Police, Public Order and Criminal Justice (Scotland) Bill: Stage 3
Resumed debate.
Before resuming proceedings on group 12, I inform the chamber that, given the number of members who wish to speak to the amendments, I propose under rule 9.4.8A(c) of the standing orders to extend the time limit for this section of the debate on group 12 by 20 minutes, which means that the debate must end no later than three hours and 15 minutes after stage 3 proceedings commenced. Thereafter, I will be minded at an appropriate point, of which I shall advise members, to accept a motion from any member under rule 9.8.5A of the standing orders to extend the final deadline set out in the timetabling motion by 10 minutes. If that motion is agreed to, a minimum of 20 minutes will be available to debate groups 13 to 19 and the debate on the motion to pass the bill is likely to be reduced from one hour to 50 minutes.
I will advise on any restrictions to speaking times when members' requests to speak appear on my screen.
Paul Martin and, to some extent, Bill Butler, inadvertently presented us with a bit of a dilemma. We have debated a number of important principles. The first was child and personal protection; the second was the presumption of innocence; and the third was the basic argument about civil liberties and how they affect the investigation of crime.
It is decidedly unfortunate, to say the least, that the matter has been dealt with in this manner. Had the amendments been considered by the appropriate committee, there would have been much more time for measured and considered debate. Evidence could have been introduced that might have persuaded people one way or the other. At the 11th hour and 55th minute, however, we are presented with a bit of a dog's breakfast.
To be fair to Paul Martin, he brought his substantive amendment to the committee at stage 2 when there was a full discussion. I took from what he said this morning that the amendments that we are debating today come from further deliberation on and consideration of what was said at stage 2. Bill Aitken seems to suggest that we add another stage to the parliamentary procedure.
I will clarify a point raised by Bill Aitken and others this morning about application to the sheriff. Subsection (5) of the proposed new section that amendment 207 would insert in the Criminal Procedure (Scotland) Act 1995 states that the process is one of "summary application", which is an existing form of civil court procedure set out in the summary application rules that apply to a number of civil court procedures. The rules set out in detail the process of application and include provisions for notification and participation of all parties. The person whose DNA is under consideration would therefore have the opportunity to make their case.
I will give you another three minutes, Mr Aitken.
Thank you, Presiding Officer.
The minister made a helpful intervention and I take the point that Paul Martin is having another go at something that failed at stage 2. It would still have been greatly preferable had the matter been subject to more measured consideration.
I will go through the amendments, starting with Bill Butler's amendment 200, which proposes that persons who are subject to risk of sexual harm orders should also be subject to the provisions that he proposes today.
To reiterate something that I said when we debated the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, persons who are subject to an RSHO have not been convicted by a criminal court, so they should be entitled, like everyone else, to a presumption of innocence, albeit to a limited extent. In fact, amendment 200 would effectively reduce the level of protection that such persons are due through the presumption of innocence, which is not acceptable.
Will the member take an intervention?
I am short of time, so I ask Mr Butler to make it quick.
I thank Bill Aitken for taking the intervention. I do not follow what his concern is with regard to amendment 200. The amendment's provisions would allow DNA samples, fingerprints and any information deriving from them to be destroyed once the individual concerned was no longer subject to an RSHO. The principle was conceded in the 2005 act.
I am still not particularly happy, but I will move on to Paul Martin's amendments on the implications for children.
As has been rehearsed in the chamber often, the way in which we deal with youth criminality is somewhat different from how we deal with adult criminality. Those who are convicted—in inverted commas—by the children's panel are not subject to a criminal conviction. In that sense, I doubt whether Paul Martin's proposals are compliant with ECHR recommendations and strictures. If a youngster is charged with a serious sexual offence such as rape, the offence would have to be indicted in the High Court; if the offence was of lewd and libidinous behaviour, it would have to go to a sheriff and jury court, which is appropriate—we have no problem with that. The procurator fiscal and the reporter must decide where such cases go. However, no such cases should go to a children's hearing until after conviction, when the presiding judge would require to take advice from the children's panel as to the eventual disposal of the case. Frankly, what Paul Martin proposes would be a serious departure from the normal judicial process; the circumstances would arise only when there was such a mis-marking of the papers that the case did not go before a solemn court.
Can you be brief, Mr Aitken?
Paul Martin's amendment 206 also refers to people who have been acquitted by a court. If a person has been acquitted, they are innocent under the law. What he proposes is that, although they are innocent, the same strictures should apply to them as would apply in the event of conviction. That is certainly not acceptable.
This is a complex set of amendments and we have all tried our best to understand the full implications of them. It is passing strange that amendment 207 is the only one that we are contemplating supporting that proposes no process by which an application would be made to retain DNA. Amendments 204 and 205 relate to youngsters who accept that they committed a crime—amendment 205 relates to circumstances in which the sheriff provides a determination of the facts that leads to the view that the child supported a crime.
Every amendment in this group makes provision for a way of going forward, but amendment 207 makes no provision for a sheriff to intervene, except in narrow circumstances. After three years, if—and only if—the chief constable seeks an extension to the three-year limit, there would be a process of involving the sheriff to decide whether the retention period could be extended for two more years.
Of course, amendment 207 covers sexual and violent offences, but it does not need to cover sexual offences at all. If someone appears before a court and ends up without a conviction, that is precisely the circumstance in which it would be appropriate and desirable, on public policy and fairness grounds, for an application to be made to the court for an RSHO. The defendant would be represented at the hearing and there would be an opportunity for their DNA to be retained.
No similar order applies in relation to violent offences, and to that limited extent discussion of amendment 207 is justified. However, the trouble is that amendment 207 provides the wrong answer to the problem. If we think that, for public safety reasons, the DNA of non-convicted violent offenders should be kept on record, we should introduce an order that is analogous to the RSHO and provide for a hearing at which it could be argued that, notwithstanding the fact that the person had been found not guilty—
I am curious about the member's reference to "non-convicted violent offenders". Will he explain what he means?
I withdraw the remark, which was a slip of the tongue. I thank the member for drawing the matter to my attention. I should have said, "non-convicted accused". I am glad that people are paying attention.
The key point is that amendment 207 would provide for the retention of people's DNA without there being any court involvement.
There are 24 Paul Martins in Glasgow. What if the wrong one was lifted? When he appeared in court, the first witness would say that the accused was the wrong Paul Martin, but under amendment 207 the wrong Paul Martin's DNA would be retained. The good news is that there appears to be only one Jeremy Purvis in Galashiels, so at least he will not be subject to the same risk.
It seems that Paul Martin's central argument—[Interruption.] I will continue when members are ready.
Order.
Paul Martin suggests that the retention of DNA samples from millions of people will help to solve crimes and enable the police to eliminate people from inquiries and home in on suspects far more quickly and effectively. I am sure that all members understand his motivation for lodging the amendments in the group.
However, Paul Martin was present when the Justice 2 Committee heard evidence that the outcome that he seeks is unlikely to be achieved by the approach that he proposes. When the committee took evidence on the impact of adding to the national database substantial numbers of innocent people—who might not have been charged with a crime, let alone convicted of one—we were told that there is no basis for the expectation that crimes would suddenly be solved as a consequence.
Paul Martin bases much of his case on the Home Office report, "DNA Expansion Programme 2000-2005: Reporting achievement". However, the report indicates that in 2004-05 the number of crimes that were detected using the DNA database fell, despite the fact that 124,347 people who had been arrested but not charged or convicted had been added to the database in the previous year.
The success of the database in crime detection is determined largely by the number of DNA profiles that are collected at crime scenes and not by the number of profiles that are taken from individuals at police stations. That is a fact. It is also a fact that the likelihood of matching a DNA profile from a crime scene to a profile taken from an individual has not significantly increased during the past three years, despite an increase in profiles on the database from 2 million to 3 million during that period. It is also a fact that only 0.35 per cent of crimes were detected using DNA profiles in 2004-05—the same percentage as in the previous three years. The facts do not back up Paul Martin's case because, as he knows, the vast majority of crimes are committed by repeat offenders, whose DNA is already in the system. DNA cannot be easily detected at most crime scenes.
In his remarks, Paul Martin appeared to suggest that he will not move his amendments, with the exception of amendment 207. However, amendment 207 is based on the same arguments as his other amendments in the group and represents the thin end of the wedge. The approach in amendment 207 suggests that it is okay for people who are charged with but not convicted of sexual offences to be added to a permanent database, but it is not okay for other people to be added to the database. That is a dangerous road to go down.
Paul Martin's proposals to add innocent people to a national database would have serious and dangerous consequences. In effect, samples could be added to the database on the whim of a police constable. At present, one in three black men is on the existing database. Paul Martin refuses to accept that profiles should be held for only a specific period, as happens at present. During stage 2, the minister told the Justice 2 Committee that the Executive's position was that voluntary DNA sampling would continue, that people could withdraw their consent at any time and that the samples would be destroyed if a person was not convicted. I want to know whether the minister stands by that view.
In evidence to the Justice 2 Committee, it was suggested that, rather than the Scottish Parliament following the example of England and Wales, England and Wales should follow Scotland's example and have a voluntary system under which people can withdraw consent at any stage and samples are destroyed if a person is not convicted. Dr Helen Wallace of GeneWatch UK has said:
"The lesson from England and Wales is that blanket permanent retention of DNA from innocent people does little to solve crime and instead reduces public trust in police use of DNA."
I will oppose any amendment that Paul Martin moves during the debate.
We should be cautious about changing the law to allow the retention of DNA samples as a matter of principle. The argument about whether we should make the change rests on whether the evidence suggests that, by doing so, we will be able to tackle serious crime better. Colin Fox said that there is no evidence for that, but I have seen recent statistics from England and Wales that show that changes similar to those that are proposed here have affected the crime clear-up rate to a great extent. Those who promote the changes must persuade members that they will make a difference. That is how I will decide how to vote on the issue. From what I have seen so far, I am predisposed to supporting the move to a degree.
In Glasgow recently, a young officer asked for a voluntary swab in a minor case of breach of the peace, which led to the discovery that the offender was also the suspect in a murder case. Evidence exists of a connection between minor offences and more serious ones. However, I seek assurances on the issue. First, if we expand the DNA database to include suspects or those who are involved in criminal proceedings, no inference whatever should ever be drawn from the existence of someone's DNA on the database. I need a cast-iron assurance on that. Secondly, we must also ensure that there are appropriate safeguards on the storage of DNA. It is important that we get an assurance from ministers on that if we are to proceed with the changes.
I support Bill Butler's amendment 208. The Parliament debated risk of sexual harm orders when we considered the Protection of Children and Prevention of Sexual Offences (Scotland) Bill—Bill Aitken mentioned that earlier. The risk of sexual harm order is a far-reaching provision. It has always been my view that, in agreeing to it, we were at the outer edge of the Human Rights Act 1998, although I believe that the measure is proportionate. I draw the Parliament's attention to the issue because, if we are to go that bit further, as amendment 208 proposes, we need to know that we are already on the edge. I whole-heartedly supported risk of sexual harm orders, but there may be cases in which a person who is subject to such an order has not been convicted in a court of law. Under Bill Butler's amendment 208, a person who is subject to a risk of sexual harm order and who has not been tried in a court of law could have their DNA sample retained. I have thought about that and, as I said, I believe that, although the measure is proportionate, we are at the outer edges of the Human Rights Act 1998.
We should be cautious about making changes—the case has to be made for any change. It is also important to take stock of where we are and how we do things. Amendment 208 may be within the confines that are imposed by the Human Rights Act 1998, but we should know that, if we agree to it, we will probably reach our outer limits in that respect.
I simply point out to Bill Aitken that a neutral Scottish Executive consultation paper asked all these questions last year. With regard to Colin Fox's point, it is interesting to note that GeneWatch UK does not oppose amendment 207, although it opposes other amendments in Paul Martin's name, on the basis that
"The amendment recognises that there may be some carefully justified exceptions where the police could benefit from keeping some DNA profiles longer on the Database."
We can make one of two choices today: we can go down the route of the UK Government in England and Wales, in which the DNA and fingerprints of anyone arrested or detained on suspicion of having committed an offence can be kept by the police for ever, regardless of whether they were prosecuted or convicted; or we can take a proportionate, limited and targeted approach that does not reduce civil liberties.
There are a small number of reasons why the arguments used to support amendment 206 are flawed. First, Paul Martin wants to bring us into line with England and Wales. In its evidence to the Justice 2 Committee, the Human Genetics Commission asked that England and Wales should be brought into line with Scotland. The DNA database has expanded hugely in recent years, from 2 million in 2002-03 to 3 million in 2004-05, but GeneWatch UK told us that only 0.35 per cent of crimes were detected by DNA evidence. Detections have not increased by a third in the way in which database entries have.
Will the member give way?
I would like to give way, but time is limited. I appreciate the sincerity with which Paul Martin has debated this issue, both in committee and in the chamber.
Cl
aims about crimes being solved have to be viewed carefully. Many members have suggested that crimes have been solved, when in fact there has merely been a match on the database, not a prosecution. Furthermore, the Home Office has estimated that only 49 per cent of DNA matches lead to a detection and that only half of detections lead to a conviction. However, we do not and cannot know how many convictions have come about purely as a result of DNA evidence.
The Home Office has not been proportionate, because the database can be used for research purposes. As Colin Fox said, almost a third of all black men in England and Wales have been entered on the database. However, we can move forward proportionately, through the limited power for the police to retain the profiles and samples only of those prosecuted for a violent or sexual offence, and then only for three years, after which those profiles and samples must be deleted or there must be an application to a sheriff for an extension. Why three years? In relation to reoffending, we know that the proclivity is to do so within three years. The intelligence officer in the police division would retain the case files of an acquitted person and information about the offence, not so that they can be prosecuted again, but because the information is useful for police purposes. That is existing practice. On acquittal of offenders such as those outlined in amendment 207, the police will treat the case as an open case and therefore will retain the information.
Parliament should reject amendments 204 to 206 but accept amendment 207. The main reason why the SNP seems to be opposed to amendment 207 is that there is no automatic application to a sheriff. I ask the SNP to consider that, in some cases of the type that the amendment refers to, the police already automatically retain the information as intelligence under the authority of an intelligence officer in a division. Under amendment 207, an appeal to the sheriff principal will be possible.
On ECHR issues, the House of Lords judged that the English and Welsh system was proportionate. However, that judgment is being appealed because of the potential misuse—or use—of the database for research purposes.
Amendment 207 is targeted, proportionate and does not reduce civil liberties. Ultimately, it allows the correct use of DNA, which can be a valuable tool in protecting our communities.
A basic tenet of Scots law is that someone is presumed innocent unless proven guilty. I am afraid that keeping the DNA of a person who is found not guilty is a total contradiction of those fundamental beliefs.
Why should some innocent people have their civil liberties and human rights eroded when the majority have theirs protected? This move would be compromise par excellence—it does nothing other than make a mess of understanding innocence and guilt. There is a clear division: if we offer protection, we have to extend it to all innocent people or to no one at all.
Some of the amendments that we are discussing have been past the Justice 2 Committee in one form or another, and they did not receive support for a variety of reasons. One or two members might have sat on the fence because they felt that they did not have enough detail, and I do not argue with the position that they took.
Bill Butler's amendments would allow DNA to be taken from individuals who are subject to a risk of sexual harm order. Persons subject to such an order are not convicted criminals because it is a civil order. If the facility outlined in the amendments was made available, it might discourage the prosecution of offenders. Additionally, if someone presents a danger to the public, surely the Crown has a duty to prosecute them and lock them away if they are found guilty, rather than put them under a civil order. It almost sounds as if we want a second bite, should we be unable to get the evidence to put away someone who we believe is guilty. That raises questions about the way in which prosecution is handled.
Paul Martin's amendments 204 and 205 worry me because they seem to assume that children's hearings are a court of law. If a youngster is involved in a particular activity, it might not be their fault; they might be the innocent victim of something that has happened to them at home, for example. That is a flaw in the amendments. If someone who is under the age of 16 commits a serious sexual offence, they can be prosecuted in the adult courts. If that happened and they were found guilty, it would be fair enough to store their DNA.
On amendment 207, there is another question about the burden of proof. Why should the police keep on record for three years the DNA of someone who has been proved not guilty of an offence? That is what the court system is about and we have to have confidence that the court system produces the correct results. There is a risk that people who want to volunteer their DNA will be frightened to come forward in case there is an accident with their DNA. For example, someone might happen to go through a particular building at the wrong time and leave fingerprints at a crime scene. It would be like the paperboy delivering papers with gloves on in case they touch someone's door handle—
One minute.
We have to eliminate uncertainty and get confidence in the system. We have to have safeguards that protect liberty and individuals' rights.
Paul Martin has said on television and in the committee that everyone should be on the database. Therefore, I do not understand why he is going for the compromise that is evident in his amendments. Either he believes in what he says or he does not.
Will the member give way on that point?
I do not think that I can. Presiding Officer, I will happily let Mr Martin in if he responds to that point.
I cannot give you any more time, Mr Davidson.
In that case, I think that I have said enough.
We are very concerned and are still waiting for clarity, particularly from the minister. It has been helpful for the minister to come back to the issue at stage 3, but I am not swayed by the arguments on the amendments.
When we approach this group of amendments, we have to consider them all individually because there is a wide range of options before us. There are also a number of basic questions that have to be answered before we decide whether to support the amendments or not.
I turn to Bill Butler's amendments on retaining the DNA of people who are subject to risk of sexual harm orders. We have to ask some questions. Has there been a threat? If there was no threat, no risk of sexual harm order would have been put in place. Has the process been gone through? Yes. Are there checks and balances in the system? Yes. Are civil liberties protected? Yes—they are protected by the process. What is the purpose of the amendments? They seek to close a loophole. Once those questions have been asked and answered, it is clear that we should support the amendments. I congratulate Bill Butler on seeking to close that loophole through lodging his amendments. We will support them.
I move on to Paul Martin's amendments and start with amendments 204 and 205. The same questions have to be asked about them. If a child or person under the age of 18 is found guilty of an offence that would, had the offender been 18 or over, have resulted in retention of the offender's DNA, should that DNA be destroyed or not retained just because the offender is under 18? The answer is that it should not. Has a threat been identified? Yes. Has a process been gone through? Yes. Amendments 204 and 205 would provide a three-step process, which would involve the children's panel, the principal reporter, the chief constable of the area in which the offence is supposed to have taken place and a sheriff. It seems to me that the amendments would provide a legitimate process to establish that there is a threat.
In the case of amendment 205, the child offender has put up his hands, admitted his guilt and accepted the grounds of referral. Frankly, if the offender accepts the grounds of referral and it is clear that due process has been gone through, it is equally right that we should close the loophole so that the DNA of under-18s who have been involved in such activity will be retained because they are a threat. It is entirely reasonable to do that.
Amendment 206, however, is a completely different type of amendment. We should ask the same questions about it as we asked about the previous amendments. Has a threat been identified? No. The amendment would result in retention of DNA samples of everyone regardless of their guilt or otherwise. Does the amendment provide a process? No—retention would apply to everyone. Does it provide checks and balances? No, it does not. Would civil liberties be protected? No they would not; the DNA of everyone who was arrested for an imprisonable offence would be retained, which is not acceptable.
The purpose of amendment 206 is not to close a loophole but to move us down the road of having a DNA database of everybody irrespective of their guilt or otherwise. That is an unacceptable move. Throughout history, every totalitarian state and police state has said, "If you have nothing to hide, you have nothing to fear."
Will the member give way?
Sorry—I have less than a minute.
I do not believe that that is acceptable in a free and democratic country such as Scotland.
Much the same arguments apply to amendment 207. Does the person pose a threat? No. The person has been found not guilty and has been cleared of the offence, or the case has collapsed. If the case has collapsed and there is reason to believe that the person was involved in such a crime, people could apply for a risk of sexual harm order. If such risk is established, the person's DNA can be retained; otherwise, the person should go free and there is no reason to retain their DNA. Does amendment 207 provide checks and balances? No. There would be no right of appeal, and the process would be automatic. As soon as the process had started, the person's DNA would be retained irrespective of the outcome of the case, even if—as Stewart Stevenson pointed out—the wrong Paul Martin was standing in the dock.
The purpose of amendment 207 is to take us down the road towards retaining every DNA sample. Paul Martin said so this morning and he said so in press interviews this week. That is its purpose, but there is no logic to it. The amendment is unacceptable. Also, if we agree that people's DNA should be retained if they are a risk, it makes no sense to retain it for only three years. Why would we retain the DNA for only three years if the person has been identified as a risk to society? That makes no sense.
If the Liberal Democrats support amendments 206 and 207—it is clear that they will—they should change their name before someone sues them under the Trade Descriptions Act 1968. They are certainly not a liberal party if they support such illiberal views today.
And keeping the DNA of kids for life is?
Order.
I am pleased to be able to contribute to today's debate. I support the amendments in the name of the minister and Bill Butler. However, I will confine my limited time to speaking to amendment 207 in the name of Paul Martin, which seems to have caused a bit of controversy today.
As many members know, I convene the cross-party group for survivors of childhood sexual abuse. I say to David Davidson that, having discussed the retention of DNA, the group does not believe that the principle of being innocent until proven guilty would be jeopardised. The retention of DNA samples and profiles relates more to the gathering of intelligence and the task of solving crimes.
I clarify that 198,000 DNA profiles would previously have been removed. From among those profiles, there have been 88 murders of innocent members of the public, 45 attempted murders of innocent members of the public and 116 rapes of innocent members of the public.
As I said, we believe that the retention of DNA is about deterring and solving crime. My cross-party group is in favour of the protection of innocent people, but we really need to look at the balance on this issue.
In the interests of ensuring some consistency and of preventing offenders from escaping notice, there must be similar powers on both sides of the border. There is considerable disquiet about the low level of convictions for sexual offences, especially in cases of historic childhood sexual abuse. The proposed measures could improve clarity in such cases.
As the minister and Paul Martin have said, the House of Lords has concluded that the proposed measures would not contravene the European convention on human rights. They would be of advantage to the police and to those who are already on the sex offenders register, in that time would not be wasted on calling in all known past offenders for questioning when a sexual crime was committed. The measures could avoid time wasting and unnecessary harassment for all concerned.
There is evidence to support the case for early intervention, as the cross-party group in which I am involved has heard on many occasions, particularly in relation to sexual offences. That evidence shows that serious sexual offending can be prevented with support and counselling, which could stop behaviour escalating to the most serious sexual offences. We must take all the steps that we can to prevent such behaviour. I ask Parliament to consider very seriously its decision on amendment 207, which is in the name of Paul Martin and which I believe—with the safeguards that Paul has outlined and that the minister has clarified for us—is sensible, balanced and proportionate, and which I think will help to protect the innocent.
I will focus on amendments 206 and 207. For the benefit of Stewart Maxwell, I point out that the Liberal Democrats are against keeping DNA samples indefinitely against the will of people who have been found innocent or whose case has not come to trial. A person is either innocent or not. We cannot have a new category of law for people whom we do not like the look of and decide that, even if their peers on a jury acquit them of any crime, we can keep their DNA for all time. That is simply unacceptable in a modern liberal society.
Labour MSPs such as Paul Martin and Marilyn Livingstone clearly have no scruples about including law-abiding people on the police database. If the Labour Party wants to have a major database of our citizens' DNA, let its members say so, instead of trying to create one by the back door. Thank goodness the Labour Party's writ in Scotland does not run unfettered, and that the draconian and authoritarian measures that have been implemented in England—which amendment 206 would make the rule in Scotland—are not being implemented here. In marked contrast to the draconian approach that has been adopted by the Labour Party in England, here in Scotland, DNA will be retained only for a limited time, having been taken from people against whom the procurator fiscal has decided, on the basis of the evidence, to take proceedings for sexual and violent offences.
Will the member take an intervention?
I do not have time.
Give an example.
Order.
The fact that amendment 206, like amendment 207, is in the name of Paul Martin is somewhat bizarre. I would like to think that reason has taken hold of Paul, but I somehow do not think so. If it was left to Paul Martin and his Labour Party colleagues, there is no doubt that we would not be debating amendment 207, but arguing about against yet another authoritarian measure. Thank goodness for coalition politics in Scotland and for the fact that such a measure will not be supported by MSPs today.
I have heard that the Labour Party is likely to return to such a proposal in its manifesto for next year's elections. I sincerely hope so. If it does, I believe that the people of Scotland will reject it, as I believe Parliament will when amendment 206 is put to the vote later today. In my view, amendment 207 is a balanced step forward in the fight against sexual and violent crime and in the fight to protect our liberties, including the liberty of the innocent citizen to be free from interference by the state. Labour Party MSPs such as Paul Martin have shown us that we must ever be vigilant against an overpowerful state—against an overpowerful Government interfering in the affairs of law-abiding people.
If I am lucky enough to be re-elected by the voters of West Aberdeenshire and Kincardine next year, I will not support any future Executive that seeks to support the contents of amendment 206. I am sure that we will reject it today, just as I am sure that the people of Scotland will reject it if the Labour Party is daft enough to put it in its manifesto for next year's election.
Mr Rumbles has shown yet again that the Liberals are prepared to put the partnership before their principles. The Tories commented on the importance of convictions. We have supported the risk of sexual harm orders. In our society, there is a small minority of people who have not been convicted of a crime but who we know have a propensity to commit serious and dangerous actions against individuals. We would be neglecting our duty if we did not seek to take action against them. We have to balance their rights with the protection of our society. Thankfully, we are talking about a small minority of people, but they do not conform to the normal rules of engagement to which other members of society conform. Whether that is because they are sociopathic or psychopathic, we have to deal with them as a different and separate category. We fully support Bill Butler and his amendments.
The minister and Jeremy Purvis bandied about the point that they have the support of GeneWatch but, in fact, they quoted Miss Wallace's letter selectively. When I spoke to her earlier this week, she made it clear that GeneWatch does not support Paul Martin's amendments. Those members should have spoken to Miss Wallace before they claimed to have her support.
I turn to Paul Martin's amendments 206 and 207, which we believe would undermine fundamentally the relationship between the citizen and the state. We, as a legislature, have an obligation to punish the guilty, but we also have a responsibility to protect the innocent, which is where the amendments go awry. Of course victims have rights, but so do ordinary citizens who do not commit offences. We have to balance those rights.
Will Mr MacAskill respond to the point that Marilyn Livingstone and Paul Martin made, which was that DNA retention frees the innocent as well as convicting the guilty?
I do not believe that DNA retention exculpates people in that manner. If someone who has neither been convicted of an offence nor had imposed on them a risk of sexual harm order—which would disclose that they had a propensity to commit such an offence—does not have the right to challenge a position or to put their viewpoint, the system is fundamentally undemocratic. The Liberal Democrats might be prepared to lie supine before the authoritarian Big Brother tendencies of new Labour, but the Scottish National Party is not. The approach to identity cards and the drive by the Home Office towards an almost totalitarian state are fundamentally wrong.
We get the policing that we deserve. We have to have co-operation and the good citizen has to be encouraged to co-operate. Law and order cannot be dealt with simply by the professionals, whether sheriffs, the judiciary or the police. If people will not report crime or testify in court, our democratic and judicial systems will break down. We have to maintain the fundamental balance between the citizen and the state. The individual citizen gives rights to the state. I say to Mr McConnell that the fundamental difference between the Scottish National Party and new Labour is that we believe that the citizen has rights and cedes powers to the state. Unlike the Conservatives, we believe that there is such a thing as society, but we do not believe that the state has in every instance the right to dictate what individuals do. The Executive's view of where it seeks to take Scotland is fundamentally undemocratic and will damage the innocent people in our society, as well as everybody else.
I remain concerned about the time and I am conscious of the fact that the minister spoke at the beginning of the debate on this group, but if he requires to put points on the record, I am prepared to give him a short opportunity to do so.
Pauline McNeill asked about inferences from the presence of DNA on a database. I assure her that absolutely no inference will be drawn from the presence of DNA on a database. An innocent person has nothing to fear from having their DNA kept on a database. As the First Minister said, that can help to clear someone of a crime. Furthermore, if a person's DNA suggests that they have been at the scene of a crime, it does not automatically mean that they are guilty; rather, it gives them an opportunity to clear their name.
Will the member give way?
No, thanks.
It is worth saying, however, that people are convicted because of the use of DNA. Today, doubts have been cast on the validity and value of DNA sampling. However, the Farah Noor Adams murder in Glasgow was cleared up by the existence of a DNA sample that had been randomly taken from someone for another purpose. The murder of an old woman in Maryhill was cleared up by the use of DNA. DNA sampling works and is proven to work. No one has any cause to fear it.
Pauline McNeill asked for assurances in relation to storage. There are secure facilities and a limited number of people have access to that database. I guarantee that the DNA storage facilities are exceptionally sound—
Like the fingerprint storage facility?
Order, Mr Neil.
There has been no recorded incident of DNA being stolen or misused. The DNA that we are talking about using, from a limited number of people, will sometimes make a big difference, as Paul Martin and others have suggested.
Kenny MacAskill is right to raise the issue of rights. People in society have rights, but people in society have nothing to fear from the use of science connected to DNA. However, on the subject of rights I must say that although people in wider society have rights, so do the victims of violent and sexual crimes. I know whose rights I want to protect when it comes to helping those people, helping to prevent crime and helping to solve crime.
This has been a serious debate on complicated issues. People have spoken passionately and frankly about how they feel and have, with a few exceptions, done so in a way that was to the point and not idiosyncratic. Those who are idiosyncratic have made themselves known; I do not think that I need to say any more about them.
I am grateful for the support of the Executive and almost all the other parties for the amendments in my name. I still hope that Bill Aitken and David Davidson will change their minds about the proposals.
I emphasise that the purpose of a risk of sexual harm order is to protect children from harm and that the order will be obtained only if it appears to the bench that a person is engaged in sexually inappropriate conduct with, or in the presence of, a child. As Stewart Maxwell said, it is a proportionate preventive measure, there is a process that must be gone through and safeguards are built in.
The effect of my amendments would be that the police will be able to take and retain the prints and samples of anyone in Scotland who is subject to an RSHO. However, they also provide that any DNA samples and fingerprints and any information that derives from them must be destroyed when the individual is no longer subject to an RSHO.
Will the member give way?
I am sorry, but I do not have time.
With those assurances, I hope that the Conservatives will change their minds and support the amendments in my name. I believe that they will close an unintended loophole, are proportionate and do not conflict with the ECHR. On that basis, I ask for the support of all of my colleagues.
I thank Paul Martin for lodging his amendments, which has allowed us to discuss the complicated and serious areas that they deal with. For the record, I point out that in England and Wales the increased retention of DNA of unconvicted people has led to profiles being linked to 10,754 offences, many of which have been serious. I accept that GeneWatch's figures contradict that, but I feel that there has been too much assertion and not enough evidence on both sides to allow us fully to go in the direction that Paul Martin has proposed. As a result, I remain unconvinced about most of Paul Martin's amendments.
That said, I am convinced that Paul Martin's amendment 207 represents a focused, reasonable and proportionate compromise. I feel that the proposal to retain DNA for a prescribed number of years in certain specified circumstances and with any extension in that respect requiring the police to go before a sheriff for determination—I am glad that the minister clarified that matter—contains enough reasonable safeguards. As Pauline McNeill said, the provision is on the outer limit, but I believe that it is just within that limit. On that basis, I hope that members are able to support amendment 207.
This good debate has, in the main, shown Parliament to be a mature and responsible body. We should now go to the vote.
The question is, that amendment 208 be agreed to. Are members agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Canavan, Dennis (Falkirk West) (Ind)
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)
Eadie, Helen (Dunfermline East) (Lab)
Fabiani, Linda (Central Scotland) (SNP)
Finnie, Ross (West of Scotland) (LD)
Fox, Colin (Lothians) (SSP)
Gibson, Rob (Highlands and Islands) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, 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)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Campbell (West of Scotland) (Ind)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McFee, Mr Bruce (West of Scotland) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (South of Scotland) (SNP)
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)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robison, Shona (Dundee East) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Sheridan, Tommy (Glasgow) (SSP)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinburne, John (Central Scotland) (SSCUP)
Swinney, Mr John (North Tayside) (SNP)
Wallace, Mr Jim (Orkney) (LD)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Against
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brownlee, Derek (South of Scotland) (Con)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Miss Annabel (West of Scotland) (Con)
Harvie, Patrick (Glasgow) (Green)
Johnstone, Alex (North East Scotland) (Con)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Petrie, Dave (Highlands and Islands) (Con)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, John (Ayr) (Con)
The result of the division is: For 91, Against 16, Abstentions 0.
Amendment 208 agreed to.
Amendments 196 to 198 moved—[Bill Butler]—and agreed to.
Amendment 161 moved—[Hugh Henry]—and agreed to.
Amendment 199 moved—[Bill Butler]—and agreed to.
Amendment 162 moved—[Hugh Henry]—and agreed to.
Amendment 200 moved—[Bill Butler].
The question is, that amendment 200 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Canavan, Dennis (Falkirk West) (Ind)
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)
Eadie, Helen (Dunfermline East) (Lab)
Fabiani, Linda (Central Scotland) (SNP)
Finnie, Ross (West of Scotland) (LD)
Fox, Colin (Lothians) (SSP)
Gibson, Rob (Highlands and Islands) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, 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)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Campbell (West of Scotland) (Ind)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McFee, Mr Bruce (West of Scotland) (SNP)
McMahon, 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 (South of Scotland) (SNP)
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)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robison, Shona (Dundee East) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Sheridan, Tommy (Glasgow) (SSP)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinburne, John (Central Scotland) (SSCUP)
Swinney, Mr John (North Tayside) (SNP)
Wallace, Mr Jim (Orkney) (LD)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Against
Aitken, Bill (Glasgow) (Con)
Ballard, Mark (Lothians) (Green)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brownlee, Derek (South of Scotland) (Con)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Miss Annabel (West of Scotland) (Con)
Harvie, Patrick (Glasgow) (Green)
Johnstone, Alex (North East Scotland) (Con)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Petrie, Dave (Highlands and Islands) (Con)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, John (Ayr) (Con)
The result of the division is: For 92, Against 17, Abstentions 0.
Amendment 200 agreed to.
Amendments 201 to 203 moved—[Bill Butler]—and agreed to.
Section 72C—Information about release: power to require giving of specified information
Amendment 163, in the name of the minister, is grouped with amendments 164 and 9.
Amendments 163, 164 and 9 will make some slight changes to sections 72C and 72D.
Amendments 163 and 164 will make technical amendments to section 72C. The amendments will enable regulations that are made under section 96 of the Sexual Offences Act 2003 to make different provision for different purposes. It may be that that the basic information about a registered sex offender that should be given to the police differs from the information that is given to other specified persons, or that different information may be given to specified persons when an offender is released from prison or hospital as opposed to when an offender is transferred.
Amendment 9 will amend the definition of "sexual offence" in new section 96A of the Sexual Offences Act 2003 to include references to the offences at paragraphs 59A to 59C of schedule 3 to that act, which were inserted by the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005.
I move amendment 163.
The amendments in this group are unobjectionable and my party will support them.
Amendment 163 agreed to.
Amendment 164 moved—[Hugh Henry]—and agreed to.
Section 72D—Police powers of entry and examination of relevant offender's home address
Amendment 9 moved—[Hugh Henry]—and agreed to.
After section 72D
Amendment 204 is in the name of Paul Martin.
Not moved.
Amendment 204 moved—[Stewart Stevenson].
The question is, that amendment 204 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Maclean, Kate (Dundee West) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
Morgan, Alasdair (South of Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Aitken, Bill (Glasgow) (Con)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Canavan, Dennis (Falkirk West) (Ind)
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 (Galloway and Upper Nithsdale) (Con)
Finnie, Ross (West of Scotland) (LD)
Fox, Colin (Lothians) (SSP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, 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)
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)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Campbell (West of Scotland) (Ind)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (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)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
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)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Petrie, Dave (Highlands and Islands) (Con)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Sheridan, Tommy (Glasgow) (SSP)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Abstentions
Swinburne, John (Central Scotland) (SSCUP)
The result of the division is: For 24, Against 84, Abstentions 1.
Amendment 204 disagreed to.
Amendment 205 is in the name of Paul Martin.
Not moved.
Amendment 205 moved—[Stewart Stevenson].
The question is, that amendment 205 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (Aberdeen North) (SNP)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Maclean, Kate (Dundee West) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
Morgan, Alasdair (South of Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Aitken, Bill (Glasgow) (Con)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Canavan, Dennis (Falkirk West) (Ind)
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 (Galloway and Upper Nithsdale) (Con)
Finnie, Ross (West of Scotland) (LD)
Fox, Colin (Lothians) (SSP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, 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)
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)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Campbell (West of Scotland) (Ind)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (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)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
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)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Petrie, Dave (Highlands and Islands) (Con)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Sheridan, Tommy (Glasgow) (SSP)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Abstentions
Swinburne, John (Central Scotland) (SSCUP)
The result of the division is: For 24, Against 85, Abstentions 1.
Amendment 205 disagreed to.
We have clawed back a little bit of time, but as a precautionary measure I am, as I announced earlier, minded to accept a motion from any member under rule 9.8.5A to extend by 10 minutes the final deadline as set out in the timetabling motion.
Motion moved,
That, under 9.8.5A, the time limits for groups 13 to 19 be extended by 10 minutes.—[Ms Margaret Curran.]
Motion agreed to.
Section 74—Power to take fingerprints to establish identity of suspect
Group 14 is on the power to take fingerprints to establish a suspect's identity. Amendment 165, in the name of Colin Fox, is the only amendment in the group.
The discussion on amendment 165 inevitably takes on some of the flavour of the previous debate on DNA profiling. The remarks that members have made about the presumption of innocence also apply to amendment 165.
The bill proposes to introduce mandatory fingerprinting of suspects. Those are people who have not even been charged with—far less convicted of—a crime, but they will now be obliged to provide fingerprint evidence to any police officer who asks for it. Currently, we take people's fingerprints when we charge them, but the proposals under section 74 will mean that they could be taken from anybody to identify them.
My amendment 165 seeks to remove section 74. A rubicon is being crossed, because we will treat the innocent in the same way as we treat the guilty. In the debate on DNA, some members highlighted that ordinary citizens who do not commit crimes have nothing to fear from rights being taken away. I look forward to those comments also being made on this measure.
We should leave aside the obvious uncertainty that there now is in the Scottish criminal justice system in the light of the Shirley McKie case and the question of whether fingerprints can be used definitively to identify people.
The evidence given to the Justice 2 Committee at stage 1 questioned whether reasonable grounds for suspicion on the part of a police officer would be based on objective intelligence and information about the behaviour of individuals or whether it might instead be based on an individual's age, race or sex. It seems to me that, as with DNA samples, the police will stop people whom they do not like and build up a fingerprint database of them. As I said previously, that is why one in three black men in Britain is now in a database, despite the fact that they make up less than 3 per cent of the total population.
I move amendment 165.
At stage 2, I shared some of the concerns that Colin Fox has outlined. My concerns related to the destruction of fingerprints and the length of time that that might take. I lodged some amendments on the issue at stage 2. However, I am glad to say that clarification was provided by the minister at stage 2 and we were given reassurances about how and how quickly fingerprints would be destroyed. That was reasonable. Once the issues were explained at stage 2, I was happy to accept the situation. Where Colin Fox is—with all due respect—going wrong is that he fails to recognise that times move on and technology moves on. The ability to take fingerprints remotely and to ensure that police officers can work efficiently and effectively and make good use of their time seems to me to be a higher priority than some of the issues that Colin Fox raised in his speech. Given that clarification on the destruction of fingerprints where necessary was made at stage 2, we will not support amendment 165.
The purpose of section 74 is to enable the police to use mobile fingerprint readers to establish whether somebody is who they say they are. Mobile fingerprint readers will allow officers to do that quickly, effectively and without needing to take the person to a station for fingerprinting, which is resource intensive and time consuming for the officer and the individual.
Furthermore, mobile fingerprint readers will help the fight against crime by enabling police officers to ascertain quickly whether people are suspected of other offences and whether there are outstanding warrants against them. As Stewart Maxwell said, we need to enable police forces to use new technology to best effect for the purposes of preventing and solving crimes. Section 74 gives the police the powers to do that, and it would not be in the interests of effective policing to remove it from the bill.
I hope that Colin Fox will withdraw his amendment, given what was said not only today but at stage 2. If he does not, I ask the Parliament to oppose it.
I insist on my right to press my amendment. There is a principle here. The minister talks about the need to use roadside technology. That is fine—I am all in favour of technology. However, as things stand, we take fingerprints if we charge people. We are having the same debate that we had earlier on DNA. As far as I am concerned, it is not appropriate to take the fingerprints of people who have not been charged with an offence.
The question is, that amendment 165 be agreed to. Are we agreed?
No.
There will be a division.
For
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Canavan, Dennis (Falkirk West) (Ind)
Fox, Colin (Lothians) (SSP)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Martin, Campbell (West of Scotland) (Ind)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Sheridan, Tommy (Glasgow) (SSP)
Against
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
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)
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)
Fabiani, Linda (Central Scotland) (SNP)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Finnie, Ross (West of Scotland) (LD)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, 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)
Johnstone, Alex (North East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McFee, Mr Bruce (West of Scotland) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McMahon, 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 (South of Scotland) (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)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Petrie, Dave (Highlands and Islands) (Con)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robison, Shona (Dundee East) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinburne, John (Central Scotland) (SSCUP)
Wallace, Mr Jim (Orkney) (LD)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 11, Against 95, Abstentions 0.
Amendment 165 disagreed to.
After section 74
Amendment 206 not moved.
Amendment 207 moved—[Paul Martin].
The question is, that amendment 207 be agreed to. Are we agreed?
No.
There will be a division.
For
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (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)
Eadie, Helen (Dunfermline East) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, 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)
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)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McMahon, 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)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Swinburne, John (Central Scotland) (SSCUP)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brownlee, Derek (South of Scotland) (Con)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Canavan, Dennis (Falkirk West) (Ind)
Cunningham, Roseanna (Perth) (SNP)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fabiani, Linda (Central Scotland) (SNP)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Goldie, Miss Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Lochhead, Richard (Moray) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Martin, Campbell (West of Scotland) (Ind)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Petrie, Dave (Highlands and Islands) (Con)
Robison, Shona (Dundee East) (SNP)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, John (Ayr) (Con)
Sheridan, Tommy (Glasgow) (SSP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
The result of the division is: For 63, Against 44, Abstentions 0.
Amendment 207 agreed to.
Section 84—Assistance by offender: review of sentence
Group 15 is on offenders assisting investigations and prosecutions. Amendment 166, in the name of the minister, is grouped with amendments 167 and 168.
Amendment 166 is purely technical. It adds a new subsection at the end of section 84 that makes it clear that someone who has been fined can be regarded as still serving a sentence if the fine has not yet been paid in full. As currently drafted, section 84 states that a sentence can be referred back to court only
"if … the offender is still serving the sentence".
It is not clear whether that would catch fines, many of which do not have a set period for payment by instalments but simply fall due in total as soon as the sentence is passed. Amendment 166 places the matter beyond doubt.
Amendment 167 is also purely technical. We have had cross-party support for a rigorous approach to confidentiality when an offender gives information about an offence other than the one for which he is on trial. Confidentiality is in the interests of justice and it is necessary to protect the individual. However, it is clearly important that the lower courts should be able to pass text information to the High Court when an appeal to which that information is relevant is lodged. Amendment 167 makes it clear that nothing in the confidentiality requirement in section 87(3) stops the first-instance court disclosing that information to the High Court when a relevant appeal is lodged.
Amendment 168 substitutes an expanded version of section 87A for that which was inserted at stage 2. It makes detailed provision for confidentiality in relation to information that is given by an offender under section 87 when an appeal is made to the High Court to which that information is relevant. This is also a technical amendment that does not reflect any change in policy. The principle remains that the protection afforded to an offender by confidentiality should apply during appeal provisions as it did during first-instance provisions. The new provision simply ensures that all forms of appeal or reference back to the High Court and all stages of an appeal are covered by appropriate confidentiality requirements.
Further, the new provision makes it clear that the Scottish Criminal Cases Review Commission can receive text information where that is relevant to its consideration of a case, but that it is under a duty not to disclose the existence or content of that information. Finally, we have substituted the power to make rules of court that was introduced by the amendment at stage 2 with a power for Scottish ministers to make further provisions in relation to the area by an order subject to negative procedure. It is appropriate to have parliamentary scrutiny of any provision spelling out further the processes that are to be followed.
I move amendment 166.
Amendment 166 agreed to.
Section 87—Sentencing: consideration of undisclosed information
Amendment 167 moved—[Hugh Henry]—and agreed to.
Section 87A—Appeals against sentence: undisclosed information
Amendment 168 moved—[Hugh Henry]—and agreed to.
Section 93—Subordinate legislation
Group 16 is on application of the Police (Scotland) Act 1967 to the authority or agency by order. Amendment 10, in the name of the minister, is grouped with amendment 11.
These amendments are simply tidying-up amendments to ensure that the order-making powers that were introduced at stage 2 are subject to affirmative resolution procedure.
I move amendment 10.
Amendment 10 agreed to.
Amendment 11 moved—[Hugh Henry]—and agreed to.
Schedule 1
The Scottish Police Services Authority
Group 17 is on membership of the authority. Amendment 169, in the name of the minister, is the only amendment in the group.
Schedule 1 to the bill provides that the Scottish ministers must appoint at least two police force members and at least two police authority members of the Scottish police services authority on the nomination of the relevant representative bodies. The purpose of the amendment is simply to make it clear that if the body in question fails within a reasonable time to put forward nominations as requested by ministers, the duty to appoint at least two members from the category in question no longer applies. Otherwise, there would be at least a theoretical risk of ministers finding themselves under a statutory duty that they could not discharge simply because the body in question, for whatever reason, had not put forward the required number of nominations.
I move amendment 169.
Amendment 169 agreed to.
Amendments 170 to 177, 55 and 56 moved—[Hugh Henry]—and agreed to.
Schedule 2
Membership of the Scottish Crime and Drug Enforcement Agency
Amendments 57 to 64, 178, 66 to 69, 179, 70 to 85, 180, 86 to 89, 181, 90 to 99, 182 to 187, 100 to 102 and 188 moved—[Hugh Henry]—and agreed to.
Schedule 3
Transfers of staff and property
Amendments 12, 13 and 103 moved—[Hugh Henry]—and agreed to.
Group 18 is on transfer of staff and property to the authority or agency. Amendment 189, in the name of the minister, is grouped with amendment 190.
Amendment 189 makes a minor adjustment to the requirement that paragraph 3(2) of schedule 3 imposes on police authorities and joint boards to consult the authority and the director general of the SCDEA before making a staff transfer scheme. The effect of the amendment is to make it clear that the director general need be consulted only in respect of constables who are being transferred to relevant service with the SCDEA and not in respect of constables who are being transferred to relevant service with the authority.
Amendment 190 inserts a definition of local authority into the bill.
I move amendment 189.
Amendment 189 agreed to.
Amendment 190 moved—[Hugh Henry]—and agreed to.
Schedule 4
The Police Complaints Commissioner for Scotland
Amendment 209 not moved.
Schedule 5
Modifications of enactments
Amendments 105 and 106 moved—[Hugh Henry]—and agreed to.
Group 19 is on minor modifications of enactments. Amendment 191, in the name of the minister, is grouped with amendment 192.
These minor tidying amendments replace the obsolete references to the Royal Ulster constabulary in the Police (Scotland) Act 1967 with the police service of Northern Ireland.
I move amendment 191.
Amendment 191 agreed to.
Amendments 192, 14, 193 and 107 to 119 moved—[Hugh Henry]—and agreed to.
Amendment 194 not moved.
Amendments 120 to 129 moved—[Hugh Henry]—and agreed to.
That ends consideration of amendments.