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The Earl of Mar and Kellie: This is a probing amendment. I believe that we have made some progress. We may return to it later. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 138 not moved.]

The Earl of Balfour moved Amendment No. 139:

Page 12, line 21, at end insert--
("( ) A notice required by subsection (8) to be given to a person shall be given at least two weeks before the day on which the proceedings are to take place, or by which the documents are to be produced, unless he waives that requirement.").

The noble Earl said: This amendment seeks to give a witness some time in which to get his papers together. It could be some time since the problem arose, but I feel that a witness must be given some warning. I have suggested that he should be given two weeks in which to get himself together before he appears in any court or before any inquiry. I beg to move.

The Earl of Mar and Kellie: We on these Benches have some sympathy with the noble Earl's amendment but we are concerned as to whether a two-week time delay would be helpful in the event of a witness being required to give evidence during an emerging crisis.

Lord Monson: I, too, have some sympathy with what the noble Earl has said. If someone from Cornwall, Carmarthen or Carrickfergus is summoned to Edinburgh to appear before the Scottish parliament to give evidence, will his travel and accommodation expenses be paid?

Lord Hardie: I would certainly expect that to be the case. That is the normal situation with the citation of any witness to any court. I appreciate that the Scottish parliament will not be a court, but I do not see why it should be exempt from those normal rules. As regards the amendment, I, too, have considerable sympathy with the noble Earl's point. We have no argument whatever with the proposition that the parliament should exercise its powers in a responsible way and that appropriate notice should normally be given. However, I do not accept the amendment for the reason given by the noble Earl, Lord Mar and Kellie. There may be circumstances where there is particular urgency or expediency to require the witness to attend and produce documents much earlier than within two weeks. For that reason it is not appropriate to lay down a period of two weeks' notice in every case.

Clause 24(3) states that there would be a general defence of reasonable excuse. Therefore if a particularly short period of notice was given to a witness to appear

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or to produce a document, he would have the defence that he could not comply for a good reason. I am reminded that Clause 25(4) makes specific provision to allow the parliament to pay expenses of witnesses, as it chooses. Therefore the point raised by the noble Lord, Lord Monson, appears to be covered by that.

Baroness Carnegy of Lour: I hope I have understood all this correctly. If a Minister of the Crown is required to appear before the Scottish parliament, and in the event he is required to be in his own Parliament at Westminster, who wins?

Lord Hardie: In that situation I am sure that the Minister of the Crown would be able to claim parliamentary privilege here and would not be required to attend. However, I anticipate that normal channels would operate and that the Minister of the Crown would advise the Scottish parliament of the difficulty and an alternative date would be set.

The Earl of Balfour: I have considered Clause 24(3) but that concerns an offence that has been committed. That is rather different from what we were dealing with under Clause 23. I want to make certain that a witness has some time in which to produce documents. I rather hoped that the final phrase of my amendment,

    "unless he waives that requirement"

might have covered that. Perhaps the noble and learned Lord the Lord Advocate will consider this between now and Report as I feel that a witness should not be expected simply to turn up in court the next day with all his papers. From a practical point of view that is not an easy thing to do. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Drumadoon moved Amendment No. 139A:

Page 12, line 32, at end insert (", or in a court exercising jurisdiction of the United Kingdom in which the person resides or works").

The noble and learned Lord said: I apologise for not speaking to this amendment earlier. However, I wish to move it and I believe it is competent for me to do so. Even if it were not, I am sure the noble and learned Lord would be willing to address the issue which it raises. The amendment seeks to provide a level playing field for witnesses who are summoned from England, Wales or Northern Ireland to appear before the Scottish parliament, or one of its committees, to give evidence. Clause 23(10) provides that,

    "A person is not obliged under this section to answer any question or produce any document which he would be entitled to refuse to answer or produce in proceedings in a court in Scotland".

The purpose of the amendment is to add to that subsection the following words,

    "or in a court exercising jurisdiction of the United Kingdom in which the person resides or works".

The fact of the matter is that many will live and work in England and a few will live and work in Wales and Northern Ireland. If such persons were entitled to refuse to answer questions in any proceedings--whether civil

21 Jul 1998 : Column 780

or criminal proceedings--in the courts of England, Wales and Northern Ireland, they should be accorded the same privilege of being entitled to refuse to answer as is accorded to people who live and work in Scotland and who may be answerable to the courts there. The policy seems entirely valid. The Government recognise in the Bill that the interests of justice require that in certain circumstances witnesses summoned to the parliament should not be required to answer questions. I seek to apply that provision uniformly throughout the United Kingdom. I beg to move.

Lord Fraser of Carmyllie: I support my noble and learned friend's amendment, but with this restriction. I do not know why he requires that it should be only,

    "in a court exercising jurisdiction of the United Kingdom in which the person resides or works".

It would seem to me more appropriate if the amendment stopped at "United Kingdom". Perhaps I may explain my point.

I take as an example a particularly vile Scotsman who lives and works in Scotland but travels to a place in the north of England and purchases for the purposes of distribution north of the Border particularly vile child pornography. It is not difficult to think that in those circumstances a Scottish parliament, faced with such a scourge, would decide to examine the issue in order to determine where such pornography was purchased and how it was distributed. One of the first questions that the parliament would wish to ask such an individual would be: where did you get it; from whom did you purchase it? In such circumstances he might also be committing, or solely committing, an offence in England. I can think of other examples where an individual would be committing an offence only in England, and where he would be entitled in those circumstances not to answer the question.

There are two ways to approach this matter. It could be approached in the fashion proposed by my noble and learned friend Lord Mackay, by adding the reference that he is able to decline to answer the question if able to do so in any court in the United Kingdom. An alternative route would be to say that any answer he gave before the Scottish parliament was not admissible in a court of law in any other part of the United Kingdom. The preferable course would be not to restrict this provision merely to Scottish courts but to extend it throughout the United Kingdom. That would be a more appropriate way to arrange matters.

Lord Hardie: The thinking behind this provision was that we considered it right that the parliament meeting in Scotland and making laws for Scotland should, in requiring someone to give evidence, recognise the same rights of refusal as are available to a person in the Scottish courts under Scottish law. To take the example given by the noble and learned Lord, Lord Fraser of Carmyllie, if the individual appeared in a Scottish court and was asked the question there, an issue would arise as to whether he had to answer it. We do not see that

21 Jul 1998 : Column 781

the rules should differ in any way in relation to the proceedings of the Scottish parliament. Accordingly, we are not minded to accept the amendment.

Lord Fraser of Carmyllie: Before the noble and learned Lord sits down, I shall go away and refine my examples. I can think of a number of instances where I can see, legitimately, the Scottish parliament wishing to investigate a matter that it regards as a social evil, or some broader matter where the only criminal activity identified takes place south of the Border. As I understand the matter, under the Bill as presently drafted if the criminal offence were committed in Scotland, he would not have to answer that question. It would be a matter on which he was entitled to refuse to answer in Scotland.

It would seem more appropriate that if he has the right to refuse to answer that question in any court in the United Kingdom, he should be entitled to refuse to answer it before that part of the Scottish parliament that wishes to ask him questions. If the noble and learned Lord wants me to go away and refine my examples, I have little doubt that, without too much fertility of imagination, I shall manage that.

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