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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

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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.

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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

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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?

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