Sexual Offences (Procedure and Evidence) (Scotland) Bill: Stage 3
We will first deal with the amendments to the bill before we debate the motion to pass the bill. For the first part of the business, members should have a copy of the bill as amended at stage 2, the marshalled list containing all the amendments selected for debate and the groupings that have been agreed. An amendment that has been moved may be withdrawn with the agreement of members present. It is, of course, possible for members not to move amendments, should they so wish. The electronic voting system will be used for all divisions. I will allow an extended voting period of two minutes for the first division that occurs after each debate on a group of amendments.
Members who are sitting towards the rear of the chamber cannot hear you, Presiding Officer.
I will do my best, but the microphone does appear to be switched on. The clerks will speak to the broadcasters.
That is better.
Is that sufficient?
Yes.
Good.
Section 1—Prohibition of personal conduct of defence in cases of certain sexual offences
Amendment 7, in the name of Bill Aitken, stands in a group of its own.
The purpose of amendment 7 is to obtain clarification of what, under section 1 of the bill, constitutes the type of offence that the Executive seeks to define as a sexual offence.
It is fair to say that section 1 provided members of the Justice 2 Committee with some difficulty. It is clear that it is undesirable for a woman who has alleged that she has been raped to find herself confronted in the witness box by the person whom she has accused of the offence. The committee accepted that such a situation could be distressing and harrowing.
However, we draw to the attention of the Parliament that that has happened on only two indictable occasions over the past 20 years and, coincidentally, in cases that involved the same accused and the same judge—Lord Bonomy, who is well known as a robust defender of the rights of victims. In those cases, Lord Bonomy made it clear that, if the complainer had been subject to examination by counsel, she could have been submitted to a more rigorous cross-examination. He also highlighted that the complainer in both cases did not appear to be unduly distressed.
The Justice 2 Committee spent a lot of time considering the matter. The considerations were constructive and produced a lot of free-flowing thought. We concluded that potential complainers are of the view that there is a real risk of being confronted by their assailant. Although it is clear that the facts do not bear that out, members of the Justice 2 Committee agreed that, on balance, it is undesirable to allow cross-examination and the personal conduct of defence in cases of this type. We are prepared to agree to the terms of section 1, subject to the amendment that I have lodged.
We seek to clarify the term "substantial sexual element". Under the provisions of proposed new section 288C(4) of the Criminal Procedure (Scotland) Act 1995, the court is required to make an order applying those procedures to offences that are not listed in the appropriate subsection. Nothing in any legislation or any ministerial explanation has defined correctly or appropriately the term "substantial sexual element".
I fully appreciate that such cases are few and far between. It has been well documented that any man who acts as his own lawyer has a fool for a client. Given that such cases have happened only twice in the past 20 years, it is not probable that there will be all that many cases. Nevertheless, it is important to have an agreed definition. We are disappointed that there has been neither a verbal explanation of the term nor an Executive amendment to tighten up the wording.
I hope that, even at this late stage, the Minister for Justice might review the situation and strengthen the bill. Amendment 7 represents a constructive attempt to bolster section 1. Without its provisions, there could be all sorts of difficulties with interpretation and the appeal court might be called in to make determinations. Such a situation might not be in the best interests of justice.
I move amendment 7.
As no member has requested to speak to amendment 7, I will go straight to the minister.
Amendment 7 is misconceived and unnecessary. New section 288C(4) of the Criminal Procedure (Scotland) Act 1995, as proposed in section 1 of the bill, is perfectly adequate to cover the process by which the court can decide whether to treat an offence as sexual and therefore to prevent the accused from personally questioning the complainer.
As Bill Aitken has mentioned, the bill's intention is to ensure that an accused charged with any offence with a "substantial sexual element" will be prohibited from conducting his defence in person. The prohibition does not depend on whether there is a relationship between the accused and the complainer or whether the quality of the complainer's evidence would be affected by the fact that the accused was doing the questioning. The Executive believes that, as a matter of principle, complainers in all sexual offences should not have to contemplate the possibility of being personally questioned by the accused. Complainers in all such offences should also have the benefit of the restrictions on the use of evidence about their sexual history or character. In deciding whether to treat the offence as a sexual one, the court needs only to determine whether the offence is to all intents and purposes a sexual one—that is, whether it has a "substantial sexual element".
Amendment 7 would introduce to the process criteria that are irrelevant to the question whether the offence is a sexual one. Furthermore, they are not relevant to the question whether the bill's provisions apply to the sexual offences included in the main list in proposed new section 288C(2) of the Criminal Procedure (Scotland) Act 1995. As a result, they should not be applied to any other offence that is basically a sexual offence.
Amendment 7 would also greatly complicate what should be a relatively simple process. The prosecution will be aware of the circumstances of the alleged offence and will simply draw to the court's attention the factors that show that the offence has a sexual element. It will then be up to the court to decide whether that element is substantial enough for the offence to be treated as a sexual one. There is no need for a complicated set of criteria to be set out in statute. Accordingly, I ask Bill Aitken to withdraw the amendment.
I do not accept the minister's assurances. Although I do not want us to enter into an exhaustive process of defining the minutiae of what is meant by "substantial", some general criteria should be available. Although numerous offences might be highly offensive and would certainly constitute an assault, they might not be sexual in motive or content. Although courts would certainly have the ability to make such determinations based on the facts of each case, they will take different interpretations on different occasions, as is their wont. That is how the system operates, and it will ever be thus. However, we must recognise that guidelines should be introduced. As amendment 7 seeks to strengthen the bill and tighten things up, it is justified in all respects, and I will press it.
Will the member give way?
Sorry.
Just too late, Ms Cunningham.
The question is, that amendment 7 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (South of Scotland) (Con)
Gallie, Phil (South of Scotland) (Con)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Johnstone, Alex (North-East Scotland) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Against
Adam, Brian (North-East Scotland) (SNP)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Elder, Dorothy-Grace (Glasgow) (SNP)
Ewing, Dr Winnie (Highlands and Islands) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (Edinburgh Pentlands) (Lab)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Harper, Robin (Lothians) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McLeish, Henry (Central Fife) (Lab)
McLeod, Fiona (West of Scotland) (SNP)
McMahon, Mr Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Sturgeon, Nicola (Glasgow) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Andrew (Central Scotland) (SNP)
The result of the division is: For 8, Against 75, Abstentions 0.
Amendment 7 disagreed to.
Section 2—Appointment of solicitor by court in such cases and availability of legal aid
I call Roseanna Cunningham to speak to and move amendment 9.
I am aware that this matter was canvassed in committee at stage 2, but it received only a brief airing at that point and I thought that it was worth having a slightly longer discussion.
There are real concerns among practising solicitors about the position that they will be in when the legislation comes into force. The concern is that there is no specific provision for the regulation of the relationship between the court-appointed solicitor and the client in so far as their professional—and, indeed, statutory—duties to their clients are concerned. There is great concern that the amendment is necessary to define the altered nature of that solicitor-client relationship. There is a new role for solicitors, albeit one that will not occur very often. Solicitors' terms and conditions are, in a sense, already dealt with by statute—solicitors have statutory obligations in respect of their work. If there is to be a new court-appointed role for solicitors, we should consider regulation of that as well. The real concern is that solicitors could end up finding themselves breaching their professional responsibilities and that a knock-on effect might be internal disciplinary proceedings against them in the Law Society of Scotland. We must consider solicitors' concerns in that regard carefully.
It is fair to say that amendment 9 mirrors similar sections in other pieces of legislation that deal with court-appointed solicitors. It mirrors the Youth Justice and Criminal Evidence Act 1999, which invoked similar provisions in sexual offences cases in England and Wales. In that act, there is a clear indication that a court-appointed solicitor in sexual offences proceedings is not responsible in any way to the accused. The act appears to recognise the altered nature of the solicitor-client relationship in cases such are those that are suggested in the bill.
We must think carefully about where we are going. In other pieces of legislation—and not only in the one that I mentioned—the issue has been addressed more explicitly. The Terrorism Act 2000 has a similar specific provision in respect of solicitors appointed in connection with immigration appeals, which explicitly states that such a solicitor will not be responsible to the client, because the conduct of solicitors is defined by statute.
The amendment tries to bring the bill into line with the practice that appears in other legislation. Such a provision is necessary if we in Scotland are to go down the court-appointed solicitor road.
I move amendment 9.
I support amendment 9. It is important to highlight the fact that the relationship that will exist between a solicitor appointed under the circumstances that we are discussing and the normal solicitor-client relationship are quite different. In cases where the solicitor is appointed by the court, he will have no particular duty or loyalty to the client. Indeed, in many cases, he will be dealing with the type of dysfunctional character who frequently appears in our courts.
Where a solicitor has been imposed on a client, the relationship between solicitor and client will, by necessity, be somewhat more difficult and complex and, on occasion, infinitely more fractious. Therefore, it is essential that there is something in the bill to provide protection for solicitors. As Roseanna Cunningham has quite correctly pointed out, other pieces of legislation, including the Terrorism Act 2000 and certain immigration proceedings, incorporate that protection. That is entirely appropriate.
The Justice 2 Committee examined carefully the role of the solicitor, particularly in cases where there is a difficult relationship between solicitor and client because the solicitor has been imposed on the client. Will Bill Aitken comment on the evidence from the Public Defence Solicitors Office witnesses, who said that there are often initial difficulties, but clients eventually realise that it is in their interests to have a solicitor and so co-operate with the solicitor who has against their wishes been appointed to represent them?
Pauline McNeill is perfectly correct to point out that that was the evidence from the public defenders. However, we also heard evidence from the Law Society of Scotland, which flagged up the potential difficulties that could arise in such cases. I know that we are talking in a vacuum to some extent, because the number of such cases will be infinitesimally small, but it is important nevertheless that protection is in place so that solicitors can be reassured. If that protection is not incorporated in the bill, solicitors will be rather reluctant to take up such cases. There is significant merit in amendment 9, and the Conservatives will support it.
As Roseanna Cunningham said, amendment 9 attempts to define further the relationship between an accused and his court-appointed solicitor. Section 288D of the Criminal Procedure (Scotland) Act 1995, which section 2 inserts, will impose a duty on the solicitor
"to ascertain and act upon the instructions of the accused".
It also states that, where a solicitor receives
"no instructions or inadequate or perverse instructions",
his duty is
"to act in the best interests of the accused."
Otherwise, a court-appointed solicitor has the same obligations and authority as a solicitor who is chosen by the accused.
Roseanna Cunningham and Bill Aitken both referred to other UK acts. The Terrorism Act 2000 relates specifically to security and terrorism matters, which are quite different from sexual offences. The Youth Justice and Criminal Evidence Act 1999 makes provision for a court-appointed lawyer, but only to deal with cross-examination, whereas the bill that we are now considering will deal with the entire proceedings. Therefore, a corresponding provision in the bill would be difficult to justify.
Given that the bill's scope is wider than that of the acts that have been mentioned, is not there even more—rather than less—reason to ensure that the situation is clarified?
A solicitor's duty to act in the best interests of his client will cover that. Solicitors must always act professionally, within whatever limits are set, so the matter is already covered.
The first, second and fifth new subsections proposed by amendment 9 would not add to what is already in the bill. The term, "inadequate or perverse instructions", which the bill uses, is adequate to cover instructions that could not be carried out by a solicitor following the normal rules of professional ethics, which it is clear will continue to apply.
The third new subsection proposed by amendment 9 would allow the court-appointed solicitor to withdraw unilaterally from acting. If solicitors kept doing that, the trial of the accused could be prevented from taking place at all.
Does the minister agree that questions remain from the case of Her Majesty's Advocate v Anderson, which to some extent defined the relationship between a solicitor and their client? Does he agree that part of the finding in that case could impinge on this legislation and that the legislation would be more comfortable if amendment 9 were to be incorporated?
I disagree. I want to continue.
It would be a serious discourtesy to the court whose appointment the solicitor had accepted if the solicitor were to withdraw unilaterally. We believe that, if the court appointed the solicitor, only the court should be able to end the appointment.
Section 288D(5A) would allow the court to discharge a solicitor that it had appointed and choose a replacement if the original appointee could provide genuine reasons for being unable to continue. That is an appropriate safeguard for the solicitor.
The third and fourth new subsections proposed by amendment 9 would allow a solicitor who could not obtain appropriate instructions to act according to their own professional judgment, with no responsibility towards the accused. We believe that court-appointed solicitors should continue to owe the accused a duty to act with ordinary professional care and skill.
Will the minister give way?
I want to finish what I am saying.
It is clear that what that means may be limited if the accused has refused to co-operate fully. However, it would be unfair to the accused to allow the solicitor to escape all responsibility to him if the solicitor had, in fact, been negligent.
Solicitors will not act irresponsibly because doing so would be a breach of the legislation under which they operate. The difficulty is that the minister is perhaps imagining a set of circumstances in which a solicitor is acting capriciously. However, if he acts capriciously, he will be subject to discipline in any case. The difficulty is that what solicitors understand, are well aware of, comfortable with and bound by professionally and statutorily will be taken away. They will be put into a more ambiguous position.
That we are having this debate is good. The argument seems to be that, if a solicitor believes that there are genuine reasons for them to be unable to continue to act, they can apply to the court to be discharged. The important point is that it should then be a matter for the court to discuss those reasons. Surely, that should provide adequate protection. A solicitor will not act against his professional interests or ethics. As Roseanna Cunningham pointed out, he will not act capriciously or he would be subject to disciplinary procedures. Therefore, I think that the present measures give adequate safeguards and continue to take the court—which appoints the solicitor—as the point at which the discharge should occur. The solicitor should not be able simply to give up because he feels that he is not managing.
That raises another point. The minister's initial comments on amendment 9 related to a situation in which solicitor after solicitor withdrew and the trial did not go ahead. Let us turn that on its head. A solicitor could go to the court and say, "For these reasons, I absolutely cannot continue to represent someone." The court could say, "Okay, we understand." The next solicitor may have exactly the same problem and may come back to court. At what point will the trial not go ahead? If that is the basis of the objection to the amendment, is it not already implicit in the bill?
We are dealing with something that is not highly defined and Roseanna Cunningham is trying to define it in absolute terms. It is capable of being defined, but it should be defined by the court, which will make the appropriate decision. In the interim, in appointing a new solicitor, arguments about whether he or she would find themselves in the same circumstances will have to be examined. I accept part of Roseanna Cunningham's argument, but I do not see the situation occurring.
The final new subsection proposed by amendment 9 refers to a code of practice drawn up by the Law Society of Scotland. The society already has the power to produce codes, which its members are expected to follow, so it is unnecessary to give it such a power again.
For all those reasons, I feel that amendment 9 should be rejected.
We have had enough to-ing and fro-ing to hear the substantial differences between us. I press amendment 9.
The question is, that amendment 9 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (North-East Scotland) (SNP)
Aitken, Bill (Glasgow) (Con)
Cunningham, Roseanna (Perth) (SNP)
Douglas-Hamilton, Lord James (Lothians) (Con)
Elder, Dorothy-Grace (Glasgow) (SNP)
Ewing, Dr Winnie (Highlands and Islands) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fergusson, Alex (South of Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Mr Kenneth (Glasgow) (SNP)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Johnstone, Alex (North-East Scotland) (Con)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLeod, Fiona (West of Scotland) (SNP)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Neil, Alex (Central Scotland) (SNP)
Paterson, Mr Gil (Central Scotland) (SNP)
Quinan, Mr Lloyd (West of Scotland) (SNP)
Robison, Shona (North-East Scotland) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Sturgeon, Nicola (Glasgow) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Tosh, Mr Murray (South of Scotland) (Con)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Wilson, Andrew (Central Scotland) (SNP)
Young, John (West of Scotland) (Con)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (Edinburgh Pentlands) (Lab)
Henry, Hugh (Paisley South) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McLeish, Henry (Central Fife) (Lab)
McMahon, Mr Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Abstentions
Harper, Robin (Lothians) (Green)
The result of the division is: For 35, Against 62, Abstentions 1.
Amendment 9 disagreed to.
After section 3
Group 3 relates to restrictions on the reporting of proceedings in cases where rape is alleged. Amendment 10 is grouped with amendment 17.
It perhaps goes against my image as a hanger and flogger to lodge an amendment such as amendment 10, but I have no hesitation in doing so. I believe intensely in the fairness of the justice system. That extends not only to a fair trial, but to fairness across the board. I make no apologies for wanting to see a justice system that puts the interests of the victim and the protection of society at the top of the list of priorities.
Rape, sexual abuse and abuse of children are the most heinous of crimes. The justice system recognises that to be a factor by giving anonymity to complainers before the trial, during the trial and, in many circumstances, after the trial. I want the conviction of criminals to go unhampered by technical transgressions and procedures that, at times, prevent justice from being served. When guilt is proved, I ask no favours for the convicted. In fact, the penalties that I seek in many cases go beyond those for which most members would wish.
However, because of the seriousness of the charge of rape or child abuse, there is a need to give anonymity to those who are complained against but whose guilt has not been proven. The stigma attached to the crime does not stick only to the individual; it spreads to their families and associates. The accused's friendships, social standing and, at times, job are affected. Stains on a reputation last a lifetime, even when guilt is not finally proven. There is a wide range of examples.
Does Phil Gallie agree that the proper place to debate anonymity for the accused in relation to particular crimes is in a debate about the rights of the accused in relation to a series of crimes? Phil Gallie is in danger of equating the rights of the accuser and of the accused for a specific crime such as rape. The danger of Phil Gallie's line is the suggestion that the situation of a complainer in a sexual offence case is different from that of other victims of crime. I would be concerned if Phil Gallie suggested that. I accept that there is a legitimate debate about the anonymity of the accused in some cases, but that must be seen in the context of the debate about the rights of the accused, not in the context of sexual offence cases. To discuss the issue in that context implies that there is something different about the complainer in such cases.
I am concerned about those who feel that they are the victims of rape, but the guilt of the accused must be proved in court. In rape cases, those who make the accusation have the benefits of anonymity. Like Johann Lamont, I recognise the seriousness of the charge of rape and its effect on people, which is why I ask that anonymity be extended. Rape charges have a gross aspect.
I bring members' attention to the experiences of one of my constituents—John McLaughlin of Ayr—who took his own life. A few months after that, the person who accused him admitted that the accusation that she had made was false. She was convicted in court and given 100 hours of community service for wasting police time. She spent 100 hours doing community service; he took his own life. There are numerous other such cases.
Will the member give way?
Sorry, I have limited time. I will try to come back to the member.
We have some time.
I will give way.
I thank the Presiding Officer for that helpful intervention.
As Phil Gallie knows, the Justice 1 Committee considered the matter of anonymity when it received a petition on the subject. To justify amendment 10, Mr Gallie must show why the anonymity provision should apply only to the offences that are listed in the bill. He must show why the provision should not apply to other offences with which a person might be charged, such as murder.
The answer is the seriousness of the crime and, above all, the fact that the accuser enjoys anonymity from the start. That is a telling factor in cases of rape. I realise that amendment 10 would cut across standard practice, but the bill is concerned with rape and sexual abuse, which are the most horrendous of crimes.
Will the member give way?
I will give way shortly. I recognise Maureen Macmillan's input to the bill.
I want to refer to other cases in which members might take an interest. Two policemen from Edinburgh were falsely accused and, according to Lord Prosser, were seriously damaged. The way in which the information came out probably ruined their careers.
Elaine Wyper from Kilmarnock was acknowledged to have falsely accused James Crawford and she eventually received 180 hours of community service. James Crawford received £500 from Elaine Wyper, but she had claimed £11,000 from the state for criminal injury. I have every sympathy with those who are abused—I believe that they should receive such support—but there is a disparity in that example.
Jim Fairlie, who is a member of the Scottish National Party, was unfairly labelled. Members of that party should recall his case and consider it.
Mr Gallie seems to be arguing that the accused should be allowed anonymity because rape is a serious crime. What about murderers? Should someone who is charged with murder be allowed anonymity, or is he implying that women who allege rape are more likely to be lying than any other kind of victim?
No. Women who have been affected by the crime of rape deserve anonymity. They should not have their names plastered across the press. Anonymity is not offered to anyone in cases of any other crime that I can think of that comes before a court. Rape is a special instance, which is why I emphasise the point.
I ask members to read the story of Andrew Bond in the Daily Mail of 23 February. At times, when the police get involved in a case, they see the interests of the victim as those of the woman against whom the crime has been perpetrated—as they feel to be the case—and they are a little bit slow in looking at all the aspects. That was certainly the situation in the case of Andrew Bond. The police had evidence before their eyes that proved his innocence from the start, but he lost his university career and had his life turned upside down although he was totally innocent from beginning to end. Those are the kinds of cases that we must examine.
I have concentrated on the crime of rape. I was tempted to speak about the sexual abuse of children, but if the message were to be put out that anonymity would be granted in rape cases, perhaps judges in our courts would take account of that. I point to the case in Ayrshire, last July. The case collapsed in the Court of Session and left individuals without the opportunity to prove their innocence. They have been left stained. That is wrong. I feel sure that many members have a lot of sympathy with the Cairns family and others who were caught up in that case. Had a level of anonymity been offered to them and maintained throughout the trial, a lot of damage would not have been done.
I move amendment 10.
I wondered how long Mr Gallie was going to get to speak. I will not take up as much time: my points are quite simple.
I am suspicious and concerned that Phil Gallie has lodged amendment 10 at stage 3. I agree with some, but not all, of what he says, but it is wrong in principle for Parliament to debate at stage 3 a principle that has never been scrutinised or debated in committee, and I am opposed to that. I questioned whether the amendment should have been admitted, but I am told that it is admissible.
The Sexual Offences (Procedure and Evidence) (Scotland) Bill is about protecting victims from unnecessary criticism and from facing their accuser in court. That is at the heart of the bill, which is where it should be. Phil Gallie is getting some of his cases mixed up. Feeling in the Parliament is strong. We await the decision for which the Lord Advocate has called on the Abernethy ruling, which is on another point of law altogether. I am sure that we will be anxious to discuss what the law in relation to rape should be.
The members who intervened on Mr Gallie are correct. There may be merit in debating the anonymity of accused persons, but that anonymity should be debated in relation to every crime, not just sexual offences. The fact that that principle is in amendment 10 makes me suspicious of Mr Gallie's motives. He is saying that this is the bill that we should use to protect male persons who are accused, but let us debate the matter in its proper context—let us not confuse it with the principle of the bill that we agreed at stage 1, which is that the victim should be protected, by the appointment of a court solicitor, from having to face their accuser in court directly.
I sympathise with some of Pauline McNeill's comments. I do not want to go too far down the procedures road, but we know that sometimes members do not lodge amendments at stage 2 because they feel that, if those amendments are debated but not accepted, they will not be able to lodge similar amendments at stage 3. Perhaps we should consider that issue, because it means that amendments that deal with serious issues, such as amendment 10, are lodged at stage 3 with little forewarning, with no evidence to back them up and with little time in which to be debated—only 10 or 15 minutes in a stage 3 debate such as this.
SNP members will not vote for amendment 10, but not because Phil Gallie has no good, supporting arguments. We should debate restricting the reporting of an accused's identity in a rape case. It is important to recognise that issue; we should not pretend that we can simply run away from it. I gently suggest to Phil Gallie, however, that the way in which he presented his argument did his cause no favours and probably made members shut their minds to what is a serious issue. Another concern is that the amendment was introduced so late in the bill's passage. That is one of the main reasons why we will not vote for it.
Amendment 10 represents a valid argument, but it could open the door to granting anonymity for accused persons across the board. It is difficult to justify anonymity for the accused in one case but not another. Members should consider that issue.
However, the amendment could also lend anonymity to a victim. There must be many cases in which openly identifying the accused also reveals the victim's identity, particularly in smaller communities.
Members indicated disagreement.
Members are shaking their heads. For people who live in cities such as Glasgow, anonymity might be protected, but for those who live in much smaller communities, it is extremely difficult to maintain anonymity, even when the court has imposed anonymity. We must accept that as a fact of life.
There should be a debate on the issue, but it is too late in the passage of the bill to have one now. Phil Gallie did himself no favours by the way in which he presented his arguments. The SNP will not support amendment 10.
I am pleased to support amendment 10, as it deals with the question of balance, which is an important component of justice. It is entirely appropriate that Phil Gallie lodged the amendment for debate at stage 3; I see nothing wrong in his doing that. The argument that he should have lodged the amendment at an earlier stage is simply a procedural smokescreen.
Rape is undoubtedly a serious crime. No member has argued differently and I do not expect any member to do so. It is regrettable that rape conviction rates are low. However, the prime reason for that is the lack of witnesses or corroborating evidence. Having a low conviction rate—as sad as that is—is no excuse for punishing the accused, who remain innocent until proven guilty. Phil Gallie outlined some of the many cases in which men have been unjustly accused of rape and have had their lives deeply affected by those false accusations. Some of those men took their lives.
Because rape is a heinous crime that involves sex, it is widely reported. Moreover, because a rape case often involves one person's word against that of another, even a finding of not guilty can leave doubts in people's minds. That can cause immense damage to reputations and lives.
Let us compare rape cases with less heinous but nonetheless serious cases that involve crimes such as burglary and car theft. In those other cases, the public knowledge of a verdict of innocence is not generally damaging to the person who was accused. Even being found guilty in such cases and serving a conviction can be less damaging for the accused than when an accused is found innocent in a high-profile rape case.
I wonder whether Mr Monteith is not in imminent danger of suggesting that we ought not to take rape cases to trial at all because the accusation of rape is so damaging to someone. Everyone is aware of that fact. Does he agree that part of the reasoning behind the position that we are discussing is a belief that it is more likely that a woman will lie about rape than about any other crime? Does he also agree that that attitude is dangerous and sends the wrong message to women who might wish to complain but who are afraid to do so because of that attitude?
I have never heard anything so preposterous. The reason why we grant anonymity to the alleged victim is to ensure that they feel comfortable about coming forward. Phil Gallie's proposal relates to the crime of rape and not to murder or other crimes because anonymity exists for the alleged victim of rape. Like Phil Gallie and many others, I do not believe that the granting of anonymity to people who have been accused of rape will open any floodgates. We do not see people battering down the doors of Parliament requesting anonymity for victims of other crimes. Likewise, I do not expect that people will say that there should be anonymity for people who are accused of other crimes. Rape is a special and particularly nasty crime that we have decided to treat differently because of the difficulty of bringing the prosecution. However, because of the often damaging outcome for those who have been found innocent, it is worth providing anonymity for the accused.
I want to know why the amendment was not lodged earlier in the process. Comments from across the chamber indicate that many members believe that the amendment has been lodged too late to be subject to proper scrutiny.
My experience of serving on committees does not convince me that stage 2 offers the opportunity for great scrutiny. Stage 2 is whipped and is often quick. I suggest that stage 3, which takes place in a meeting of the whole Parliament, provides for better debate than stage 2 in committee. I have no difficulty with members of any party lodging amendments—serious or not—at any time. Members are allowed to do that and I applaud Phil Gallie for lodging amendment 10. I cannot say why it was not lodged earlier, but it is wrong to suggest that it should have been lodged earlier. Many of us have lodged amendments that have been disagreed to by a small number in committee even though we know that the amendment would have had more support at stage 3.
Surely the point of stage 1 and stage 2 is to bring forward evidence and find out what the various bodies who would be affected by the legislation think about the amendments. That is the point of the exercise, not the decision that is made at stage 2. Members have the opportunity to bring the subject of the amendment back to the chamber in another amendment at stage 3.
Actually, there is—
It might help you to know, Mr Monteith, that I intend to make a statement on that matter at the end of your remarks.
Mr Lyon should be aware that stage 1 and stage 2 are quite different processes. Stage 1 is undoubtedly about evidence gathering; stage 2 is about debating amendments. It is often difficult to ensure that subjects that were dealt with in amendments that were disagreed to at stage 2 are considered at stage 3. The selection of amendments is, quite properly, for the Presiding Officers, but that is why members sometimes choose to raise subjects only at stage 3 or to word amendments quite differently at that stage.
As I said, I do not believe that amendment 10 will open up the floodgates. The amendment makes the serious points that false accusations of rape are being made across the UK; that people's lives are harmed by that, even when the accusations are proved to be false; and that that harm lasts beyond the immediate exposure. If we are to ensure balanced justice, we should support Phil Gallie's amendment.
Every false accusation of rape betrays every genuine rape victim. Phil Gallie's amendment helps the cause of exposing genuine rapes. The people who have questioned his motives should plainly state what they think his motives are. No one has dared to say that they are anything other than a desire to bring balance and justice to our criminal procedures. I support Phil Gallie and will be pleased to do so in the vote.
I will comment on the question of stage 2 amendments that Roseanna Cunningham, George Lyon and others raised. Members most certainly should not hold back on amendments at stage 2 on the assumption that having them considered at stage 2 will lead to their not being considered at stage 3. That is not how the selection process works. Many amendments that are considered and disagreed to at stage 2 are, after due consideration by the Presiding Officers, selected for consideration again at stage 3.
My starting point is the fact that the reporting of rape is abysmally low and the conviction rate is even lower. I make it clear that I speak on my own behalf and on no one else's—including my party's.
The fact that an alleged accused is named has an impact on a victim. Roseanna Cunningham mentioned the fact that, in a small community, it is perfectly possible—in fact, it is likely—that, if an accused is named, the victim is named at the same time through the gossip-mongering that takes place. That is because most rapists are known to their victim. That is a cold, hard and fast fact.
However, I say to Phil Gallie that stage 3 is an awfully late point at which to lodge such a controversial amendment. I would like to hear a lot of evidence and solicit a lot of advice from people who know much more than I ever will about the matter. For that reason, I advise members to vote against amendment 10.
Some interesting points have come out of the discussion. We should go back to what the Minister for Justice said at stage 1, when he stated that the bill is all about balance and fairness. No one would disagree with that.
We must therefore examine amendment 10 and see how it will impact on fairness. Let us be clear: rape is a despicable act. However, that does not mean that we should jump to the automatic conclusion that those who are convicted of rape are always guilty. Similarly, I stress that I am not naive enough to think that some 80 per cent of those who are acquitted of rape charges are innocent. One must consider the question with balance.
Phil Gallie has ably articulated the arguments for extending anonymity to accused persons, as proposed in amendment 10.
Will Bill Aitken give way?
If Trish Godman will let me finish the point, I will.
The offence of rape attracts a degree of odium—and rightly so—that few other offences attract. As such, the accusation, never mind the conviction, reflects on the individual, although he may be quite innocent.
I would like some clarification. Did Bill Aitken say that those who are convicted are not always guilty? I think that that is what he said.
Clearly, I must have misled myself. I meant to say that I am not satisfied that many of those who are acquitted are innocent. I think that most people who listened to the content of my remarks would have made that assumption, but I am grateful to Trish Godman for allowing me the opportunity to clarify what I said.
The fact remains that those who find themselves charged and are subsequently acquitted carry with them a degree of odium that can impact profoundly on their lives. That is a real argument for extending anonymity to the accused in such cases.
Roseanna Cunningham's argument has considerable merit, although I know that she was coming from a different direction. In small communities, when we name the accused, by implication we name the victim, too. That must be considered.
The other side of the argument, which was well articulated by Johann Lamont and Maureen Macmillan, is that fear must not be inculcated into victims under any circumstances. That must always be taken into consideration. Victims may feel that, if the accused is not named, there is not the same disincentive against people committing such offences. I accept the argument that has been made about that.
There are many different ways of looking at the issue, but I defend Phil Gallie resolutely on his lodging amendments 10 and 17 at stage 3—he has the right to do so. I accept the other side of the argument, as expressed by Gil Paterson, that such a matter should perhaps be subject to more detailed examination and that stage 2 might be more appropriate for that. However, Phil Gallie is perfectly within his rights and is abiding by the democratic standards of the Parliament in raising the matter at this stage.
There are arguments on both sides of the fence. Conservative members will vote on the amendments as individuals, because we recognise that there are differences on the issue. We feel firmly, however, that irrespective of the results of the votes, the matter should in time be revisited. When that is done, a more detailed examination of the principles that Phil Gallie has ably espoused today may well result in a change to the legal system.
Bill Aitken has just said that Phil Gallie had the right to lodge amendment 10 at stage 3. No one is questioning Phil Gallie's right to do that; we are questioning the appropriateness of his choosing to raise the issue at this stage.
Phil Gallie highlighted some instances where there have been false accusations and where there is a real issue of anonymity. I sympathise with that point, but I will vote against amendment 10, because of the process that has been applied. Members from all parts of the chamber are genuinely sympathetic to the anonymity issue. However, the issue is big and needs to be examined thoroughly.
Committees can call evidence at stage 1. I would like to see the Justice 2 Committee's evidence on the subject of anonymity. Such evidence could even have been called at stage 2. I do not accept the points that Brian Monteith made. Although votes on amendments are taken at stage 2, it is possible to call for further evidence at that stage if the committee so desires.
There is no doubt about it: if individual MSPs such as me have to come into the chamber for a stage 3 debate to see amendments such as amendments 10 and 17, that is not sufficient. I acknowledge that the amendments were published in the business bulletin, but I did not see them. Phil Gallie's approach is no way to make law.
A number of members have asked to speak at the last minute, but we have to get through this group and the following one by 3.45 pm, so I go straight to the minister.
We have had a useful debate on this subject, but, like other members, I am slightly concerned. The committee process is vital in a unicameral legislature and issues of this magnitude should be addressed at stage 2, which allows for the appropriate amount of consideration. I will return later to some of the arguments that Roseanna Cunningham put forward, which I found interesting.
Amendment 10 would give the accused in rape cases a presumptive right to anonymity and amendment 17 would adjust the long title accordingly. In our view, it would not be right to grant anonymity to the accused in those cases, because the reasons that underpin the anonymity of complainers do not apply to the accused.
Complainers are allowed to remain anonymous because of the humiliating nature of the evidence that they have to give. A victim of a sexual attack has to be taken through the detail of what was done so that the Crown can establish that the crime was committed in the manner libelled. There is also the prospect of evidence about the victim's sexual history being led. We hope that the bill will make that less common, although it will still happen in some cases. If victims have to face the prospect that the nature of what happened to them and the detail of their private lives could become public knowledge, sexual offences would become even more under-reported than they are today.
The accused is not in the same position as the complainer and can choose whether to give evidence. His consensual private life is generally regarded as irrelevant. If the accused were given anonymity in rape cases, it could be difficult to resist granting anonymity to those who have been charged with other offences that the public regard as serious. Our system of open justice could be undermined.
More important, amendment 10 would create some anomalies. For example, it is not clear why anonymity should be given to those who are accused of rape but not to those who are accused of the sexual abuse of children. At present, complainers have no automatic right to anonymity. My understanding is that anonymity is granted to the accused in cases of abuse only in circumstances in which naming the accused would reveal the child's name. Anonymity is allowed only for the protection of the child.
Roseanna Cunningham made a similar point. If naming the accused were automatically to lead to the revelation of the name of the victim, there might be a need for anonymity of the accused. It is regrettable that we were unable to have that interesting debate at stage 2 because the amendments were not lodged for debate at that stage. The amendments would give the accused a clearer right to anonymity than the complainer.
I draw members' attention to the list of offences under proposed new section 288C(2) of the 1995 act. Why has rape been singled out as opposed to sodomy or clandestine injury to women? Singling out rape does not create the balance that Bill Aitken referred to.
On all those grounds, I ask members to reject the amendments.
I call Mr Gallie to respond and ask him to bear it in mind that, as he had a remarkably good whack when he opened the debate, he should keep his comments tight.
Let me take members through the history of the bill. Before the Justice and Home Affairs Committee was split into two committees, it discussed Maureen Macmillan's proposal for a sexual abuse bill. At that time, I raised the issue that amendment 10 highlights. If members read the stage 1 debate on the Sexual Offences (Procedure and Evidence) (Scotland) (Bill), they will find that I raised the same issue. I did not lodge the amendment at stage 2 because I felt that others had heard evidence and were considering the bill.
More than anything else, what changed my mind was a story in the Daily Mail on 23 February. I felt that it would be wrong for the Parliament to ignore such an omission in the law, which needed to be addressed. That is why I have lodged amendment 10 at this stage. As far as I am concerned, the amendment has been lodged precisely according to the rules of the Parliament.
I give my thanks to the several members who have said that they recognise the need for the change that amendment 10 would make. If the amendment is voted down, perhaps it will induce an examination of the situation, which might be dealt with in another bill in the not-too-distant future.
The minister mentioned the fact that the amendment would not apply to those who are accused of the sexual abuse of children or other crimes. I considered that issue, but felt that, at this late stage, I should take a simple approach. That is why I did not spread the load across the range of other offences.
I thank the Presiding Officer for giving me the opportunity to respond. I hope that members who are sympathetic to the amendment will vote with their consciences. If the amendment is unsuccessful, I will look forward to a future debate.
The question is, that amendment 10 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Johnstone, Alex (North-East Scotland) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLetchie, David (Lothians) (Con)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Young, John (West of Scotland) (Con)
Against
Adam, Brian (North-East Scotland) (SNP)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Cunningham, Roseanna (Perth) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Elder, Dorothy-Grace (Glasgow) (SNP)
Ewing, Dr Winnie (Highlands and Islands) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gibson, Mr Kenneth (Glasgow) (SNP)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (Edinburgh Pentlands) (Lab)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Harper, Robin (Lothians) (Green)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McLeish, Henry (Central Fife) (Lab)
McMahon, Mr Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Paterson, Mr Gil (Central Scotland) (SNP)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Quinan, Mr Lloyd (West of Scotland) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Sturgeon, Nicola (Glasgow) (SNP)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Andrew (Central Scotland) (SNP)
Abstentions
Fergusson, Alex (South of Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
The result of the division is: For 10, Against 80, Abstentions 2.
Amendment 10 disagreed to.
Section 8—Exception to restrictions under section 274 of 1995 Act
The knife falls at 3.45 pm. We move to group 4. Amendment 1 is grouped with amendments 2 and 3.
Amendment 1 is purely a drafting amendment that results from the removal of a subsection by an Executive amendment at stage 2. The words "such an application" no longer make sense and amendment 1 spells out the type of application that is meant.
Amendment 2 is a tidying-up amendment. The bill amends section 71 of the Criminal Procedure (Scotland) Act 1995 to allow a pre-trial hearing in a sheriff-and-jury case to be used for the determination of a character or sexual evidence history application. Amendment 2 moves the words that achieve that effect to a more logical space within section 71 of the 1995 act. They will now come after section 71(2), which contains other matters that the court may consider at a pre-trial hearing.
Amendment 3 adds character and sexual history evidence applications to the list.
I move amendment 1.
Amendment 1 agreed to.
Amendments 2 and 3 moved—[Dr Richard Simpson]—and agreed to.
Section 8B—Disclosure of accused's previous convictions where court allows questioning or evidence under section 275 of 1995 Act
Amendment 14 is in a group on its own.
I support the inclusion of section 8B on previous convictions. It is consistent with the current position whereby if the defence were to attack the victim's bad character, the prosecution could then refer automatically to the accused's previous convictions. The perception is that that is not well used. The evidence that the Justice 2 Committee heard at stage 2 is that prosecutors assume that it is the role of the judge and the judge assumes that it is the role of the prosecutor. It is important to ensure that it fits into the legislation.
The Justice 2 Committee heard evidence from Professor Gane, who is a leading academic in criminal law, and from the Law Society of Scotland. They voiced concerns about the effect of the provisions in section 8B. Professor Gane claimed that the bill does not bring out the important distinction between the evidence of previous convictions that goes towards proving what lawyers would call sufficiency—that which proves that the accused committed the crime and evidence that attacks the credibility of the accused. In his evidence Professor Gane suggests that some previous convictions are likely to have a significant impact on the jury's perception.
That might assist the Executive's overall intention, given that it wants to ensure that there is proper weighing up of the evidence. However, I also note that the Executive's intent is to ensure a deterrent effect—if the defence attacks what it believes to be the complainer's bad character, any relevant previous convictions of a sexual nature are likely to be revealed in court. That is a good principle, which I support. For too long, victims have been attacked by defence agents who have used evidence of their sexual history or bad character. I want to ensure that there is clarification and that the purpose of disclosing the accused's previous convictions is not to establish sufficiency of evidence but to determine the credibility of the accused's evidence.
A further point of clarification is required, although amendment 14 does not address it. There is a principle of weighing the evidence of both the victim and the accused and there is a test that establishes the probative value of evidence of the victim's bad character or sexual history. However, there does not seem to be a corresponding test for determining whether evidence of the accused's previous convictions can be used.
I felt that I should lodge an amendment in order to ask the Executive to clarify that point, given that members of the Justice 2 Committee heard evidence on it only last week. When judges determine in advance of the trial what evidence to allow—as they will do under the bill's provisions—it is important that they are clear about the intentions behind the legislation. It is also important that, when judges direct the jury, they are clear that their direction means that the jury can use evidence of the accused's previous convictions to establish the credibility but not the sufficiency of the evidence.
I want to ensure that, in redressing the balance, we get the balancing act absolutely right, so that the interests of the accused and of the victim are treated evenly. I am interested in the comments that the Executive is prepared to put on the record on that point.
I move amendment 14.
I will make a brief contribution in support of amendment 14, although my reasons are slightly different from those of Pauline McNeill. I support all that she said, but I recognise that two specific points were made in the evidence that the Justice 2 Committee heard last week. I ask the Executive for clarification on those points, as such clarification could be useful.
First, the deputy convener, Mr Aitken, suggested that the use of previous convictions could be extended and could amount to corroboration. Of course, that would be a further extension of the Moorov principle, which has already caused some debate. I would be interested to hear from the Executive that that is explicitly not the intention and that previous convictions could never be used in that way. It would be useful if the Deputy First Minister—I believe that he is responding to the debate on amendment 14—would put on the record the Executive's views on that point.
Secondly, I bring to the attention of the Deputy First Minister the words of Gerry Brown, who is from the Law Society of Scotland. Gerry Brown related subsection (2) of new section 275A of the 1995 act to subsection (4) of that section—the only exemptions to subsection (2) are outlined in subsection (4). Under paragraph (b) of subsection (4), a legitimate objection to the disclosure of the accused's previous convictions would be when such disclosure would be
"contrary to the interests of justice".
Gerry Brown said:
"The words ‘interests of justice' are used but there is no guidance as to what is meant by them. Other legislation and regulations refer to interests of justice, but include guidance as to how a judge is to interpret that. That must be clarified in the bill.—[Official Report, Justice 2 Committee, 27 February 2002; c 1065.]
I ask the Deputy First Minister to clarify why that guidance was not given in the bill. Given that that evidence was received only last week, will he take the opportunity—either today or in the near future—to clarify precisely what the phrase "interests of justice" means?
It is fair to say that the Executive amendment that inserted section 8B at stage 2 has caused the Justice 2 Committee real problems. Once again, we are back to the question of balance. It is open to any accused—in a rape trial, for example—to attack the character of the witness. When he does so, it is in the certain knowledge that, on the basis of that attack on a Crown witness, the prosecutor can introduce evidence that relates to his character. At that stage, it seems to me that the position is in kilter and is balanced, fair and reasonable.
The presumption of innocence is a basic and important principle of Scots law. Everyone is entitled to a fair trial and the fact that an individual has previous convictions, which may be either analogous or quite distinct, is not relevant to the judicial process. We are quite firmly of that view. It is not good enough for the Executive effectively to attempt to do a Moorov in that respect. We fully accept that there are significant difficulties with corroboration in rape cases. Apart from the occasional bizarre circumstance, there are only two witnesses to acts of that type—the complainer and the accused.
During the period of our Administration, we introduced changes to the rules of evidence that enabled corroboration to become much easier, through the demonstration of distress or personal injury. However, it strikes us that the provisions in section 8B go too far. What is the purpose of introducing previous convictions? Is it to corroborate the evidence of the complainer by means of those convictions? If that is the case, there is a serious risk that we will prejudice the basic principle of Scots law that we all cherish—the entitlement to a fair trial and the entitlement for the case to be considered in isolation. The disclosure of previous convictions raises significant difficulties.
The bill is not of major portent. Although Conservative members feel that there is some value in a number of the matters that have been raised, we genuinely feel that judges do a reasonably good job and, for example, would protect the complainer against a cross-examination of a type that would be distasteful. At the same time, we feel that we should stand by the basic principle of the presumption of innocence.
If we could resolve what the Executive's intention is with the provisions that it has introduced, and if the Executive were to say that previous convictions will not amount to a primary or a secondary source of evidence, would the Conservative party support the principle of the inclusion of previous convictions? It seems to me to be only fair that if the defence can attack the character or the sexual history of the victim, the defence should think about the disclosure of the history of the accused. That seems to be a balanced position. What concerns me most is what the disclosure of convictions is then used for. It would be wrong to use that for corroboration.
That was a useful and constructive intervention. I understand where Pauline McNeill is coming from. However, we still do not know where such evidence is going. As I have said, the protection exists whereby if the character of the complainer is attacked, the prosecutor can respond. That must have an inhibiting effect on those who are likely to attack the character of a complainer. Someone with a series or a schedule of convictions for rape or sexual assault is hardly likely to attack the sexual character of the witness for fear of those convictions emerging in evidence. That is the existing position.
We must ask what the purpose is of extending the existing provisions. The only conclusion that I can come to is that the Executive seeks to use the narration of such convictions as corroboration of the offence concerned and to extend the Moorov principle beyond a stage that most members would regard as being acceptable. I will listen very carefully to what the Minister for Justice has to say in response. I must flag up the fact that we are extremely uneasy about the proposals in question.
I wonder how many people who are present understand what "doing a Moorov" means. I know that a few members do, but I suspect that many do not. We are entering discussions that are quite complicated for those who do not have legal backgrounds.
I would be interested to hear the Executive's view on amendment 14. It seems that a serious debate has taken place in the Justice 2 Committee on the disclosure of previous convictions. There is a real debate about the way in which evidence of PCs will be used. Will it be used as corroboration, which most people understand, or will its use go further, to provide a sufficiency of evidence? Although that is a slightly different matter, it is related. Will such evidence be used primarily, or even solely, in relation to the credibility of the accused?
A fine balance is involved, which Bill Aitken talked about. Pauline McNeill's amendment 14 is useful, because it makes it explicit that we are talking about credibility and that it is not expected that evidence of PCs should be used in a corroborative manner. I would be surprised if the Minister for Justice argued that PCs ought to be used in a corroborative manner, and I look forward to hearing what he says.
I am bound to echo concerns that once PCs are in evidence, the point becomes moot. The famous phrase concerning an elephant in the jury room describes the situation. Matters can become difficult to disentangle, but courts must deal with the impact on a jury all the time. I was interested in the brief discussion of jury studies in the Justice 2 Committee's meeting last week. We ought to return to how juries handle such evidence. That is a more difficult matter to handle and the bill cannot do that. At present, I am much disposed towards supporting Pauline McNeill's amendment. I am interested in hearing what the minister says.
I thank Pauline McNeill for lodging amendment 14, which has given us a worthwhile and useful opportunity to discuss an important aspect of the bill that exercised the minds and the time of the Justice 2 Committee and has generated considerable interest and useful discussion.
I will make clear the Executive's position on the use of previous convictions, as I believe that Pauline McNeill invited me to. Sections 266 and 270 of the Criminal Procedure (Scotland) Act 1995 allow the disclosure of previous convictions in some circumstances. That is not quite the novelty that some of Bill Aitken's comments suggested that it was. It is significant that the sections do not spell out the use that can be made of such evidence.
Those sections are not often used. I do not think that it has ever been argued that previous convictions that were admitted under those sections might be used to provide corroboration. Textbooks contain statements to the contrary. Previous convictions that are admitted under those sections go not towards proof of the offence that is charged, but towards the credibility of the accused. In other words, the sheriff or jury can take them into account in deciding what they make of the accused and whether they believe him.
Nothing in new section 275A of the 1995 act would alter the position, which the Executive has never intended to alter. Previous convictions cannot supply corroboration. If the Crown does not have a legally sufficient case, previous convictions will not take it over that hurdle. I hope that I have described the situation explicitly.
Pauline McNeill's amendment has a slight danger. As I said, sections 266 and 270 of the 1995 act are not qualified. If amendment 14 were passed, it would raise questions about those sections and could create the possibility of using them to provide corroboration, because that would not have been ruled out expressly. I hope that the Parliament will welcome the reassurance that I have given.
New section 275A will apply only when the accused has applied successfully to bring in material about the character or past behaviour of the complainer. In that situation, disclosure in evidence of any previous convictions of the accused for sexual offences will automatically be considered by the court. Pauline McNeill was right to say that, at present, there is a stand-off or uncertainty about whether the question belongs to a judge or a prosecutor. The presumption will be in favour of disclosure, but the accused will be able to overturn that if he satisfies the court that it would not be in the interests of justice in the circumstances of a case to do so. I will deal with the interests of justice in a moment.
Given the existence of tests for the character or past behaviour of the complainer, one of the questions that Pauline McNeill asked was about the absence of a similar test with regard to the admission of previous convictions. One of the fundamental reasons for that is that, once such a test has been triggered by the admission of evidence as to the past character or behaviour of the complainer, there is a presumption that the test is not about whether previous convictions should be admitted. That is because of the presumption that such evidence should be admitted, which puts the onus on to the accused to give cause to the court, sheriff or judge as to why the convictions should not be admitted.
Gerry Brown of the Law Society raised the question of the interests of justice in his evidence to the Justice 2 Committee. Duncan Hamilton quite properly asked him what was understood by the phrase. As I indicated earlier, what is understood is that the accused can overturn the presumption by satisfying the court that it would be contrary to the interests of justice in that case.
The breadth of the phrase "interests of justice" will benefit the accused. It will allow the accused to present a reasonable argument against disclosure. Given those circumstances, there is always a risk in some future case that we may find that the circumstances that are presented against disclosure are found reasonable by a judge. However, if the definition did not fit the test, the judge would have to proceed with disclosure. That could make the new provision more complicated.
Previous sexual offence convictions will be disclosed automatically unless the accused objects. Although the interests of justice test is a broad one, the reality is that a court will be considering the specific grounds for objection as advanced by the accused in that particular case. It will be for the court to determine whether in all the circumstances the grounds weigh up sufficiently to prohibit disclosure.
Does the minister accept that the matter may not have been handled very well? If members had known much of what he has just said at an earlier stage, the degree of concern that has been expressed over the past couple of weeks would not have been expressed. Had we received the minister's assurances at the time, and had that wording been included in the bill that was considered at an earlier stage, we would have been suitably reassured.
I ask the minister to underline the commitment that he has given that there is no change in the existing position, which is that previous convictions could in any event have been brought into a court of evidence. I ask the minister to confirm that he seeks to make that compulsory, as opposed to leaving it to the discretion of the prosecutors.
I support presumption rather than compulsion. It is also fair to say that when the matter was dealt with at the time that an amendment was first lodged at stage 2, I accept and apologise for the fact that we did not include the provision in the original bill. It is clear that the issue is complicated. We were anxious that the drafting of the wording was correct. For a number of reasons, not least of which was a wish to make progress, we did not want to hold back other parts of the bill.
When Richard Simpson dealt with the matter at stage 2, the specific question of corroboration was not raised. It has now been raised and I repeat that it has never been the intention of the Executive, nor is it the Executive's intention, to use the provision to provide corroboration. Previous convictions cannot supply corroboration.
The Justice 2 Committee asked Professor Gane about compatibility with human rights legislation. He said:
"I think that the bill is ECHR compliant. As it is drafted, I cannot see what the ECHR objections would be."—[Official Report, Justice 2 Committee, 27 February 2002; c 1061.]
That has always been a consideration for the Parliament and it is helpful to have the views of Professor Gane on the matter.
I hope that I have provided the assurance that is sought by Pauline McNeill and other members who spoke in the debate. Given those circumstances, I hope that Pauline McNeill will not press amendment 14.
I call Pauline McNeill and ask her to be brief, as I have two further amendments to fit in before 4.15 pm.
I am more or less satisfied with what the minister has said this afternoon. He cleared up the two points that were raised—first, the question of what evidence can be used for and, secondly, the question of what is contrary to the interests of justice.
I was slightly unhappy with the wording of new section 275A(2) of the Criminal Procedure (Scotland) Act 1995, which says:
"Any conviction placed with a judge … shall, unless the accused objects".
It is not clear that that is an automatic presumption. However, the minister has clarified on the record that there will be an automatic presumption that, if the tests are successful—including those relating to the victim's sexual character and history—previous convictions will be taken into account unless the accused can demonstrate that that would be contrary to the interests of justice. As a result, I will not press amendment 14.
Amendment 14, by agreement, withdrawn.
Schedule
Notice to accused about effect of sections 288C and 288D of 1995 Act and special pre-trial procedures: amendment of 1995 Act
We move to the final group of amendments. Amendment 4 is grouped with amendments 16, 5 and 6.
Amendment 4 allows a trial to be postponed at a second or subsequent pre-trial hearing in a sheriff or jury case. The bill provides for a first pre-trial hearing to be used to establish whether the accused is legally represented. The power already exists to postpone the trial at that hearing. However, a solicitor might be dismissed by the accused or withdraw from acting after that hearing had taken place. The bill obliges such a solicitor to notify the court, which would then fix a further pre-trial diet to sort out legal representation. It might be necessary to postpone the trial at that further diet, as the solicitor newly appointed by the court might need additional time to prepare. Amendment 4 allows the court to postpone the trial.
Amendment 5 allows the court to postpone the trial at a pre-trial hearing in a High Court case. The bill provides for a new pre-trial hearing purely to deal with the issue of the accused's legal representation in such cases. It might be necessary to postpone the trial at such a hearing, and again a solicitor who has been newly appointed by the court might need more time to prepare.
Amendment 6 is a consequential amendment following the passing of emergency legislation on intermediate diets in the Parliament last week. The bill creates a new pre-trial hearing called an interim diet in sheriff court summary cases, which specifically deals with the accused's legal representation in a sexual offence case. It can be conjoined with an intermediate diet. Amendment 6 is designed to ensure that the loophole closed by the emergency legislation is also closed in relation to new diets provided for in the bill. In other words, it ensures that the emergency legislation which we passed last week is extended to reverse the effect of the appeal court decision on new interim diets.
Although amendment 16 is well intentioned, it is unnecessary, as the situation that it is intended to address is already covered by new section 71A(1) and (2) of the 1995 act, as proposed in paragraph 6 of the schedule. New section 71A(6) of the 1995 act allows a new solicitor appointed by an accused to ask the court to dispense with the further pre-trial diet. As most accused will appoint another lawyer, that measure will save court time by doing away with unnecessary hearings.
However, the solicitor who asks the court to dispense with the further pre-trial diet might be dismissed or withdraw before the diet has either been held or dispensed with. In that event, the solicitor is required under new section 71A(7) of the 1995 act to advise the court of what has happened. The court would then simply not dispense with the diet and would proceed as originally planned, with the accused required to attend to explain to the court his intentions regarding legal representation.
Subsections (1) and (2) of new section 71A deal with the situation where a solicitor is dismissed or withdraws before the trial, but after the further pre-trial diet has either been held or dispensed with. The solicitor must inform the court of what has happened and, under subsection (2), the court must order a further pre-trial diet.
In those circumstances, I ask members to reject amendment 16 and support amendments 4, 5 and 6.
I move amendment 4.
I have tried to follow what the Minister for Justice has just said about amendment 16. If I was struggling a little through his speech, I suspect that everyone else was as well. As a result, I think that I will go ahead and move amendment 16.
Amendment 16, which is supported by Bill Aitken, provides for a further pre-trial diet to ascertain whether the accused has representation in circumstances where the solicitor has been dismissed or has withdrawn prior to the trial in terms of new section 71A(7) of the Criminal Procedure (Scotland) Act 1995, as proposed in paragraph 6 of the schedule of the bill.
This is not an unusual procedure; it is recognised and well known. Basically, the schedule makes detailed provision on the procedural steps that will be invoked to implement the proposals set out in the bill. Paragraph 6 creates a further pre-trial diet in solemn cases to enable the court to ascertain whether the accused will be represented for trial. The amendment has the effect that, on being informed that the solicitor is being dismissed or has withdrawn in terms of new section 71A(7), the court shall order a further diet to ensure that procedures are put in place in advance of the trial to instruct a court-appointed solicitor. It is really an intermediate diet to ensure that everything is working and that we will get to where we intend to go in respect of any trial.
The amendment also reflects the procedure that is to be adopted under new section 72A(9) of the 1995 act, as proposed in paragraph 7 of the schedule, and under new section 148A(9) of the 1995 act, as proposed in paragraph 11 of the schedule, and at least has the argument of consistency behind it.
We have three minutes in hand.
I will not take up the three minutes, Presiding Officer.
It might be argued that this is a belt-and-braces provision. Nonetheless it is still worth while because there could be a situation in which there would be unnecessary delay in a trial because of the lack of representation. We must have the additional diet to ensure that everything is in good running order and that there are no further delays. There is merit in the amendment, which the Conservatives will support.
I reiterate the Executive's view that the amendment is probably belt, braces and something else too. It is unnecessary, in that the kind of circumstances referred to by Roseanna Cunningham and Bill Aitken would be covered by what is already in the bill. I do not think that this is a life-and-death matter. I would argue that the situation is provided for by the provisions already in the bill.
Amendment 4 agreed to.
Amendment 16 moved—[Roseanna Cunningham].
The question is, that amendment 16 be agreed to. Are we agreed?
No.
There will be a division. [Interruption.] There has been a problem with the voting equipment. We will take the vote again.
For
Adam, Brian (North-East Scotland) (SNP)
Aitken, Bill (Glasgow) (Con)
Cunningham, Roseanna (Perth) (SNP)
Douglas-Hamilton, Lord James (Lothians) (Con)
Elder, Dorothy-Grace (Glasgow) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fergusson, Alex (South of Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Mr Kenneth (Glasgow) (SNP)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Harper, Robin (Lothians) (Green)
Hyslop, Fiona (Lothians) (SNP)
Johnstone, Alex (North-East Scotland) (Con)
Lochhead, Richard (North-East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLetchie, David (Lothians) (Con)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Paterson, Mr Gil (Central Scotland) (SNP)
Robison, Shona (North-East Scotland) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Sturgeon, Nicola (Glasgow) (SNP)
Tosh, Mr Murray (South of Scotland) (Con)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Wilson, Andrew (Central Scotland) (SNP)
Young, John (West of Scotland) (Con)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (Edinburgh Pentlands) (Lab)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McLeish, Henry (Central Fife) (Lab)
McMahon, Mr Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
The result of the division is: For 33, Against 61, Abstentions 0.
Amendment 16 disagreed to.
Amendments 5 and 6 moved—[Mr Jim Wallace]—and agreed to.
Long Title
Amendment 17 not moved.
That concludes consideration of amendments at stage 3.