Plenary, 13 Sep 2001

Meeting date: Thursday, September 13, 2001

Official Report 625KB pdf

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International Criminal Court (Scotland) Bill: Stage 3

We move on to the stage 3 proceedings of the International Criminal Court (Scotland) Bill. I will make the usual announcements about the procedure that will be followed.

First, we will deal with amendments to the bill. We will then debate the motion to pass the bill. For the first part of the proceedings, members should have a copy of the marshalled list and of the groupings that have been agreed. Amendments will be debated in groups where appropriate and each amendment will be disposed of in turn. An amendment that has been moved may be withdrawn with the agreement of the members present. It is possible for members not to move amendments should they so wish. The electronic voting system will be used for all divisions. I shall allow an extended voting period of two minutes for the first division that occurs after each debate on a group of amendments.

Section 1—Genocide, crimes against humanity and war crimes

Amendment 40 is grouped with amendment 41.

It is ironic that we are debating the bill against the background of the recent tragic events and also the death yesterday of Anton Gecas. That said, the bill does not deal with terrorism.

Amendment 40 seeks to displace what I call the minimalism of the Scottish Executive test for jurisdiction in pursuing alleged war criminals. It will substitute what I refer to as absolute universal jurisdiction. Members will have to pin their ears back at this point, as there are two kinds of jurisdiction. I refer to the absolute kind, which, by means of amendment 40, I wish to incorporate in the bill. That contrasts with partial universal jurisdiction, which—to put it simply—is the presence test. If amendment 40 is agreed to, it will have the consequential effect of making section 6 redundant. As that is the subject of amendment 41, I will speak only to amendment 40. The bill is inadequate and dismally disappointing. A sullen adherence to the residence test is parochial when we have the opportunity to be truly international.

Although amendment 40 is important, for many it is pretty esoteric stuff. As ministers and a few other souls in the chamber will recall, the argument was aired at stage 2. Many members will not have read the Official Report of the stage 2 debate, nor will they have committed the proceedings to memory. I will refer liberally to the Official Report with reference to the residence test.

There are obvious practical anomalies thrown up by the test. I will give an example. Mercenaries from many nations commit a heinous crime against humanity. It is committed against Red Cross volunteers who are engaged in humanitarian work. Two of the mercenaries are Scots; one is a German car trader who has just bought a flat in Glasgow, and another is an Italian who has commercial properties in Scotland and commutes here for business purposes. The latter two, when shopping in Princes Street, are recognised by one of their Red Cross victims. Are they resident in Scotland? Are they residents as defined under section 6 of the bill? I do not know and I suspect that neither do the ministers.

During the stage 2 debate, Iain Gray, the Deputy Minister for Justice, said that a person's uncertainty about their residency would act as a deterrent. That argument was also used during a Westminster debate on the UK bill, to which I will refer later. The argument is that in the minds of the mercenaries there would always be an element of doubt whether the residence element of the legislation applied to them. They might think that they would be arrested and extradited to another country that has jurisdiction over them, or arrested and surrendered to the international criminal court in The Hague.

That argument can be unpicked because uncertainty works both ways. If nations exercise universal jurisdiction, whether it is universal or partial, there is no hiding place. However, war criminals in Scotland might just have a long holiday, ensuring that residency—whatever that is—could never apply. Residency is a complex notion. As with immigration and whether a person is resident, there are many different tests: for tax, for matrimonial law and for education rights.

If we have no jurisdiction, a criminal could flee while awaiting extradition procedures. With the right to arrest, as provided for by my amendment, or even on the presence test, there could be no flight, nor even a safe haven—no uncertainty there. The deterrence argument is a fig leaf for the flaw in the bill.

The minister refuted the argument that criminals might visit Scotland with impunity by stating first that action is being taken to strengthen immigration rules. Does he really believe that a determined, guilty person could not work round those? Secondly, he contended that there might be insufficiency of evidence, even if we had universal jurisdiction. However, that would be determined by the Lord Advocate. If he were unable to try the case for that reason, it could be remitted to the international criminal court—there are rules allowing that. Thirdly, the minister argued that we should move in step with the statute and the international community.

Universal jurisdiction has been adopted by the following countries: Belgium, Canada, New Zealand, Switzerland, Germany, Argentina, Austria, Belize, Botswana, Dominica, Fiji, Finland, France, Ghana, Iceland, Italy, Lesotho, Luxembourg, Mali, Norway, Sierra Leone, South Africa, Spain, Tajikistan, Trinidad, Tobago, Venezuela. Residence has been adopted by San Marino, Gabon, the Marshall Islands, Senegal and, of course, the UK. I know which group I think is the international community.

Will the honourable lady give way?

It is nice to be called honourable.

The member lists the countries that give support to the Rome statute. How many countries have not signed up to it and how many countries have not registered any kind of support?

That is irrelevant. As I move through my speech I will mention one country that has not signed up.

Two men commit crimes against humanity. One is a Scot, the other is a Canadian. If they were both in Scotland—with the Canadian on holiday—we could prosecute only the Scot. If they were both in Canada—with the Scot on holiday—the Canadians, with partial universal jurisdiction or the presence test, could prosecute both. Under the terms of my amendment, if they were both on holiday in France, Scotland could prosecute them.

In the first example, how could a prosecution properly proceed against only one of the accused, and not his co-accused? We might have two prospective war criminals: one in Scotland and one in Canada. The residence test means that if we had all the evidence that we required and wished to prosecute, we could not prosecute the two together. We must remember that the purpose of the bill is that the national court will be the first court to try the case. The ICC steps in only in other, special circumstances. That is poor law.

Finally, I refer the Liberal Democrats and the Conservatives to the House of Commons deliberations on these very issues earlier this year. There, the Conservative Crispin Blunt argued eloquently for absolute universal jurisdiction and pressed his argument to a vote, which he lost by five votes to 10. It was all aired far more thoroughly at Westminster than we have had the time and opportunity to do here.

Mr Blunt stated:

"Under universal jurisdiction, we will be able to claim the right to protect … citizens who are victims of such crimes, wherever they are in the world. We do not want to limit such jurisdiction to presence"—

presence, not residence—

"in the United Kingdom."—[Official Report, House of Commons, Standing Committee D, 3 May 2001; c 306.]

He moved on to support the amendments of Robert Maclennan, Liberal Democrat, who was arguing for the presence test. Again, in an eloquent and well-argued position for partial jurisdiction, Mr Maclennan said:

"The term ‘residence' is complex."—[Official Report, House of Commons, Standing Committee D, 3 May 2001; c 310.]

He went on to define it in terms of English law, which varies slightly in some respects from Scots law.

Only slightly?

It only varies because much of the residence test regards tax and immigration, which is, of course, UK-wide.

In English law, the term residence

"bears varying meanings according to its context, and great caution must be exercised before authorities on the meaning of residence in context such as bankruptcy, taxation, or … poor law … are applied …. In particular, it is clear that some degree of permanence is required for the acquisition of residence in some contexts, but not, or to a lesser extent, in others."

That was Mr Maclennan's argument. It is an argument that is also sustained in Scotland, where many lawyers are well aware of the complexities of defining that difficult notion of residence.

In the House of Lords, Baroness Scotland said:

"One cannot say with any certainty, for example, that every person who has come to the UK and stayed for two or three years is definitely a resident here. On the other hand, someone who has been here for a matter of days but has displayed every sign of residing here on a more permanent basis may be considered a resident."—[Official Report, House of Lords, 12 February 2001; Vol 622, c 85.]

That is common sense.

Robert Maclennan said:

"The trouble is that definitions of residence will have little to do with the degree of moral culpability that is attached to the crimes with which they are charged. The definitions deal solely with the issue of jurisdiction. … That means that the Bill will hinge on an uncertain test, or on a legally certain but narrow definition. We should not be happy with either."—[Official Report, House of Commons, Standing Committee D, 3 May 2001; c 311.]

Robert Maclennan made it clear that that was the Liberal Democrat position on jurisdiction.

It is interesting that during the debates at stages 1 and 2—brief though they were—the Conservatives and the Liberal Democrats made no representations that reflected in any way the arguments that were put so well at Westminster.

I refer to the deterrence element again. Absolute jurisdiction—which was argued for by Robert Maclennan—would have allowed the immediate arrest of the German car trader and the Italian businessman. The Scottish National Party wants Scotland to play its full part in bringing those responsible for crimes against humanity to justice; as Robert Maclennan said, residence deals only with jurisdiction, not culpability. It is petty-minded, as well as being an uncertain anchor for prosecution.

I quote a contributor to the House of Lords debate:

"This is an opportunity to offer a lead to other countries in an exciting new, international venture. … We should not sidle towards … the edge of the crowd; we ought to be looking to give a lead here."—[Official Report, House of Lords; 12 February 2001; Vol 622, c 74.]

Well, I know sidling to the edge of the crowd when I see it.

I move amendment 40.

I have some sympathy with the case that has been put forward but it is outweighed by other considerations.

On 14 June, the minister gave three reasons for opposing universal jurisdiction. First, it is not consistent with the traditions of Scots law, which is based on territorial principles. Secondly, we have taken universal jurisdiction in the past only where it was required by international treaty. Thirdly, the Administration considered it inappropriate to assume the role of global prosecutor. We agree with the Administration's position, since it would be unrealistic for us to assume the role of police enforcer throughout the world. We believe that universal jurisdiction, unless supported by international treaty, would be unenforceable.

Of course, it may be that there will be further international treaties in the fullness of time, but not at this stage. In any case, the collection of evidence to meet the 110-day time limit would be very difficult to meet. We believe that it would be a mistake, in the first instance, to bite off more than we can chew. The bill gets it about right. However, that does not preclude further legislation. For those reasons, I recommend to my colleagues that they support the Administration.

I oppose amendment 40. We had the same debate at stage 1, and it is a legitimate debate to have. It shows the maturity of a Parliament that it can at least debate the possibility of incorporating that difference from the UK act into the Scottish bill. However, the arguments against the adoption of universal jurisdiction are quite overwhelming.

Christine Grahame listed the countries that have signed up to that concept, but the vast majority of countries have not signed up to it. That means that the practicalities of adopting such a principle are huge. What Christine Grahame is suggesting would mean, for example, that Scotland could detain a French national, although France is not signed up to universal jurisdiction, and attempt to prosecute him or her. The idea that there would be no diplomatic repercussions for Scotland doing that to nationals of countries that had not signed up to the principle is a little naïve.

Many practicalities must be considered in connection with the concept of universal jurisdiction. We could have to prove a case against a person who is on holiday in Scotland, who is just passing through, and who has virtually no connection with Scotland. In cases of international crime, the scene of the crime will often not be in Scotland either. Scotland has legal time limits. In custodial cases, 110 days is all that we have to prove a case against a person, and such practicalities would have to be considered before adopting such a principle.

What is Pauline McNeill's solution to the problem of, let us say, two co-accused, one of whom has a residence in Scotland and can be tried here—supposing it was appropriate for the case to be tried here—and the other of whom does not have a residence here and therefore cannot be brought to justice in this country? That would mean running a case against one accused, without the co-accused. Is not that a huge problem?

Whatever principle is adopted, there will be anomalies, and the anomaly in that example raises an important point. However, Christine Grahame is looking at the bill without considering other measures that are in place, such as other international obligations and the right of extradition. We must consider the whole of international law, not just the bill that we are examining today, to see what powers are available to Scotland and to the UK.

On balance, the practicalities of adopting such a principle mean that I am unable to support amendment 40. It is important to note that the treaty does not require Scotland, or indeed the UK, to adopt such a principle. I therefore oppose the amendment.

I too encourage my colleagues to oppose amendment 40. I appreciate Christine Grahame's point and she has been consistent in her advocacy of it at all stages of the bill. However, Pauline McNeill has also made a number of important points.

Christine Grahame intervened to give an example of problems with residence. It is my understanding that, if the co-accused was not resident in Scotland, that is exactly the sort of circumstance in which the international criminal court would take action. That would be dealt with by the proceedings of the court.

Lord James Douglas-Hamilton listed three reasons that were given by the minister at stages 1 and 2 as to why universal jurisdiction is not appropriate for Scotland, the principal one being that the main principle of Scots law is based on territoriality. Paragraph 25 of the Justice 2 Committee's stage 1 report on the bill stressed the importance of maintaining

"internal consistency within domestic law, rather than trying to harmonise with the International Criminal Court in circumstances where that is not required."

Would Tavish Scott have supported Robert Maclennan's position on the presence test?

I find it interesting that Christine Grahame raises what is going on at Westminster and what is said in another place, in another context, about a different form of law, where different principles apply. Perhaps she will want to reflect on that.

The second argument that Lord James Douglas-Hamilton mentioned against adopting the principle was that universal jurisdiction has hitherto been enshrined in Scots law only when that has been required by international treaty. Pauline McNeill made the same point. Universal jurisdiction was not part of the Rome statute. Indeed, the treaty has been built by way of international consensus. If one looks at the wider picture, especially in the light of recent events, that is an important measure that the international community can use to make progress. It will help to ensure that, in addition to the countries that have already signed up to or are about to ratify the treaty, many other countries will become involved. That is an aspiration that I hope all members share.

Thirdly, as Lord James said, it has been argued that Scotland would not want universal jurisdiction in this case, because it demands that our legal system assume the responsibility of global prosecutor. That is a worthy consideration, which should be taken into account. For those reasons, I oppose amendment 40.

During stages 1 and 2, the Executive position was that universal jurisdiction is not the most appropriate approach. There are several key reasons why that is so, which are worth repeating.

We believe that the strongest guiding principle that should inform our approach to this matter is the will of the international community; the clear will of the international community in this respect is the Rome statute. A departure from the international consensus would surely constitute parochialism on our part. It is therefore important to focus on the Rome statute as our legislation moves through its final stage in the Scottish Parliament and particularly as we discuss amendments 40 and 41. After all, the main purpose of the bill is to ensure that Scotland and the United Kingdom are able to ratify the Rome statute on the international criminal court.

The statute is a carefully drafted document that was finalised only after many years of debate and discussion, so it represents the clearest expression of the thinking of the international community on how we should tackle the gravest of crimes. It envisages an approach that encourages individual countries to live up to their own responsibilities in the prosecution of war crimes and other crimes that have been committed by their own citizens. The preamble to the statute says:

"the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions".

Therefore, national courts will retain primary jurisdiction. However, where individual countries are unable or unwilling genuinely to take action, perhaps for some of the reasons that Christine Grahame has outlined, where conflict has led to a collapse of the local judicial system, or where a dictatorial Government refuses to punish its own abuses, the statute envisages that the ICC will be established, as provided for in article 1,

"to exercise its jurisdiction over persons for the most serious crimes of international concern".

That contrasts clearly with an alternative approach, which the international community might have chosen to take, whereby ratifying countries would ensure that they had universal jurisdiction to deal with war criminals no matter where they were found or where the crimes occurred. Had that approach been taken, the need for the international criminal court itself would have been much less clear. That was explicitly not the consensus.

Nowhere does the statute stipulate that individual countries should head down the path of prosecuting individuals who have no connection to them. Given the often enormously complex nature of the international conflicts that engender such situations, it is not difficult to see why that is the case.

Does the minister accept that, although the statute does not say that a country must have universal jurisdiction, neither does it say that a country cannot have universal jurisdiction and that that is a matter for individual nations? Does he think that Canada has made a big mistake in accepting the presence test, for instance?

Let me address the approaches that other countries have taken a little later in my speech. There were two alternative routes that the discussions on the Rome statute could have chosen to take. One was to promote the idea of universal jurisdiction in as many countries as possible to allow international crimes to be brought to justice and the alternative was to set up the international criminal court as the institution to bring such cases to justice. Setting up the court would not have been required if the alternative approach had been taken. The construction of the international criminal court in and of itself is clear evidence of the non-requirement for universal jurisdiction to be adopted, except in countries where that is the legal tradition, which is not the case in Scotland.

I am glad that the minister has such faith in the ICC, but I am concerned that the ICC might move slowly and a nation state with universal jurisdiction will be lost when there is an opportunity to detain and apprehend a suspected war criminal. Such a situation will happen in due course. I may be proved wrong, but I am greatly concerned. Extradition is not a quick process.

That argument is wrong—it undermines the ICC's credibility before it has been constructed.

It has been pointed out that Scottish legal traditions are reflected consistently in the International Criminal Court (Scotland) Bill. The most important tradition is the principle that territorial jurisdiction is central to the prosecution of crimes in Scotland. In Scots law, criminal jurisdiction is based on the territorial principle. In the absence of legislation to the contrary, the jurisdiction of the Scottish criminal courts is limited to crimes that are committed in Scotland.

That jurisdiction has been changed in a number of instances that lend argument to the Executive's position. Two statutes that extend jurisdiction of the Scottish courts to offences that are committed outwith Scotland are the Criminal Procedure (Scotland) Act 1995 and the Sex Offenders Act 1997, section 8 of which inserted section 16B into the 1995 act. That level of jurisdiction is contained in the International Criminal Court (Scotland) Bill. Perhaps more relevantly, universal jurisdiction as described by Christine Grahame is taken through the Geneva Conventions Act 1957 and section 134 of the Criminal Justice Act 1988, which provides for the prosecution of the offence of torture committed in the UK or elsewhere by a public official of any nationality. The key point is that in the two latter instances, universal jurisdiction was taken in UK law specifically because it was required by international agreement. That is not the situation in respect of the Rome statute.

Many of Christine Grahame's examples refer to countries with a tradition of universal jurisdiction in their domestic law, which is why it has been carried through to their ratification of the Rome statute. The information is difficult to find, given that many countries have not yet ratified the statute. Switzerland, for example, was mentioned, but it has not ratified it. I understand that Australia and France will not take universal jurisdiction. Many of the 139 countries that have signed the statute have not yet ratified it and some have ratified it without domestic legislation prior to ratification. The situation is complex, but the principle is that countries stick to the principles of their own legal systems.

We are not doing the minimum required by the statute, as Christine Grahame said. Our provisions are perfectly in tune with the principles and philosophy of the treaty, which attempts to build an international approach to dealing with instances where war crimes, for example, cannot be dealt with by domestic courts. Amendments 40 and 41 suggest that we turn our back on that consensus. Not only is such an approach impractical, it risks diverting us from the key business at hand, which is to establish and support the ICC.

There are also practical considerations. If a suspected war criminal with whom there was no Scottish connection were simply on a fleeting visit—shopping in Princes Street perhaps—can it realistically be expected that sufficient information could be gathered against them to meet the time requirements that are an important safeguard in our legal system? It would be much better to arrest and extradite the suspect to a country where there is a connection, or indeed to the ICC itself.

Does the minister accept that, if we had absolute universal jurisdiction and had detained, for example, a German mercenary on Princes Street but were unable to prosecute because of the difficulties of evidence, the ICC would take over at that point? The point is that in those circumstances the person would have been detained and would be in custody.

If extradition were sought against the person, he would similarly be arrested and detained. Christine Grahame's concern that they would immediately hop on the nearest plane and leave would not apply.

There is the real risk that the encouragement of universal jurisdiction as the route for dealing with such issues would undermine the very institution we are seeking to establish. Christine Grahame's comments add some weight to that argument. It is not hard to see that if the ICC investigated an individual and decided not to take action against him but another country with perhaps no connection at all with the crime or the suspect subsequently decided that they would step in and prosecute, the credibility and robustness of the ICC would be undermined.

There are good reasons of principle why we should not take universal jurisdiction, such as our wish to be consistent with our own traditions and the international consensus. There are also practical considerations, such as the difficulty of prosecuting within the stipulated time limits. For those reasons, we remain convinced that we should stick with the extended jurisdiction in the bill and resist the idea of universal jurisdiction.

I invite Christine Grahame to withdraw amendment 40 and not move 41.

I do not seek to undermine the ICC in any way—I fully support its existence. I am concerned about the residence test. Aside from the uncertainty and how the test might be manipulated by suspected criminals—

I want to finish what I was saying. I want to ensure that there is no chance that criminals will escape or that there will be extensive delays in prosecuting criminals—that may occur with the operation of international law. The minister said that the ICC is complementary, but he is aware that the first port of call for prosecution is the domestic court.

I did not intend to say that Christine Grahame wanted deliberately to undermine the ICC. As the bill has progressed, her commitment to its primary purpose has been manifest. My point is that the argument for universal jurisdiction runs the risk of leading inadvertently to the undermining of the credibility of the ICC. I did not intend to imply that she meant deliberately to undermine the ICC.

The question is, that amendment 40 be agreed to. Are we agreed?

No.

There will be a division.

For

Adam, Brian (North-East Scotland) (SNP)
Campbell, Colin (West of Scotland) (SNP)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Ewing, Dr Winnie (Highlands and Islands) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Gibson, Mr Kenneth (Glasgow) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
MacDonald, Ms Margo (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McGugan, Irene (North-East Scotland) (SNP)
McLeod, Fiona (West of Scotland) (SNP)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Neil, Alex (Central Scotland) (SNP)
Reid, Mr George (Mid Scotland and Fife) (SNP)
Robison, Shona (North-East Scotland) (SNP)
Russell, Michael (South of Scotland) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Ullrich, Kay (West of Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)

Against

Aitken, Bill (Glasgow) (Con)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (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)
Davidson, Mr David (North-East Scotland) (Con)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Fergusson, Alex (South of Scotland) (Con)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Gorrie, Donald (Central Scotland) (LD)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (Edinburgh Pentlands) (Lab)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Henry, Hugh (Paisley South) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Johnstone, Alex (North-East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (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)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
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)
Mundell, David (South of Scotland) (Con)
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)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (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)
Tosh, Mr Murray (South of Scotland) (Con)
Wallace, Ben (North-East Scotland) (Con)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)

The result of the division is: For 26, Against 76, Abstentions 0.

Amendment 40 disagreed to.

Section 6—Proceedings against persons becoming resident in the United Kingdom

Amendment 41, in the name of Christine Grahame, has already been debated with amendment 40.

Amendment 41 moved—[Christine Grahame].

The question is, that amendment 41 be agreed to. Are we agreed?

No.

There will be a division.

For

Adam, Brian (North-East Scotland) (SNP)
Campbell, Colin (West of Scotland) (SNP)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Ewing, Dr Winnie (Highlands and Islands) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Gibson, Mr Kenneth (Glasgow) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
MacDonald, Ms Margo (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McGugan, Irene (North-East Scotland) (SNP)
McLeod, Fiona (West of Scotland) (SNP)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Neil, Alex (Central Scotland) (SNP)
Reid, Mr George (Mid Scotland and Fife) (SNP)
Robison, Shona (North-East Scotland) (SNP)
Russell, Michael (South of Scotland) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Ullrich, Kay (West of Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)

Against

Aitken, Bill (Glasgow) (Con)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Davidson, Mr David (North-East Scotland) (Con)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Fergusson, Alex (South of Scotland) (Con)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Gorrie, Donald (Central Scotland) (LD)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (Edinburgh Pentlands) (Lab)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Henry, Hugh (Paisley South) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Johnstone, Alex (North-East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (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)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
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)
Mundell, David (South of Scotland) (Con)
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)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (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)
Tosh, Mr Murray (South of Scotland) (Con)
Wallace, Ben (North-East Scotland) (Con)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)

Abstentions

Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)

The result of the division is: For 26, Against 75, Abstentions 1.

Amendment 41 disagreed to.

Section 11—Provision of assistance to the ICC

Amendment 1 is grouped with amendments 2, 29, 6, 7, 30, 10, 11, 31, 32, 17, 18, 33, 21, 34, 24, 36, 37, 38 and 39.

In lodging amendment 1, we are concerned with the principle that the Lord Advocate's post is one of the great offices of state and that that office is independent of any other person.

Over the centuries, the Lord Advocate has been responsible for our system of criminal prosecution and the investigation of deaths in Scotland. That function was extended in the Proceeds of Crime (Scotland) Act 1995 and the Criminal Law (Consolidation) (Scotland) Act 1995. Under those acts, the investigation of the proceeds of crime and applications for freezing or restraint orders in respect of property liable to forfeiture is in the specific remit of the prosecutor. The International Criminal Court (Scotland) Bill seeks to change that and it represents a whittling away and a diminution of the role of the Lord Advocate.

It is ironic that I should have to defend the Lord Advocate from his colleagues. In response, the Executive takes the view that the functions in part 2, which relates to the provision of assistance to the international criminal court, fulfil the Executive's international obligations. Those functions include directing the chief constable to serve documents; directing the procurator fiscal to apply to the sheriff for a warrant for entry, search and seizure; and directing authorised persons to apply for production orders or warrants in the course of an investigation into the proceeds of crime. The Executive might be correct, but those functions relate to the investigation and prosecution of crime and to the direction of the prosecution authorities in fulfilling those obligations. Therefore, part 2 removes or erodes the independent element of dealing with extremely serious matters involving crimes against humanity. Great as the expertise of the Deputy First Minister might be, it is, I regret, on a different plane altogether from that of the Lord Advocate.

The Lord Advocate and his staff represent the independent element, which is a major factor in Scotland's criminal justice system. Any attempt to erode the Lord Advocate's powers and functions should be strongly resisted.

If we lose the vote on the principle, we will seek to restore the Lord Advocate's legitimate powers and functions at the first available opportunity. I will seek one division on the issue and not 20, as we consider the principle involved to be important.

I move amendment 1.

That was stirring stuff. Lord James Douglas-Hamilton rightly said that the Lord Advocate is independent of other persons. The Scotland Act 1998 provides statutory functions that apply to the Lord Advocate, which are legally enforceable by him. From my understanding of the amendments it strikes me that, as the Deputy Minister for Justice said when the issue was considered at stage 2:

"it would be appropriate to confer new statutory functions on the Lord Advocate only where they relate to his position as head of the systems of criminal prosecution and investigation of deaths in Scotland."—[Official Report, Justice 2 Committee, 26 June 2001; c 305.]

There is a need for political impartiality in domestic cases because otherwise the process could be subject to interference. If the amendments were agreed to, the functions that the bill would confer on the Lord Advocate could conflict with his existing role as head of prosecutions and investigator of deaths. Part 2 of the bill handles civil proceedings, which are outwith the usual responsibility of the Lord Advocate, who handles criminal proceedings. Therefore, there is a solid argument in favour of rejecting the amendments.

Amendment 1 is important and it deals mainly with the separation of powers. It has to be understood that the role of Lord Advocate in Scotland is a special one and that it is possibly unique in the legal roles of prosecutors, certainly throughout Europe. It has to be remembered that the Lord Advocate is not a minister for the interior, which is the position that many jurisdictions have to fulfil, as envisaged in the statute. It is not a question of the Minister for Justice, whoever that might be in the future, having the ability to overrule the Lord Advocate. The Minister for Justice should not be involved in these matters because there is a dilution of the principle of independence.

I cannot understand Tavish Scott's apparent suggestion that there is a degree of conflict in what Lord James Douglas-Hamilton is proposing. Conflict is precisely what we are trying to avoid. We are trying to establish the principle that the Lord Advocate is totally and utterly independent from the Government.

It is possibly a natural consequence of devolution that the role of Lord Advocate has been politicised to some extent. That was inevitable, but definitely unfortunate. We are seeking to ensure that the important role of Lord Advocate retains a degree of independence. That is necessary for it to maintain the degree of respect that it has had historically. Even at this stage, we ask the Minister for Justice to re-examine the provision, which would in no way diminish the powers of the bill. We all hope that the bill will become an act. The amendments would be a step towards upholding the independence of the Scottish prosecution system.

I respect the spirit in which Lord James Douglas-Hamilton has lodged the amendments and in which Bill Aitken has spoken to them. I recognise the historic and important role of the Lord Advocate in the Scottish legal system, not least in the Scottish criminal justice system. In the exercise of my duties as the Minister for Justice I have done my utmost to scrupulously remember the important distinction of the Lord Advocate's role as the independent head of the systems of criminal justice prosecution and investigation of deaths in Scotland. Journalists sometimes cannot understand—no doubt to their frustration—why I will not comment on the reason why cases have not been prosecuted. It is not my responsibility nor should it be.

Against that background and that recognition of the importance of the Lord Advocate, I nevertheless believe that the amendments should be resisted. The subject was debated at stage 2 and the Deputy Minister for Justice said at that time that our view is that the amendments are not consistent with what was intended as regards the conferral of ministerial functions provided for in the Scotland Act 1998. If one considers the scheme of that act, post devolution all statutory functions should be conferred on Scottish ministers collectively, so that legally they can be exercised by any one of them. It is for the First Minister to decide which Scottish minister should exercise a particular function through the allocation of ministerial portfolios and responsibilities. The only exceptions to that are in the case of the First Minister and the Lord Advocate, upon whom statutory functions are conferred that may be legally exercised only by them.

As we observed, in the case of the Lord Advocate those functions are well known. They are the functions that he carried with him when he ceased to be a minister of the Crown in the UK Government and became a minister of the Scottish Executive. Before that occurred, the functions previously performed by the Lord Advocate, other than in relation to criminal prosecution and investigation of deaths in Scotland, were transferred to the Secretary of State for Scotland and thereafter to the Scottish ministers. We believe that it would be appropriate to confer new statutory functions on the Lord Advocate only when they relate to his position as head of the system of criminal prosecution and investigation of deaths in Scotland. Those are functions that he is required to operate independently of any other person. He cannot—nor should he—be directed as to how he exercises those functions.

However, the functions in part 2 of the bill that Lord James Douglas-Hamilton wants to provide as being exclusively carried out by the Lord Advocate do not relate to his position as head of the systems of criminal prosecution and investigation of deaths. Those functions fall into three categories.

First, there are functions that relate directly to fulfilling requests from the international criminal court for assistance. Those include section 13 on the taking and production of evidence; section 14 on further provisions on the taking and production of evidence; section 18 on the provision of records and documents; and section 21 on the verification of material. Those functions relate primarily to the implementation of our international obligations, not to the systems of criminal prosecution in Scotland. It is therefore appropriate that they are conferred upon Scottish ministers collectively.

Secondly, there are functions that relate to the taking of civil proceedings. Those include section 19 on the investigation of proceeds of ICC crime and section 20 on freezing orders in respect of property liable to forfeiture. In addition to being examples of Scottish ministers discharging obligations to provide assistance to the ICC, those functions operate in relation to civil matters. They do not relate to the system of criminal prosecution in Scotland.

I ask the minister to clarify a point. He referred to the requirement to pass on documents to the ICC. In some circumstances, might those documents already be under the control of the Lord Advocate? What action would the minister take in those circumstances?

By passing this legislation and the United Kingdom then ratifying the Rome statute, we will undertake international obligations. We would want to take action to be as fully compliant with those obligations as we can. The point is that those are civil proceedings in sections 19 and 20. They do not relate to the Lord Advocate's role as part of the criminal prosecution system in Scotland.

Surely it is the case that what we have in part 2 is not a civil situation; what we have are preliminary activities that are the prelude to criminal prosecution. Is it not the case that to try to preserve a façade of ministerial involvement is merely to place a fig leaf over what will—and should—remain the fundamental and primary responsibility of the Lord Advocate?

I indicated that there are three categories. The first one, to which I have referred, is on fulfilling requests that come from the ICC. By their nature, those requests would be directed towards Scottish ministers. Those international obligations are appropriately discharged by Scottish ministers rather than by placing a specific duty on the Lord Advocate. Likewise, functions related to civil proceedings should be discharged by Scottish ministers.

The third category of functions include those in section 15 that direct the chief constable to serve a document or those in section 16 that direct the procurator fiscal to apply for a warrant.

I do not like to challenge amendments on the basis of technicalities or drafting. The points that I have argued relate to substance. However, if Lord James Douglas-Hamilton's amendment 31 to section 16 was to be accepted, a curious position would arise in which a different Scottish minister would have to make a request to the Lord Advocate. That is interesting because the concept of collective responsibility, which binds the Lord Advocate, would mean that he was being requested to do something that, by definition, he had already agreed to do. Where could he exercise a separate, independent judgment on those matters? That is a technical point, but it illustrates that those functions are appropriately conferred on Scottish ministers.

I accept that the directions to the chief constable or the procurator fiscal are similar to the functions that the Lord Advocate would carry out when dealing with prosecutions in Scotland. It is more than likely that—without in any way binding the First Minister—the First Minister would take that into account when deciding which minister would exercise these functions. However, it is far better to leave the position as being that, quite properly, in fulfilling our international obligations those functions are exercised by Scottish ministers, rather than putting it in the bill that the Lord Advocate would exercise them. I ask the chamber to reject Lord James Douglas-Hamilton's amendment.

I have about 40 seconds to reply.

I say to the Deputy First Minister that the functions concerned are ancillary and related to criminal prosecution. Those have been the responsibility of the Lord Advocate in the past and, as far as I know, there has never been any problem with his discharge of those duties. We believe that this is a significant diminution of his role, which is unnecessary and regrettable. We wish to press amendment 1 to a vote.

The question is, that amendment 1 be agreed to. Are we agreed?

No.

There will be a two-minute division.

For

Adam, Brian (North-East Scotland) (SNP)
Aitken, Bill (Glasgow) (Con)
Campbell, Colin (West of Scotland) (SNP)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Davidson, Mr David (North-East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Elder, Dorothy-Grace (Glasgow) (SNP)
Ewing, Dr Winnie (Highlands and Islands) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (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)
Goldie, Miss Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (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)
MacDonald, Ms Margo (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McGugan, Irene (North-East Scotland) (SNP)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLeod, Fiona (West of Scotland) (SNP)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Mundell, David (South of Scotland) (Con)
Neil, Alex (Central Scotland) (SNP)
Reid, Mr George (Mid Scotland and Fife) (SNP)
Robison, Shona (North-East Scotland) (SNP)
Russell, Michael (South of Scotland) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Sturgeon, Nicola (Glasgow) (SNP)
Tosh, Mr Murray (South of Scotland) (Con)
Ullrich, Kay (West of Scotland) (SNP)
Wallace, Ben (North-East Scotland) (Con)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)

Against

Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
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)
Eadie, Helen (Dunfermline East) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
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)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (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)
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)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (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)
Wilson, Allan (Cunninghame North) (Lab)

Abstentions

Brown, Robert (Glasgow) (LD)
Gorrie, Donald (Central Scotland) (LD)

The result of the division is: For 43, Against 58, Abstentions 2.

Amendment 1 disagreed to.

Section 12—Questioning

Amendment 2 not moved.

I call Iain Gray to speak to and move amendment 43, in the name of Jim Wallace, which is grouped with amendment 47.

Members of the Justice 2 Committee will recall that, during our stage 2 discussion of the bill on 26 June, I agreed to reconsider the provisions in section 12(4). Having reflected on the matter, I am now persuaded that the most suitable course of action—and that which is most consistent with domestic procedure—is to remove the provisions in section 12(4) that refer to consent being given by an appropriate person to questioning on behalf of another person. The effect of amendment 43 is that only the person to be questioned can give consent. I have also given consideration to the amendment 47, in the name of Christine Grahame. Although I sympathise with its intentions, I am not inclined to agree in this instance that it represents the best way forward.

Our objectives are twofold: to fulfil our obligations to provide assistance to the ICC; and to reflect as far as is practicable similar domestic arrangements, where such arrangements exist. In that respect, what amendment 43 proposes does not differ significantly from what takes place daily in Scotland. For example, any suspect may be advised that they are to be questioned, but that they are not bound to answer. Furthermore, if it is thought that questioning by the police has been carried out in an unfair manner, it is highly likely that it will not be admissible in court in evidence thereafter.

The same will apply to questioning undertaken at the behest of the ICC and will be covered by its regulations on admissibility. For example, article 69 of the Rome statute states:

"Evidence obtained by means of a violation of this Statute or internationally recognised human rights shall not be admissible".

Attempting to define exactly the circumstances in which a person can give consent to questioning not only is unnecessary for the reasons I have just outlined, but might be unworkable in practice. The High Court has consistently declined to set out exactly when a person is considered incapable. Each case must be considered on its merits. Any attempt to provide a fixed definition to be applied in all circumstances could have the unintentional effect of obstructing our obligation to provide assistance to the ICC.

It is worth pointing out what usually happens in Scotland—under this bill or any other similar domestic circumstances—if the police wish to question an individual who is thought, for example, to have a mental disorder. The relevant details are to be found in the current Scottish appropriate adult scheme, which was introduced in June 1998 by the then Scottish Office. That code of practice, which is based on a multi-agency, non-statutory model, gives comprehensive guidance on such matters, and I believe that it accounts for the legitimate concerns that were raised by the Justice 2 Committee during its stage 2 consideration.

For instance, the guidance specifies that if the officer in charge of the investigation detects signs of mental disorder in the interviewee, he or she must arrange for a medical examination to establish whether an interview can take place. If the interview does proceed, an appropriate adult, as defined by the code, is to be present to ensure, among other things, that the interviewee understands the questions being put to him or her and the implications of their answers.

As a result, I am satisfied that if members accept amendment 43, section 12 will allow us both to fulfil our obligations under the Rome statute and to retain consistency with current domestic procedure and—given the key issue in this regard—that of admissibility of evidence before the competent court.

I move amendment 43.

I thank the minister for his comments. I am greatly satisfied by what he has said this morning. It shows the value of lodging what might be called "testing amendments" at stage 2. As the minister will recall, he said at the time:

"The current wording of section 12 achieves that aim"—

the protection of capacity—

"and also builds in important safeguards."—[Official Report, Justice 2 Committee, 26 June 2001; c 301.]

I am grateful to the minister for reconsidering the position and deciding that the earlier provisions were flawed. Given his comments, I believe that we should support amendment 43.

I will be very brief. I thank the minister for responding to the draft amendment on the same point that I lodged at a much earlier stage. It is very refreshing to see that he has recognised that the matter required attention. It would be wrong for consent to be given where a person has a mental incapacity and might not be able to give such consent themselves.

I call the minister to wind up.

I have nothing further to add.

Amendment 43 agreed to.

Amendment 47 not moved.

We come to amendment 3, in the name of Lord James Douglas-Hamilton.

I will speak briefly to amendment 3. If I may say so, I am slightly astonished that an Executive in such a modern Parliament still does not support the idea of digital signatures. However, I accept that the minister, in his wisdom, might well support the principle and might wish to deal with the matter by comprehensive legislation covering other circumstances in due course. I hope that, in the meantime, he will accept communications with digital signatures, as they might become commonplace in a relatively short period of time.

I move amendment 3.

We are indeed a modern Executive. The matter is generally under consideration for possible inclusion in future legislation. However, some aspects about the most suitable way to make the required provision have still to be worked out. As a result, it would not be desirable to use the bill as a vehicle to pre-empt what may or may not come along after due consideration. Any legislation that might be introduced on this issue is likely to be all-embracing and cover all appropriate situations where signatures are required by statute and common law. Although I recognise Lord James's modernity, I ask him to withdraw amendment 3.

Although I am grateful for the minister's reply, he should at least send a signal that this Parliament is as modern as any other Parliament. For that reason, I will press the amendment to a vote.

The question is, that amendment 3 be agreed to. Are members agreed?

No.

There will be a division.

For

Adam, Brian (North-East Scotland) (SNP)
Aitken, Bill (Glasgow) (Con)
Campbell, Colin (West of Scotland) (SNP)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Davidson, Mr David (North-East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Elder, Dorothy-Grace (Glasgow) (SNP)
Ewing, Dr Winnie (Highlands and Islands) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Mr Kenneth (Glasgow) (SNP)
Goldie, Miss Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (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)
MacDonald, Ms Margo (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McGugan, Irene (North-East Scotland) (SNP)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLeod, Fiona (West of Scotland) (SNP)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Mundell, David (South of Scotland) (Con)
Neil, Alex (Central Scotland) (SNP)
Robison, Shona (North-East Scotland) (SNP)
Russell, Michael (South of Scotland) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Sturgeon, Nicola (Glasgow) (SNP)
Tosh, Mr Murray (South of Scotland) (Con)
Ullrich, Kay (West of Scotland) (SNP)
Wallace, Ben (North-East Scotland) (Con)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)

Against

Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (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)
Eadie, Helen (Dunfermline East) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gillon, Karen (Clydesdale) (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)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (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)
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)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (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)
Wilson, Allan (Cunninghame North) (Lab)

The result of the division is: For 41, Against 60, Abstentions 0.

Amendment 3 disagreed to.

Section 13—Taking or production of evidence

Amendment 29 not moved.

Section 14—Taking or production of evidence: further provisions

Amendment 42 moved—[Christine Grahame].

Amendment 42 concerns another matter to which I undertook to give further consideration following the stage 2 debate. Having done so, I believe that the amendment would maintain consistency with the current procedures in domestic law. We are therefore happy to accept amendment 42.

We also support amendment 42, as the issue that it deals with is akin to the taking of a precognition. It would be inappropriate to have cross-examination of the kind that is envisaged in the line concerned. Christine Grahame is to be congratulated on having spotted a major defect in the bill and corrected it.

Amendment 42 agreed to.

Amendments 6 and 7 not moved.

Section 15—Service of process

Amendments 30, 10 and 11 not moved.

Section 16—Entry, search and seizure

Amendment 31 not moved.

Section 18—Provision of records and documents

Amendments 32, 17 and 18 not moved.

Section 19—Investigation of proceeds of ICC crime

Amendments 33 and 21 not moved.

Section 20—Freezing orders in respect of property liable to forfeiture

Amendment 34 not moved.

Section 21—Verification of material

Amendment 24 not moved.

Section 24—Limited disapplication of certain provisions relating to sentences

Amendment 44, in the name of the Minister for Justice, is grouped on its own.

Amendment 44 is a technical amendment. The purpose of section 24 is to disapply any domestic provisions that could affect the sentence calculation of ICC prisoners who are accepted to serve their sentences in Scotland. The ICC alone will determine the length of sentences of prisoners whom it convicts. As chapter 1 of part III of the Crime and Punishment (Scotland) Act 1997 has been repealed, it seems appropriate to remove reference to it from the bill. That is what the amendment does.

I move amendment 44.

The minister is correct to approach the matter in such a manner. The international criminal court will be the sole arbiter of its sentences. Domestic legislation that could relate, for example, to early release will, therefore, be disapplied. Will the minister confirm that we are obliged to accept that under the Rome statute?

That is my understanding. Someone who served an ICC-imposed sentence in Scotland would be likely to face deportation on release from that sentence. Indeed, it is difficult to foresee circumstances in which they would not.

Amendment 44 agreed to.

After section 24

Amendment 45, in the name of the Minister for Justice, is grouped on its own.

Like amendment 44, amendment 45 is a technical amendment. It is necessary to ensure that when an ICC prisoner is finally released by order of the ICC, he or she will not remain subject to any transfer directions and restriction directions that may have been ordered under the Mental Health (Scotland) Act 1984.

I move amendment 45.

We support the amendment. It ensures that the transfer restrictions relating to a person with mental health problems would be removed at the end of a sentence. At the end of their sentence, the person will almost certainly be deported. Persons who are resident in Scotland will be tried under Scots law. If the person was not resident in Scotland, he or she might have been tried by the international criminal court, but could have served the sentence in Scotland. This is a welcome amendment.

Amendment 45 agreed to.

Schedule 4

Taking of fingerprints etc

Amendments 36 to 39 not moved.