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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

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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

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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

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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.

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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.

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