone some way and I congratulate him on that.

The Minister knows that the amendments arose in large part from the "Front Line Scotland" programmes that showed that abuse of people with learning difficulties was going unpunished because the victims felt that they were unable to give evidence in a court of hearing. In Committee, I tabled an amendment with the assistance of Enable, the Law Society of Scotland and the Scottish Association for Mental Health, which would have provided protection for vulnerable witnesses who had to appear in the criminal courts.

The amendment would offer people with a mental disorder the possibility of protection similar to that currently given to child witnesses. I am well aware of the good work that my hon. Friend the Member for Greenock and Port Glasgow (Dr. Godman) has done over the years in Parliament on that issue, in which he has a deep interest. Such protection includes taking evidence in advance by means of video recordings; the giving of evidence by a live television link; and the use of screens to ensure that the witness does not have to see the accused person.

The Government have now accepted that witness protection should be given to witnesses with a learning disability, but we are concerned that they have not seen fit to extend it to people with mental health problems. We feel that that protection should be given to all witnesses who could be vulnerable because of mental disorder, including those with mental health problems.

Why should mentally ill people have vulnerable witness protection? First, it should be provided in the interests of justice. If a physically disabled person could not gain access to the criminal courts, attempts would be made to help him. If a person is inhibited by a mental disability from appearing in the courts, or can do so only at great risk to his health, the courts should make equal efforts to accommodate him.

Strong concern has been expressed that the stress of court proceedings could make a person with a mental illness an unreliable witness. A witness suffering from manic depression, for example, could appear well in court but become ill within a few hours, despite being on medication. Stress can lead a person to lose touch with reality or become so depressed that he cannot function or think properly. An environment away from the court, where that person would not feel stressed, would help him to give his evidence more accurately and calmly. Whereas it is thought that an appearance at court makes it more likely that most witnesses will tell the truth, the reverse could be true for some people living with mental illness.

Secondly, witness protection should be extended to those suffering from a mental disorder in the interests of law and order. If mentally ill people are the victims of crime and need help to give evidence, such help should be offered. If not, crimes will go unpunished and mentally ill people will be denied the protection of the criminal justice system.

Thirdly, such witness protection is in the interests of public health when giving evidence could cause a person to suffer a relapse. We are concerned that the Government do not appear to have given due consideration to that possibility. The Minister will realise that mental illness is a fluctuating condition and most people with a chronic mental health problem know that stress is a major cause of a relapse. That is true of the main and most distressing illnesses such as schizophrenia and manic depression. For that reason, associations such as the Scottish branches of the National Schizophrenia Fellowship and the Manic Depression Fellowship support our new clause, which would provide protection for vulnerable witnesses.

The Minister will appreciate that it cannot be in anyone's interest when people who manage to live with a serious mental illness precipitately suffer a relapse, perhaps involving a costly hospital admission and great distress to that person and his family.

Lastly, witness protection should be provided not least because of the terms of the Disability Discrimination Act 1995. It seems ironic that the Government, who only recently enacted legislation to outlaw discrimination on the grounds of disability, should now be seen to discriminate against people with mental illness. In theory, they, too, are protected by the Act. If the Government accept that some people with learning disabilities might need vulnerable witness protection, why can they not accept that some mentally ill people may also need it?

Not all those suffering from mental ill health will need to take advantage of the proposed protection. Many will be able to appear in court, while others will be too ill to do so. Such individuals may include those living in the community, perhaps in their own flat, after being discharged from a long-stay hospital. They may be subject to petty crime or harassment. The Scottish Association for Mental Health and other groups have provided numerous such examples, and have told us that the police often insist on no prosecution because of doubts about whether the victim could take part in court proceedings.

Another example could be a resident of a long-stay hospital or nursing home who alleges abuse by the staff. There have been recent reports of abuse in hospitals for the elderly, notably in Glasgow. A hospital patient may be legally able to give evidence if he or she is able to understand the nature of the oath and may need to speak the truth. But the prosecution may be unwilling to take the case further through fear of how the patient may appear in court. Taking evidence through a commissioner in familiar surroundings may be the answer, or a video link with the court could be appropriate.

The last sort of person is the victim of serous crime. The Scottish Association for Mental Health told us that one woman had come to it alleging that she had been raped. The alleged incident took place south of the border, where the Crown Prosecution Service took no further action owing to doubts as to whether the woman could cope with the ordeal of court proceedings. Some of the protection suggested might have enabled it to prosecute and could perhaps have prevented further assaults on vulnerable women.

4 pm

On the subject of safeguards against abuse, the Government seem concerned that, if "mental illness" were allowed as a ground for applying for vulnerable witness protection, that would open the floodgates and allow anyone who might find court proceedings stressful to get a doctor's certificate exempting him from proceedings. However, new clause 7 has safeguards built into it. The court has the final decision as to whether the person has a mental disorder that justifies the use of vulnerable witness protection. The court can ask for further evidence before making a decision. It could call for psychiatric reports rather than simply relying on a report from a general practitioner. The court would be free to dismiss frivolous claims such as that of a person who is normally well claiming that his anxiety about a court appearance was a mental illness. The court would not be obliged to accept that excuse.

The Minister knows that Enable has petitioned him on another issue related to new clause 11—the questioning of people with mental disorders. In Committee, the Minister said that the proposal contained in an amendment that I tabled was desirable and he promised to ensure that an appropriate adult would be present during police interviews. But in meetings that Enable and the Law Society subsequently had with the Minister—for which they were grateful—the Government still expressed reservations about the statutory provision on the basis that it would set a precedent in Scots law and that it would be constitutionally inappropriate for the Government to be seen to be directing the police as they carried out their functions.

However, we understand—I would like the Minister to elaborate on this—that the Government want to introduce non-statutory guidance to the police on the appropriate adult scheme. As I mentioned to the Minister in Committee, there is one problem with that suggestion: non-statutory guidance for questioning such witnesses has been in place since 1990, with little effect. Even were it to be improved, there is no guarantee that it will be operated or that the police or caring agencies will find the appropriate resources to set up and manage such a scheme.

Will the Minister reconsider the issue? He knows the reservations that we expressed in Committee over the Quigley case, where the recommendations were in operation, but the police provisions failed. The Minister must take account of that issue, about which we are seriously concerned. We are grateful for some movement from the Government, but it is not enough for us to have confidence in the Government's new clause, so I press our case.

Dr. Godman

I compliment the Minister on the measure, but I do not think that it is extensive enough. It is fair to say that it represents an improvement in the continuing development in the treatment of vulnerable witnesses in our judicial proceedings.

I asked my earlier question because I am concerned about the extent of the provision of closed circuit television in our courts. The Minister knows that there is such a system in Greenock sheriff court; it is a modern installation that has been used on a number of occasions. The first occasion was characterised by the child witness telling the prosecuting counsel where to go and how to get there and walking out of the interview room, but there is no doubt that the system has been a success. There may be cases where people have to travel long distances in order to give evidence through a CCTV system.

Will the Minister tell me whether the promise he has just made would allow a person suffering from schizophrenia or manic depression to be given the sort of protection outlined in the Criminal Procedure (Scotland) Act 1995? Again, I tried to intervene make this point earlier. The Minister referred to an order which dealt with persons suffering from certain conditions. The Lord Advocate or the Minister—and possibly their officials, too—might be concerned about the ability of some individuals to fake the symptoms of schizophrenia or manic depression.

In a recent case, a man was sent to the state hospital, Carstairs, ostensibly suffering from schizophrenia. Later, when this malingerer was caught out, it was alleged that he had fooled several psychiatrists. I believe—the Minister will be able to confirm this—that the procurator fiscal involved had the man charged for that form of medical malingering. Are the Government concerned that people might try to fake such illnesses?

To be fair-minded, I admit that there are cases, such as the man at Carstairs, of persons involved in criminal proceedings faking schizophrenia. I was told by a psychiatrist of three cases in which individuals were able to fake, fairly cleverly, some of the symptoms of schizophrenia. All three had had psychedelic experiences induced by the use of LSD, so they had some experience of the sort of mental state suffered by a person suffering from schizophrenia. However, I assure the Minister that such cases are rare and that the literature does not demonstrate that such people are successful—inevitably, they are caught out by psychiatric examinations.

If the Minister has any worries in that respect, I should have thought that the individual's medical history would be a powerful form of assessment, as would examination by psychiatrists who are skilled in the relevant field. I therefore hope that his reluctance to extend his new clause is not prompted by the fear of people faking such illnesses. We are, of course, talking about witnesses and not those charged with offences. It would be perfectly in order to extend the new clause to allow individuals suffering from some form of schizophrenia or those bedevilled by manic depression to be given the same sort of protection that is now afforded to young children in our courts.

What the Scottish Association for Mental Health has to say in its brief is well worth the Minister's attention when he is considering whether to extend the new clause. At page 2, paragraph 5, the brief states: It can surely be in nobody's interests that people who are managing to live with a major mental illness should be precipitated back into relapse, perhaps involving a costly hospital admission, and causing great distress to them, their families and friends. The Sheriffs Association, which represents all serving sheriffs in Scotland, supports this view, as does the Law Society of Scotland. As has been mentioned, the Disability Discrimination Act 1995 provides a measure of protection to persons suffering from mental illness.

The same brief states in the following paragraph: Under the Disability Discrimination Act. It seems ironic that a Government which only last year published an Act outlawing discrimination on the grounds of disability, should now discriminate against people with mental illness, who are in theory protected by the Act. Is there a discrepancy—I look forward to the Minister's answer—between the new clause and the relevant section of the Disability Discrimination Act? If there is, any anomaly should be eliminated in the interests of such people.

The brief continues: If the Government accepts that some learning disabled people might need vulnerable witness protection why can it not accept that some mentally ill people may as well? Has the Minister decided against extending the new clause on the ground that a case involving, for example, evidence given by someone suffering from schizophrenia or manic depression which leads to a conviction of the accused person might be appealed by the defendant's lawyers? I would not have thought that that would be the case. I cannot think of a case in Scotland or, indeed, south of the border in England and Wales where a conviction that involved the giving of evidence by a vulnerable witness using CCTV or evidence taken on commission has been appealed on the ground that the accused was unable to face one of the witnesses for the prosecution. While the measure being offered by the Minister today is to be welcomed, it is regrettable that it has not gone further in seeking to protect people who suffer from a mental illness.

I have already mentioned the fact that, in a few cases over the past 20 years, both here and in America, people have, for a while, been able to simulate the symptoms exhibited by genuine schizophrenics or manic depressives. However, such cases are extremely rare and should not deter the Government from extending this welcome measure.

Mr. Menzies Campbell

This issue should not be a partisan one that divides the House along party lines. It raises an important feature of the nature of criminal procedure in our courts and the extent to which we are willing to create circumstances in which any individual, whatever handicap he or she may be subject to, is able to contribute to the judicial process.

Like other hon. Members, I have received the brief from the Scottish Association for Mental Health, but I do not intend to refer to its terms in detail. The hon. Member for Dumbarton (Mr. McFall) read eloquently from the brief and the issues are clear and positive in the minds of those participating in this debate. The strength of the case made by the hon. Gentleman was if not overwhelming, at least of such a nature that the Minister should think carefully about whether he should take the matter away and give it further consideration.

The basis of the Government's opposition to the extension being proposed appears to rest in that rather hoary old statutory chestnut, the floodgates argument. In this particular case, though, as subsection (7) of the new clause makes clear, The court may grant an application under subsection (1), (5) or (6) above only on cause shown". That is to say, the court has to be satisfied in any particular case that it is legitimate to go ahead in the light of the procedures set out in the new clause; and the court must have regard to the criteria set out there.

4.15 pm

Furthermore, in subsection (8), the court "may take into account" a number of additional criteria.

It seems to me that the floodgates argument lies behind the Government's attitude—but there are plenty of dams in the way of the flood to prevent abuse of the proposals. The Government seem anxious, however, that the provision, if enacted, would be the subject of abuse. So hedged about are the circumstances in which these procedures can be used, however, that there is no risk of any serious abuse whatever. That being so, why should those whose vulnerability may arise from a mental disorder be excluded from the personal advantages that the new clause seeks to create? The Minister would be well advised to give that serious consideration.

Section 271 of the 1995 Act stipulates that a person appointed as a commissioner must be, and for a period of five years have been, a member of the Faculty of Advocates or a solicitor. So qualification to be a commissioner under current law, restated in this legislation, is merely membership of either the Faculty of Advocates or the Law Society of Scotland. If vulnerability conditions are to be extended so that more commissions may need to be held, the Government will be wise to think again about whether mere membership of one of those bodies is qualification enough.

I was once appointed a commissioner on behalf of the High Court to take evidence from a witness who was not expected to survive until the date of the trial. Indeed, that proved to be so. I remember that a difficult question arose about an objection taken to certain of the evidence being sought to be led. If, therefore, we are to extend the circumstances in which a commissioner may require to operate, it will be not just membership of these bodies but practical experience that will be important. So I suggest that the Minister consider qualifications by way of experience before extending the number of occasions when commissioners may be asked to sit in judgment.

I reiterate: this should not be a partisan matter. The speeches made thus far today have clearly shown the mood of the House. The Minister would do himself a lot of good—and would ultimately do the administration of justice a great deal of good—if he thought again about this point.

Mr. Canavan

I speak in support of new clause 7, which was so ably introduced by my hon. Friend the Member for Dumbarton (Mr. McFall). I did not serve on the Standing Committee dealing with the Bill, but I can well understand the desire to afford special protection in court proceedings to vulnerable persons, including taking evidence in advance on video recordings, giving evidence on live television, and the use of screens.

New clause 11 restricts the definition of "vulnerable person" to a child or any person of or over the age of 16 years who appears to the court to suffer from significant impairment of intelligence and social functioning", whereas new clause 7 extends the definition to include vulnerable witnesses, which means a witness aged 16 years or over whom the court determines to be suffering from mental disorder as defined in section 1 of the Mental Health (Scotland) Act 1984". That seems to be a tight definition. As the hon. and learned Member for Fife, North-East (Mr. Campbell) just said, it would not exactly open the floodgates, so I cannot see the Minister's reasoning in resisting the new clause.

There is wide support for the principle of new clause 7 throughout the country, particularly among professionals and voluntary organisations that specialise in caring for people who suffer from mental illness. For example, a letter from Anne Wallace on behalf of Falkirk District Association for Mental Health says: It is the view of FDAMH that at present some individuals with mental illness find it impossible to appear in court as witnesses because of the possible stress of the court appearance and of fear of ridicule or intimidation. Those feelings are echoed by the Scottish Association for Mental Health, which says in a letter: We have experience of the distress caused to people who are mentally ill when faced with court proceedings. One case which came to us was of a person being harassed in her home by a group of local teenagers. The police wanted to prosecute, but the woman was unable to cope with the prospect of confronting the teenagers in court and so the abuse continued. If such circumstances are allowed to prevail, justice will be denied to many people with mental illness, with the result that crimes will go unpunished and many people will be denied the protection of the criminal justice system. Alternatively, they may be persuaded to go, or even be pressurised into going, to court to give evidence and the whole experience may be such an ordeal that they risk having a further mental breakdown.

The Minister is a reasonable man and I am sure that he does not want those circumstances to develop or be allowed to continue. I hope that he will be persuaded to think again and ensure that the courts give adequate protection to all witnesses, including witnesses who may be vulnerable because of a mental disorder.

I think that I heard the Minister say earlier that he was willing to consider the matter further and possibly introduce an appropriate amendment in the House of Lords. Why on earth has he not introduced an appropriate amendment in this House? What is wrong with new clause 7, which seems to be technically good, with no drafting faults? Why cannot the Minister just accept new clause 7 and help to ensure that people who suffer from mental illness and are called as witnesses in court have a much fairer deal?

Mrs. Maria Fyfe (Glasgow, Maryhill)

May I add my own brief comments on new clause 7, which I too believe should not divide the House? Will the Minister answer some questions about vulnerable child witnesses who do not necessarily have any mental disorder? He will recall that the matter was raised in Committee, and I remember the Secretary of State nodding in agreement with me earlier when we discussed the matter in the Scottish Grand Committee.

I pointed out that there have been occasions when someone has been accused of committing dreadful crimes against a very young child, and the child's evidence has not been called, on the ground that he or she is too young. It is obvious that some people might choose such young victims for the very reason that the children are too young for their evidence to be listened to seriously in court. The Minister may remember that we discussed that in Committee.

There should be ways of ensuring that a child who is capable of giving a truthful account of events and who is capable of accurate recall should not have his or her evidence disregarded on the ground that he or she cannot grasp abstract concepts such as telling the truth and understanding an oath.

I see nothing in new clause 11 in that regard. If the Minister plans to take the issue forward in the House of Lords, I should be glad to hear from him about that tonight. I hope that he has not simply forgotten about the matter, which caused concern in Committee. The Bill should not complete its passage without addressing the possibility that the evidence of very young children might be disregarded because the children are so young.

Ms Roseanna Cunningham (Perth and Kinross)

I shall speak to new clause 10, which is similar to new clause 7. Much of what I intended to say would echo what has already been said by other Opposition Members, so I shall not go over the same ground.

We support the principle of extending protection to adults with learning disabilities, for which the Government new clause provides. As has been pointed out, however, that still excludes people with mental illness. Opposition Members seek a provision to include such people.

I am unclear why the Government seem unable to accept that the mentally ill should be provided with that protection. I have listened to the Minister. The hon. and learned Member for Fife, North-East (Mr. Campbell) echoed my impression that the floodgates argument might underlie the Government's attitude. Will the Minister tell us his specific concerns about extending the provision to include those who are mentally ill? I hope that he will accept that Opposition Members are genuinely puzzled about his refusal thus far to countenance that extension.

The concerns of various organisations have been rehearsed, and they are shared by Opposition Members. I ask the Minister to bear in mind the point made by the hon. Member for Greenock and Port Glasgow (Dr. Godman), that victims are witnesses too. When we speak of extending protection for vulnerable witnesses, we generally mean victims, although in some cases we mean witnesses in the strict sense of the word.

Where necessary, we should extend all the protection we can, within the law, to people who are vulnerable. I do not understand the argument that those who are mentally ill do not come within the group classified as vulnerable. I beg the Minister to tell us clearly what the problem has been thus far.

Dr. Godman

I remind the hon. Lady that more and more mentally ill people are living in the community as a result of so-called community care policy. If they are more vulnerable as a consequence—as many obviously are—they are surely entitled to the protection that we traditionally afford to children.

4.30 pm
Ms Cunningham

The hon. Gentleman makes an extremely good point, and I thank him for his timely intervention. An increasing number of such persons on the street means an increase in the likelihood of their appearing in court as vulnerable witnesses. As a consequence of the nature of the lives that many must lead, they increasingly appear in court as victims of crime or as witnesses to incidents.

We are discussing those with serious mental illnesses such as manic depression and schizophrenia, and I do not think that hon. Members would deny the serious effects of those illnesses on individuals and their ability to cope with ordinary, day-to-day life. If their ability to cope with daily life is severely affected—as it clearly is—they will not be able to cope with the extra stress of appearing in court.

The fact is that many people who do not have mental disorders find formal court proceedings very stressful. I refer not only to High Court proceedings for murder but to all sorts of proceedings. Elderly people may feel stressed if compelled to give evidence in court. My mother had to give evidence in a summary case and she was quite worried about the prospect. She is in her 80s and does not suffer from any illness or disorder. If ordinary folk suffer such stress, the pressure on someone who suffers from mental illness must be even greater. As other hon. Members have said, I fear that cases simply will not go to court because people are not capable of dealing with the stress or because valuable witnesses to serious incidents cannot be considered reliable witnesses during court proceedings. That means that their evidence may be lost in serious cases.

These issues are important to the way in which our law operates. We are very proud of our system of justice in Scotland. It has its faults—as does every justice system in the world—but we are justly proud of the way that the system in Scotland has developed, the traditions that have grown up over the years and the way in which it has been able to change and adapt to circumstances.

I urge the Government to take this commendable new clause on board, as it is important to stress protection for vulnerable witnesses. I shall not repeat the list of those who support the measure because other hon. Members have referred to them already. I support the earlier comments about new clauses 7 and 10 and the in-built protections to prevent the floodgates from opening—if that is the reason for the Minister's concern.

The Mental Health (Scotland) Act 1984 and the Disability Discrimination Act 1995 already allow certain concessions, but the new clause has in-built protection that would allow the court to make the final decision. I think that the court can make such a decision—it already has that experience to a certain extent—and it should be allowed to do so.

Dr. Godman

If new clause 10 or new clause 7 is successful, does the hon. Lady anticipate that a commissioner taking evidence on commission from someone suffering from schizophrenia or manic depression would be advised by a medical practitioner? I am thinking of someone suffering from schizophrenia, who had been released into the community and had not taken his or her medication when called for interview by the commission.

Ms Cunningham

That is an important issue. In cases under the Mental Health (Scotland) Act 1984 or the Disability Discrimination Act 1995, if there is any doubt about an individual's mental state, the court has the opportunity to acquire medical evidence from a psychiatrist. It may be easier or harder to get evidence at particular times of the day or week or in particular situations.

As I have said already, I am puzzled why the Minister has thus far set his face against an extension to include those who are mentally ill. The majority of people would assume that those who are mentally ill would be considered vulnerable under anybody's classification and for any reason. I ask the Minister to consider the issue seriously.

Mr. McAllion

I also support new clause 7, spoken to so ably by my hon. Friend the Member for Dumbarton (Mr. McFall), and oppose the new clause moved by the Minister.

My hon. Friend the Member for Greenock and Port Glasgow (Dr. Godman) raised a small but important point with the Minister, who promised to return to it, but he did not. It relates to the facilities necessary to implement the new clauses, and their availability in courts around Scotland. The Minister said that new clause 11 extended the existing provisions for evidence being given by children to a new category of vulnerable persons. By definition, that must mean that there will be increased demand for those facilities.

New clauses 11 and 7 would require a range of technical equipment to be available in Scottish courts. For example, subsection (2) of new clause 11 says: Proceedings before a commissioner appointed under subsection (1) above shall be recorded by video recorder. The new clause goes on to say that the accused shall not be present during the proceedings, but shall be entitled by such means as seem suitable to the commissioner to watch and hear the proceedings. He will therefore have to be in another room, perhaps in the same building, and have access to what is going on, perhaps by some remote audio-visual means.

The new clause goes on to say that those covered by the provisions can give evidence by means of a live television link. It also says that screens will have to be provided so that the witness does not have to be in court at the same time as the accused, but that the accused must have some means of seeing and hearing the evidence.

A range of technical facilities must be made available. I discovered only this afternoon that Glasgow High Court does not have such facilities. Any trial there involving anyone who came under the new clause would have to go to Glasgow sheriff court, where the facilities are available. That would result in delays, because Glasgow sheriff court has a long backlog of outstanding cases. I do not know about Dundee High Court—I suppose that it meets in Dundee sheriff court, and that those facilities are available. When asked by my hon. Friend the Member for Greenock and Port Glasgow how many courts in Scotland had such facilities, the Minister could not give a coherent or sensible reply—not unusual for him.

Dr. Godman

I can confirm that sheriff court No. 5 in Glasgow has CCTV. I have seen it in operation. My hon. Friend mentioned screens, which are a crude means of separating the witness from the accused in the dock. I would like the practice to be done away with in favour of CCTV in all courts, or evidence taken on commission.

Mr. McAllion

My hon. Friend makes a fair point, and I agree with him. I am not defending the arrangements set down in the new clauses: I am simply saying that the facilities that would allow them to be put into practice are not universally available in the courts of Scotland. I hesitate to make any public expenditure commitments, but the new clauses may involve such commitments. Perhaps the House could turn its attention to that.

Mrs. Fyfe

When I was a witness in Glasgow sheriff court recently, I noticed that witnesses for the prosecution and for the defence were still likely to encounter each other under the system. That causes great concern. Even with the provision of screens and remote television, considerable difficulty could be caused if there was any possibility of the witnesses seeing each other in court buildings.

Mr. McAllion

My hon. Friend has made a relevant point, to which I hope the Minister will reply when he winds up. Many years ago, I was a witness at Dundee sheriff court when my video recorder was stolen. At that time, witnesses for the prosecution and the defence, and the accused, were all kept in the same room to wait for the trial. The whole purpose of new clause 11 would be defeated if, before a trial had even started, vulnerable witnesses were expected to share accommodation with those accused of committing—in some cases—serious offences against them. I hope that the Minister will ensure that witnesses covered by the new clause will not come into any contact with those accused of offending against them.

The nub of the argument between Opposition and Government centres on the definition of the vulnerable witnesses who will be included in the new category. Both sides agree that a child should be defined as someone under 16; it is the Minister's new legal definition in new clause 11 that is at the heart of the debate. According to the new clause, a "vulnerable person" means any person of or over the age of 16 years who appears to the court to suffer from significant impairment of intelligence and social functioning". As far as I know, that is a new definition. I have not seen it before.

I understand that the Minister consulted on what the definition should be—or, rather, that the Lord Advocate, on behalf of the Minister, carried out a quick consultation process between Committee and Report. On 20 December, in the run-up to Christmas, the Minister wrote to Committee members, kindly making available to us the consultation paper that the Lord Advocate had sent out. At that time, the Minister was referring to the "learning disabled". The Lord Advocate's consultation document argued against the definition suggested by my hon. Friends, referring to a suitable definition of 'learning disabled'", and stating: Section 1 of the Mental Health (Scotland) Act 1984 … is not considered to form a suitable basis for such a definition because it describes an extreme and narrow range of mental disorders and, arguably, does not include people exhibiting the range of learning difficulties which would render witnesses vulnerable when giving evidence. At the consultation stage, the Lord Advocate and the Government said that they did not want to adopt the definition in section 1 of the 1984 Act because it was too narrow, and would not cover enough witnesses who might be vulnerable in court proceedings. They wanted a wider definition, bringing in more people who might be vulnerable in such circumstances. The consultation paper itself suggested a definition that might be used: a witness suffering from learning disability would be suffering from a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning". Between consultation and Report, however, the Minister has changed the suggested definition. Out goes the phrase suffering from a state of arrested or incomplete development of mind". The only phrase that is included in the new clause is significant impairment of intelligence and social functioning". The Minister must explain tonight why, between the consultation stage and his return to the House, he has dropped the phrase suffering from a state of arrested or incomplete development of mind".

Dr. Godman

Subsection (12)(b) refers to "social functioning". Could it not be argued that a person suffering from, say, paranoid schizophrenia was suffering from a "significant impairment" of social functioning?

Mr. McAllion

I would have thought so. Presumably, during the consultation period the Minister had a great deal of time in which to circulate the document to interested groups. Can he tell us how many people responded, whether any consultant psychiatrists or organisations representing them contacted the Government, and whether, if so, they have a view about the Minister's definition? I would have thought that that definition might or might not include someone suffering from schizophrenia, but that is a matter for a consultant psychiatrist rather than a court to decide. The Minister must tell us exactly what the position is.

4.45 pm

A number of hon. Members have asked whether the Government fear that the floodgates may open, and that too many people will seek protection under the new clauses. Is that why they will not accept section 1 of the Mental Health (Scotland) Act 1984 as a definition? The Minister cannot say that that is the case, however, for his own consultation document makes it clear that he wants a broader definition. He must justify the phrase that he is introducing to Scottish law for the first time, and explain who will decide what constitutes significant impairment of intelligence and social functioning". Will it be the court, or a consultant psychiatrist?

Mrs. Irene Adams (Paisley, North)

Does my hon. Friend agree that witnesses who have been intimidated or threatened by the accused, or people connected with the accused, could describe themselves as not functioning very well socially? Nothing in the new clauses relates to people who have been threatened or intimidated during trials, or whom others have attempted to bribe.

Mr. McAllion

Not only do I agree; when my hon. Friend asked whether a witness who had been threatened could be described as suffering from impairment of social functioning, the Minister nodded. It now appears that threatened witnesses could qualify under the new clause, which widens the definition.

Lord James Douglas-Hamilton

No.

Mr. McAllion

Now the Minister says, "No," from a sedentary position. Just a few minutes ago, he was saying, "Yes."

Dr. Godman

My hon. Friend mentioned the organisations that were consulted. In fact, the Lord Advocate consulted the Mental Welfare Commission for Scotland, but failed to consult Scottish members of the Royal College of Psychiatrists.

Mr. McAllion

My hon. Friend highlights our problem in trying to decide between the two new clauses that have been tabled by the Government and by Opposition Members. The Minister is pushing ahead at breakneck speed. There has not been proper consultation: those who know best how witnesses should be categorised and defined in law have not been allowed their say in the law-making process.

The suspicion must arise that what the Government are about tonight is political posturing—that they are trying to talk tough on law and order before a general election, and are not even interested in trying to improve the law or introduce proper legal changes that would protect people in real-life circumstances outside the House. That reflects very badly on the Minister and the Government. The Minister's brother is right to say that he has had more than enough of the Tory Government over the past 17 years, and his younger brother is even more right to campaign for a Scottish Parliament, because if we had one, we would not be wasting our time here tonight.

We already have a legal definition of witnesses who may be covered by the new clause: the definition given in section 1 of the Mental Health (Scotland) Act 1984. A consultant psychiatrist who works as a forensic psychiatrist, dealing with offenders, has told me that that is a generic term that is used in law. It defines two separate categories of people—those who suffer from mental illness, and those who suffer from a mental handicap.

Mental handicap means severe mental impairment. The Minister said that those people would be covered by new clause 11, but that those who suffer from a mental illness would not necessarily come within the new definition. As many hon. Members have said, that excludes from the protection of the clause a range of people who suffer from schizophrenia, manic depressive illnesses and many other illnesses.

All hon. Members who have spoken have made the point that the Minister must explain why people who suffer from mental illness are not being afforded the protection of the new clause. In the consultation paper that he distributed around Scotland, he said that the definition of section 1 of the 1984 Act, which included people with mental illness, was not wide enough, and that not enough people would be caught within it. Now he says that it is too wide. He must explain to us what has happened to change his mind.

The Minister tried to get himself off the hook by referring to section 259 of the Criminal Procedure (Scotland) Act 1995. He suggested that that part of the Act could be used to cover people who suffer from mental illness. Section 259 deals with hearsay evidence, and lists a range of people who need not give evidence for a variety of reasons. The first category is people who are dead—which I suppose is a reasonable ground for not giving evidence in court; no one would argue with that. People who are no longer in the United Kingdom are allowed to give hearsay evidence. People who have been identified as potential witnesses but who cannot be found are another good category. People who believe that, if they give evidence, they may incriminate themselves are also allowed to give hearsay evidence.

If the Minister is prepared to include people suffering from a mental illness within the definition of hearsay evidence, why is he not prepared to include them within the definition in the Bill? The Government's position is inconsistent.

Dr. Godman

In my comments, I was not criticising the responses of people who had been consulted. They were asked three questions, all of which referred to witnesses who may be categorised as learning disabled. I am sure that my hon. Friend will agree that they were not given an opportunity to discuss other vulnerable witnesses.

Mr. McAllion

Absolutely. My hon. Friend is spot on. No Opposition Member would criticise properly qualified people for commenting on those issues. Our criticism is directly solely at Ministers, who are not listening to the voice of reason expressed inside and outside the House. Instead, they are pushing ahead with proposals that cannot be justified.

I received a letter from my constituent, Dr. Joe Morrow, who has spent some time working with people suffering from mental illness. He is concerned that the new clause does not include witnesses who are vulnerable as a result of mental illness. He tells me that he has direct experience of the extreme distress that is caused to people who are or have been mentally ill when they are faced with court proceedings.

Dr. Morrow is concerned about the people in residential care or in hospital, who may be abused and need protection to ensure that they are not intimidated in court by their carers or by those with power over them. The Minister should remember that people who suffer from mental illness need protection: they are often in an extremely weak position, whereas those who may have abused them are extremely powerful and strong.

Dr. Morrow says that, in most mental health legislation, the definition of mental disorder in section 1 of the 1984 Act is adequate. He asked me to make his plea—a plea that has come from hon. Members across the Committee—that the Minister's suggestion is not good enough. If, like his brother, he is honest and decent, he should listen to the Opposition.

Lord James Douglas-Hamilton

I am glad to respond to the debate. This is one of the most important discussions that we will have today, so it is vital that we get it right.

The hon. Members for Dundee, East (Mr. McAllion) and for Glasgow, Maryhill (Mrs. Fyfe) raised the issue of separating witnesses from the accused. Where accommodation permits, every effort is made to keep witnesses for the prosecution and for the defence separate. Improvements are constantly being introduced, and every effort is made to keep vulnerable witnesses separate from other witnesses.

The hon. Member for Dundee, East asked about the availability of equipment for giving evidence. The need for additional facilities will be assessed in the light of demand. Commissions may be taken. In any suitable accommodation, screens are available for use in every court. Closed circuit television is available in every sheriffdom, and the need for further provision is kept constantly under review.

The hon. Member for Maryhill asked about children who may be too young to give evidence. That is a complex issue. There is no minimum age below which a child cannot give evidence: the issue is whether the child can competently give evidence. Any change would require wide consultation. I shall discuss that matter further with my right hon. and learned Friend the Lord Advocate.

The hon. and learned Member for Fife, North-East (Mr. Campbell) said that the criteria in section 271 of the Criminal Procedure (Scotland) Act 1995 provide sufficient safeguards against a floodgate of applications. There would be an intolerable burden on the courts if we were to leave it to them to apply those criteria to every case in which a witness was alleged to be vulnerable. Some means of preliminary assessment is essential.

The hon. Member for Greenock and Port Glasgow (Dr. Godman) referred to the Disability Discrimination Act 1995, which focuses on discrimination in employment. It is not concerned with the rules of evidence, to which quite different considerations apply.

Mr. Menzies Campbell

The Minister dealt with my point by saying that there would be an intolerable burden on the court. If we have regard to the terms of the statute as proposed, an application can be granted only on cause shown, which means that each application must come to the court. There is no question of applications being granted on the nod or automatically. Every application will have to be heard by the court, even under the Government's proposal. So if that is his counter to the floodgates argument, I suggest that it may not be a very strong one.

Lord James Douglas-Hamilton

As I said, some preliminary assessment will have to be made. May I make it clear to the hon. and learned Gentleman—who has been an advocate depute, and has been engaged in prosecutions—what the prosecution's difficulty is. Successive Lords Advocate have been concerned that extended availability of vulnerable witness provisions could have a significant operational impact on the prosecution services, given the pressures that would be brought to bear on prosecutors by witnesses who sought to establish their vulnerability, so as to avoid having to give evidence to the court.

The hon. Member for Falkirk, West (Mr. Canavan) gave the example of an outrage, and stressed the importance of bringing the culprits to justice. I agree with him. We must balance the importance of seeing that justice is done with the need to ensure that unfairness is not meted out to vulnerable witnesses. We must get the right balance.

If a witness with schizophrenia were unable to give evidence, the hearsay provisions in the 1995 Act might be available. We expect that evidence of incapacity would require to be led; otherwise, there would be concerns that such witnesses would not be competent.

The hon. Member for Dumbarton (Mr. McFall) complained that we have tabled too many amendments. Some of our amendments are in response to legitimate points made by him, and 100 amendments were tabled by the Opposition. I stress that we have done our best to respond to the serious points made.

The hon. Gentleman said that a person with a mental health problem should be assisted by being allowed to give evidence by non-conventional means. I accept that stress can occur through the use of technology, but the hearsay evidence provisions should help many mentally ill persons.

I also accept the case for extending the child witness provisions to all vulnerable witnesses, but such an extension would be a radical departure from the long-standing requirement that witnesses must give oral testimony. We are gradually departing from that requirement, first for children and now for mentally handicapped people. We would need to take great care if we were to go further at this time, because such a step would be inappropriate without the utmost thought.

I am prepared to discuss the case for doing that for the mentally ill who are subject to hospital or other orders that have been made under the Mental Health Act (Scotland) Act 1984, because for that category of people the degree of mental illness is sufficient to have required an order. Of course that is a substantial point.

As the hon. Member for Dumbarton said, mental illness can fluctuate. Persons who suffer from manic depression can be perfectly normal for much of the time until the illness hits them.

Mr. Canavan

Will the Minister confirm that there is nothing technically wrong with new clause 7? Why is it unacceptable?

5 pm

Lord James Douglas-Hamilton

It is a matter of balance and judgment, but mental illness can easily fluctuate. Should a witness to a fatal shooting be excluded because he is not sufficiently mentally ill to be subject to an order? To exclude such a witness could be contrary to the interests of justice.

Mr. Canavan

We are not talking about excluding witnesses, but about giving them the opportunity to present their evidence in a manner that takes their vulnerability into account.

Lord James Douglas-Hamilton

I appreciate that, but we think that the "best evidence" rule should necessarily apply. I made it clear that I am prepared to discuss with the Lord Advocate the extension of revised section 271 to some mentally ill witnesses who are subject to orders under the Mental Health (Scotland) Act.

The hon. Member for Dumbarton raised the issue that arises from the Quickly case and the new clause that was considered in Committee, when I undertook to discuss with Enable how we might secure the best treatment for mentally disordered persons who were interviewed by the police. I met Enable in December, and wrote to members of the Committee on 10 January. As I explained in my letter, we are not persuaded that the statutory code is the best way forward. There might be some confusion between that code and the common law test that governs the admissibility of evidence.

I also explained that the Lord Advocate has said that he would issue instructions to chief constables setting out the circumstances in which the police will have to interview mentally disordered suspects in the presence of an appropriate adult. We shall also issue non-statutory guidance on this matter to chief constables and social work departments. I hope that that will meet our shared objective, which is that proper treatment should be given to the mentally disordered. I hope that the hon. Member for Dumbarton will not press the matter.

Mr. McFall

We are not persuaded by the Minister. He spoke about balance and judgment, but above all this is about justice. Under the new clause, people with learning disabilities who have to appear as witnesses will be protected, but that does not apply to people with mental illnesses. Such protection should be available to both categories of people.

The measure would apply to people with inborn learning disabilities but not to adults who would have some difficulty in attending court because they suffer from brain damage, head injuries, dementia or a severe illness. Voluntary organisations have persuaded us of the merits of our proposal, and we shall press new clause 7 to a vote.

Mr. Deputy Speaker (Mr. Michael Morris)

We are in some difficulty, because there is a debate in progress on new clause 11. It is the lead new clause, and the one that I must put to the House. If it is accepted, new clause 7 will fall.

Mr. McFall

Why?

Mr. Deputy Speaker

Because it is incompatible with new clause 11.

Mr. McFall

In that case, we shall vote against new clause 11.

Question put, That the clause be read a Second time.

The House divided:Ayes 269, Noes 228.

Division No. 42] [5.4 pm
AYES
Ainsworth, Peter (E Surrey) Bates, Michael
Aitken, Jonathan Batiste, Spencer
Alexander, Richard Bendall, Vivian
Alison, Michael (Selby) Beresford, Sir Paul
Allason, Rupert (Torbay) Biffen, John
Arbuthnot, James Body, Sir Richard
Arnold, Jacques (Gravesham) Bonsor, Sir Nicholas
Ashby, David Booth, Hartley
Atkins, Robert Boswell, Tim
Atkinson, David (Bour'mth E) Bottomley. Peter (Eltham)
Atkinson. Peter (Hexham) Bowden, Sir Andrew
Baker, Sir Nicholas (N Dorset) Bowis, John
Baldry, Tony Boyson, Sir Rhodes
Banks, Matthew (Southport) Brandreth, Gyles
Banks, Robert (Harrogate) Brazier, Julian
Bright, Sir Graham Harris, David
Brooke, Peter Haselhurst, Sir Alan
Brown, Michael (Brigg Cl'thorpes) Hawkins, Nick
Browning, Mrs Angela Hayes, Jerry
Burns, Simon Heald, Oliver
Burt, Alistair Heathcoat-Amory, David
Butler, Peter Hendry, Charles
Butterfill, John Heseltine, Michael
Carlisle, John (Luton N) Hicks, Sir Robert
Carlisle, Sir Kenneth (Linc'n) Higgins, Sir Terence
Carrington, Matthew Hill, Sir James (Southampton Test)
Carttiss, Michael Horam, John
Cash, William Hordem, Sir Peter
Channon, Paul Howard, Michael
Chapman, Sir Sydney Howell, David (Guildf'd)
Churchill, Mr Howell, Sir Ralph (N Norfolk)
Clappison, James Hughes, Robert G (Harrow W)
Clark, Dr Michael (Rochf'd) Hunt, David (Wirral W)
Clifton-Brown, Geoffrey Hunt, Sir John (Ravensb'ne)
Coe, Sebastian Hunter, Andrew
Congdon, David Hurd, Douglas
Conway, Derek Jack, Michael
Coombs, Anthony (Wyre F) Jackson, Robert (Wantage)
Coombs, Simon (Swindon) Jenkin, Bernard (Colchester N)
Cope, Sir John Jessel, Toby
Cormack, Sir Patrick Johnson Smith, Sir Geoffrey
Couchman, James Jones, Gwilym (Cardiff N)
Curry, David Jones, Robert B (W Herts)
Davies, Quentin (Stamf'd) Jopling, Michael
Day, Stephen Kellett-Bowman, Dame Elaine
Deva, Nirj Joseph Key, Robert
Devlin, Tim King, Tom
Dicks, Terry Kirkhope, Timothy
Douglas-Hamilton, Lord James Knapman, Roger
Dover, Den Knight, Mrs Angela (Erewash)
Duncan, Alan Knight, Dame Jill (Edgbaston)
Duncan Smith, Iain Knox, Sir David
Dunn, Bob Lait, Mrs Jacqui
Durant, Sir Anthony Lamont, Norman
Dykes, Hugh Lang, Ian
Elletson, Harold Lawrence, Sir Ivan
Evans, Jonathan (Brecon) Legg, Barry
Evans, Nigel (Ribble V) Leigh, Edward
Evans, Roger (Monmouth) Lennox-Boyd, Sir Mark
Evennett, David Lidington, David
Faber, David Lilley, Peter
Fabricant, Michael Lloyd, Sir Peter (Fareham)
Fenner, Dame Peggy Lord, Michael
Field, Barry (Isle of Wight) Luff, Peter
Fishburn, Dudley Lyell, Sir Nicholas
Forman, Nigel MacGregor, John
Forsyth, Michael (Stirling) MacKay, Andrew
Forth, Eric Maclean, David
Fowler, Sir Norman McLoughlin, Patrick
Fox, Dr Liam (Woodspring) McNair-Wilson, Sir Patrick
Fox, Sir Marcus (Shipley) Madel, Sir David
Freeman, Roger Maitland, Lady Olga
French, Douglas Malone, Gerald
Fry, Sir Peter Mans, Keith
Gale, Roger Marland, Paul
Gardiner, Sir George Marlow, Tony
Garel-Jones, Tristan Marshall, John (Hendon S)
Garnier, Edward Marshall, Sir Michael (Arundel)
Gill, Christopher Martin, David (Portsmouth S)
Gillan, Mrs Cheryl Mawhinney, Dr Brian
Goodlad, Alastair Mellor, David
Gorman, Mrs Teresa Merchant, Piers
Grant, Sir Anthony (SW Cambs) Mitchell, Andrew (Gedling)
Greenway, Harry (Ealing N) Mitchell, Sir David (NW Hants)
Greenway, John (Ryedale) Moate, Sir Roger
Hague, William Molyneaux, Sir James
Hamilton, Sir Archibald Monro, Sir Hector
Hampson, Dr Keith Nelson, Anthony
Hanley, Jeremy Neubert, Sir Michael
Hannam, Sir John Newton, Tony
Hargreaves, Andrew Nicholson, David (Taunton)
Norris, Steve Stanley, Sir John
Onslow, Sir Cranley Steen, Anthony
Page, Richard Stephen, Michael
Paice, James Stem, Michael
Patnick, Sir Irvine Stewart, Allan
Patten, John Streeter, Gary
Pattie, Sir Geoffrey Sumberg, David
Pawsey, James Sweeney, Walter
Peacock, Mrs Elizabeth Sykes, John
Pickles, Eric Tapsell, Sir Peter
Porter, David Taylor, Ian (Esher)
Portillo, Michael Taylor, John M (Solihull)
Powell, William (Corby) Taylor, Sir Teddy
Rathbone, Tim Thompson, Sir Donald (Calder V)
Redwood, John Thompson, Patrick (Norwich N)
Richards, Rod Thornton, Sir Malcolm
Rifkind, Malcolm Townend, John (Bridlington)
Robathan, Andrew Townsend, Sir Cyril (Bexl'yh'th)
Roberts, Sir Wyn Tracey, Richard
Robertson, Raymond S (Ab'd'n S) Tredinnick, David
Robinson, Mark (Somerton) Trend, Michael
Roe, Mrs Marion Trotter, Neville
Rowe, Andrew Twinn, Dr Ian
Rumbold, Dame Angela Vaughan, Sir Gerard
Ryder, Richard Waldegrave, William
Sackville, Tom Walden, George
Sainsbury, Sir Timothy Walker, Bill (N Tayside)
Scott, Sir Nicholas Waller, Gary
Shephard, Mrs Gillian Ward, John
Shepherd, Sir Colin (Heref'd) Wardle, Charles (Bexhill)
Shepherd, Richard (Aldridge) Waterson, Nigel
Shersby, Sir Michael Watts, John
Sims, Sir Roger Wheeler, Sir John
Skeet, Sir Trevor Whitney, Sir Raymond
Smith, Sir Dudley (Warwick) Whittingdale, John
Smith, Tim (Beaconsf'ld) Widdecombe, Miss Ann
Smyth, Rev Martin (Belfast S) Wilkinson, John
Soames, Nicholas Willetts, David
Speed, Sir Keith Wilshire, David
Spencer, Sir Derek Wolfson, Mark
Spicer, Sir Michael (S Worcs) Wood, Timothy
Spink, Dr Robert Young, Sir George
Spring, Richard Tellers for the Ayes:
Sproat, Iain Mr. Richard Ottaway and
Squire, Robin (Hornchurch) Mr. Bowen Wells.
NOES
Abbott, Ms Diane Campbell, Menzies (Fife NE)
Adams, Mrs Irene Campbell-Savours, D N
Ainger, Nick Canavan, Dennis
Ainsworth, Robert (Cov'try NE) Cann, Jamie
Allen, Graham Chisholm, Malcolm
Anderson, Donald (Swansea E) Clapham, Michael
Ashdown, Paddy Clark, Dr David (S Shields)
Ashton, Joseph Clarke, Eric (Midlothian)
Austin-Walker, John Clwyd, Mrs Ann
Banks, Tony (Newham NW) Cohen, Harry
Barnes, Harry Cook, Frank (Stockton N)
Barron, Kevin Cook, Robin (Livingston)
Bayley, Hugh Corston, Ms Jean
Beckett, Mrs Margaret Cousins, Jim
Bell, Stuart Cox, Tom
Benn, Tony Cunliffe, Lawrence
Bennett, Andrew F Cunningham, Jim (Cov'try SE)
Bermingham, Gerald Cunningham, Dr John
Berry, Roger Cunningham, Ms R (Perth Kinross)
Betts, Clive Dafis, Cynog
Blair, Tony Dalyell, Tarn
Bradley, Keith Darling, Alistair
Bray, Dr Jeremy Davidson, Ian
Brown, Nicholas (Newcastle E) Davies, Bryan (Oldham C)
Burden, Richard Davies, Denzil (Llanelli)
Byers, Stephen Davies, Ron (Caerphilly)
Callaghan, Jim Davis, Terry (B'ham Hodge H)
Campbell, Mrs Anne (C'bridge) Denham, John
Dewar, Donald Macdonald, Calum
Dixon, Don McFall, John
Dobson, Frank Mackinlay, Andrew
Donohoe, Brian H McLeish, Henry
Dowd, Jim McMaster, Gordon
Dunwoody, Mrs Gwyneth McNamara, Kevin
Eagle, Ms Angela MacShane, Denis
Eastham, Ken McWilliam, John
Ennis, Jeff Madden, Max
Etherington, Bill Maddock, Mrs Diana
Evans, John (St Helens N) Mahon, Mrs Alice
Ewing, Mrs Margaret Mandelson, Peter
Faulds, Andrew Marek, Dr John
Field, Frank (Birkenhead) Marshall, David (Shettleston)
Fisher, Mark Marshall, Jim (Leicester S)
Flynn, Paul Maxton, John
Fyfe, Mrs Maria Meacher, Michael
Galloway, George Meale, Alan
Gapes, Mike Michael, Alun
Garrett, John Michie, Bill (Shef'ld Heeley)
Gerrard, Neil Michie, Mrs Ray (Argyll Bute)
Godman, Dr Norman A Miller, Andrew
Golding, Mrs Llin Mitchell, Austin (Gt Grimsby)
Gordon, Ms Mildred Moonie, Dr Lewis
Graham, Thomas Morgan, Rhodri
Grant, Bernie (Tottenham) Morley, Elliot
Griffiths, Nigel (Edinburgh S) Morris, John (Aberavon)
Griffiths, Win (Bridgend) Mowlam, Ms Marjorie
Grocott, Bruce Mudie, George
Hain, Peter Mullin, Chris
Hanson, David Murphy, Paul
Hardy, Peter Nicholson, Miss Emma (W Devon)
Harman, Ms Harriet Oakes, Gordon
Heppell, John O'Brien, Mike (N Warks)
Hill, Keith (Streatham) O'Brien, William (Normanton)
Hinchliffe, David Olner, Bill
Hodge, Ms Margaret O'Neill, Martin
Hogg, Norman (Cumbemauld) Orme, Stanley
Hood, Jimmy Pearson, Ian
Hoon, Geoffrey Pendry, Tom
Howarth, Alan (Stratf'd-on-A) Pickthall, Colin
Howarth, George (Knowsley N) Pike, Peter L
Howells, Dr Kim Pope, Greg
Hoyle, Doug Powell, Sir Raymond (Ogmore)
Hughes, Kevin (Doncaster N) Prentice, Mrs B (Lewisham E)
Hughes, Robert (Ab'd'n N) Prentice, Gordon (Pendle)
Hughes, Roy (Newport E) Purchase, Ken
Hughes, Simon (Southwark) Randall, Stuart
Ingram, Adam Reid, Dr John
Jackson, Mrs Helen (Hillsborough) Rogers, Allan
Jamieson, David Rooker, Jeff
Janner, Greville Rooney, Terry
Jenkins, Brian D (SE Staffs) Ross, Ernie (Dundee W)
Jones, Barry (Alyn & D'side) Rowlands, Ted
Jones, leuan Wyn (Ynys Môn) Salmond, Alex
Jones, Dr L (B'ham Selly Oak) Sedgemore, Brian
Jones, Martyn (Clwyd SW) Sheldon, Robert
Jones, Nigel (Cheltenham) Shore, Peter
Jowell, Ms Tessa Short, Clare
Kaufman, Gerald Skinner, Dennis
Keen, Alan Smith, Andrew (Oxford E)
Kennedy, Charles (Ross C&S) Smith, Llew (Blaenau Gwent)
Khabra, Piara S Snape, Peter
Kilfoyle, Peter Soley, Clive
Kirkwood, Archy Spearing, Nigel
Lewis, Terry Spellar, John
Liddell, Mrs Helen Squire, Ms R (Dunfermline W)
Litherland, Robert Steel, Sir David
Livingstone, Ken Steinberg, Gerry
Lloyd, Tony (Stretf'd) Stevenson, George
Llwyd, Elfyn Stott, Roger
Loyden, Eddie Straw, Jack
Lynne, Ms Liz Sutcliffe, Gerry
McAllion, John Taylor, Mrs Ann (Dewsbury)
McAvoy, Thomas Taylor, Matthew (Truro)
McCartney, Ian (Makerf'ld) Thompson, Jack (Wansbeck)
Thurnham, Peter Wigley, Dafydd
Timms, Stephen Williams, Alan (Swansea W)
Tipping, Paddy Williams, Alan W (Carmarthen)
Touhig, Don Wise, Mrs Audrey
Trickett, Jon Worthington, Tony
Turner, Dennis Wray, Jimmy
Tyler, Paul Wright, Dr Tony
Walker, Sir Harold Young, David (Bolton SE)
Wallace, James
Walley, Ms Joan Tellers for the Noes:
Wardell, Gareth (Gower) Mr. Joe Benton and
Watson, Mike Mrs. Jane Kennedy.

Question accordingly agreed to.

Clause read a Second time, and added to the Bill.

Mr. Mike Gapes (Ilford, South)

On a point of order, Mr. Deputy Speaker. I should like your advice.

I have just discovered that on Friday, while I was here, along with many other hon. Members, trying to do something about cold weather payments and the wind chill factor, a Minister visited my constituency, but did not have the courtesy to inform me that she was going there. Her visit was televised in my constituency and she attended at least three functions there. Unfortunately, I am not able to raise the matter with the person in this House, because she lost her seat at the last election. I should be grateful, therefore, for clarification from you on how I can make representations to the Baroness—the former right hon. Member for Wallasey—who visited my constituency on Friday without informing me.

Mr. Deputy Speaker

Madam Speaker has made it clear that all Ministers should inform hon. Members when they visit their constituencies and that all hon. Members should also have the courtesy to do the same if they visit another constituency. I am sure that the right hon. Lady will read Hansard tomorrow.

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