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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

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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 271A 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.

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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

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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.

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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.

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