Mental Health (Public Safety and Appeals) (Scotland) Bill

– in the Scottish Parliament at 9:30 am on 2nd September 1999.

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Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament 9:30 am, 2nd September 1999

The first item of business this morning is a debate on motion S1M-109 in the name of Mr Jim Wallace, which proposes that the Mental Health (Public Safety and Appeals) (Scotland) Bill be treated as an emergency bill. I remind members that this debate will be followed immediately by a decision on the motion. In fact, decisions will follow all items of business that will be taken this morning in accordance with the business programme that was agreed yesterday. I give notice that the debate will last for one hour and 30 minutes and that the decision will be taken at the end of that period. Members will be expected to be in the chamber for the decision. If there is a vote, the voting period will be the usual 30 seconds. To protect time for the important debates today, there will not be the normal 10-minute notice of votes. As no extra time will be allowed, it is important that members are in the chamber when decisions are made today.

The occupants of the chair will allow a wide-ranging debate on motion S1M-109, which is the debate that we are about to have on the need for an emergency bill, but during the second debate, which is on the bill itself, we will strictly apply the rule that the debate will be about the contents of the bill and will not hark back to the events that we are about to discuss. The timings throughout the morning will be four minutes for each speech from the back benches. I call Mr Jim Wallace to speak to and move the motion.

Photo of Jim Wallace Jim Wallace Liberal Democrat 9:32 am, 2nd September 1999

On 2 August, Sheriff Douglas Allan reached a decision in Lanark sheriff court on an appeal under sections 63 and 64 of the Mental Health (Scotland) Act 1984 that led to the absolute discharge of Noel Ruddle.

That decision exposed a serious flaw in the 1984 act. Until 2 August, Mr Ruddle was one of 144 restricted patients who were detained in the state hospital at Carstairs. Patients there suffer from a range of mental disorders, including depression and mental impairment. Some patients have convictions for grave offences, others have lesser convictions and some have no convictions at all. There is a small group of patients in the state hospital whose release would give rise to serious and enduring concern for public safety. Noel Ruddle was in that category.

The facts of Noel Ruddle's case are now well known. He was convicted in 1992 of culpable homicide and sent to the state hospital on a combined hospital and restriction order. In March this year, he appealed to the sheriff against his continuing detention. Scottish Office ministers instructed officials to oppose the appeal on the basis of medical evidence that Noel Ruddle was appropriately detained. Ministers also had regard to the broad definition of treatability that the House of Lords had set out in a judgment in December 1998 in the case of Alexander Reid v the Secretary of State for Scotland.

At hearings in April this year, the sheriff considered reports from forensic psychiatrists. Those reports agreed, by and large, that Ruddle was mentally disordered and that he presented a risk to the public. They disagreed on whether he was being treated in a way that alleviated his condition or stopped it deteriorating.

On 2 August, in a long and considered judgment, the sheriff found that Noel Ruddle was not in receipt of any treatment that was capable of benefiting his mental disorder. The sheriff was not permitted by the law as it stood to have regard to the issue of public protection so, under the law as it relates to people with personality disorders, Ruddle could not be further detained.

Ministers urgently considered whether there were any steps that could be taken to keep Mr Ruddle in the state hospital, but the law provided no help. There was no right of appeal. The sheriff's judgment was combed with a view to judicial review, but the unequivocal legal advice, which ministers accepted, was that such a step offered no prospect of continuing Noel Ruddle's detention.

The stark truth is that once Sheriff Allan had decided that Ruddle was no longer detainable, no other legal restraint could have been applied: not an interim interdict to continue his detention; not a civil power to section him; not a conditional discharge. To suggest otherwise is just wishful thinking, misunderstanding or, conceivably, political posturing.

It would be equally wrong to suggest that leaving the law in such a state was acceptable. The only way to guarantee public safety in future was to change the law.

On 2 August, urgent consideration of emergency legislation was instructed. On 4 August, I announced that we would bring forward emergency legislation to plug the loophole in the Mental Health (Scotland) Act 1984, and that we would aim to do so shortly after Parliament's return from the summer recess. We never made any secret of the difficulties and we did not underestimate the challenge, but never did I or the Executive waver from that aim. It was our objective, it remained our objective and today we are delivering.

We have been criticised for failing to plug the Ruddle loophole before it appeared. That argument is fanciful. It is true that the case of Alexander Reid raised the possible argument that someone might be released from detention if they were not treatable, but it must be remembered that the secretary of state won that and a subsequent case. Moreover, the House of Lords, in its ruling on Reid, gave a very wide definition of treatment. In the Ruddle case, the sheriff decided on the basis of the evidence before him that Ruddle's position fell outside even that wide definition. It was only then that the loophole and its precise nature were exposed. Our actions since then have been aimed at closing the loophole as soon as possible and, more important, before any other patients could avail themselves of it. This legislation does that.

The Reid judgment made it clear that the law relating to offenders with personality disorders needed fundamental review. That is why the Government set up the MacLean committee within weeks of the Reid judgment and why we have made a commitment to comprehensive legislation once the MacLean and Millan committees have reported.

Noel Ruddle's abrupt and unconditional release must concern us all. We stand ready to act and seek Parliament's help today, in the interests of public safety, to plug the loophole before personality-disordered patients in a similar position follow him.

The legislation that we seek today has been prepared urgently, but with great care, to tackle the loophole that allowed Noel Ruddle's discharge. The legislation will put public protection at the heart of the decisions that sheriffs take in considering appeals for absolute discharge and will allow ministers to appeal against decisions when, in the ministers' view, public safety concerns have not been adequately dealt with. Other steps are to clarify the importance of public safety in ministers' decisions on restricted patients and to include personality disorders in the statutory definition of mental disorder. We want those powers to be in place for current and future appeals. It is intended that the new test will come into effect for any appeals that are heard after 1 September.

As you are aware, Sir David, bills in the Scottish Parliament must comply with the articles of the European convention on human rights; we have framed the bill with that in mind. Acting on independent legal advice, you, as Presiding Officer, have sanctioned the introduction of the bill as a competent measure.

This emergency legislation has not been the Executive's only response to the Ruddle judgment. At our request, the Mental Welfare Commission for Scotland is examining aspects of care and treatment in Mr Ruddle's case and in similar cases. The commission is focusing on psychological interventions that might have been considered appropriate, and will report by the end of the year.

As I have said, the MacLean and Millan committees are working to modernise and improve our legal framework, and are consulting widely on the steps we should take.

In the first months of next year, we should have advice on the sentencing of serious offenders with personality disorders. By next summer, that will be followed by comprehensive proposals to modernise Scotland's mental health legislation. I am sure that I speak for the Parliament when I say that I am grateful to Lord MacLean and to Bruce Millan for leading this important work. That is why I have made it clear that I consider today's emergency legislation to be an interim measure. I promise that full and well-conceived legislative proposals will be presented during this parliamentary session.

Photo of Margaret Ewing Margaret Ewing Scottish National Party

We all welcomed the establishment of the Millan and MacLean committees. In view of the nature of the legislation, will the minister guarantee that those committees, having been established by Westminster, will report to the Scottish Parliament? Will he also guarantee that all members will have an opportunity to examine their recommendations in detail?

Photo of Jim Wallace Jim Wallace Liberal Democrat

I am grateful for that intervention because it allows me to confirm that both those committees will report to this Parliament. Their reports will be the subject of considerable consultation in this Parliament and its committees. Through that process, the Parliament will discharge its responsibility in what is recognised to be a difficult but important sphere of public interest and concern.

We await those proposals and we look forward to the subsequent legislation, but today's legislation is no less vital; in the interests of public safety, we had to find a quicker way of plugging the loophole exposed by the Ruddle case. That is why we are pressing colleagues to agree to treat this bill as emergency legislation.

Following Noel Ruddle's release, there is a risk that, without this bill, a small number of mentally ill patients, some of whom have committed grave offences and are still considered dangerous, could be freed. That is why it is crucial that members support this measure. Parliament must act now to change the law and to close off this serious threat to public safety in Scotland.

I move,

That the Parliament agrees that the Mental Health (Public Safety and Appeals) (Scotland) Bill be treated as an Emergency Bill.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party 9:42 am, 2nd September 1999

The emergency legislation that is before us today is undoubtedly an example of what can be achieved by this Parliament and of the speed with which we can achieve it in comparison with Westminster. It is also an example, however, of what happens when a Government does not do its job.

It is a tragedy that the first piece of legislation before this Parliament has to be passed under the emergency provisions contained in the standing orders. I understand that the process has uncovered one or two deficiencies in the standing orders as they pertain to emergency legislation-happily, that will be a matter for the Procedures Committee and not for me.

More than the standing orders are deficient, however. The verdict of many people, not just in this chamber but throughout the country, is that the Executive has been found seriously wanting in its handling of the matter.

We should remember that, on Monday 2 August, Noel Ruddle's release from Carstairs did not come as a bolt out of the blue, either to the Minister for Justice or to the First Minister. Apparently, they had a conversation on the Sunday about the forthcoming release. Astonishingly, they did not consider public confidence to be an issue that they had to address; they cannot have done so, otherwise the matter would not have been handled in such a cack-handed way during the days and weeks since then.

During that period, their handling of the situation seems to have got worse and worse. They gave the impression of two lawyers having a cosy chat on the phone-

Photo of George Lyon George Lyon Liberal Democrat

On a point of order, Presiding Officer. Will Roseanna Cunningham clarify whether she is speaking in her capacity as the Convener of the Justice and Home Affairs Committee, or as-

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

The clear impression was of two lawyers having a cosy chat on the phone about the legal niceties of the case, while entirely forgetting their responsibilities as politicians and as members of the Executive.

The minister seemed totally unprepared for the storm that broke over his head. Why was that? The question remains unanswered by him. Based on the evidence of that first week following Ruddle's release, the answer is probably that he would not recognise a real political issue if it got up and bit him on the nose.

At the Justice and Home Affairs Committee meeting on Tuesday afternoon, the minister said that he was not told of the problem that was likely to be posed by the Ruddle case until 14 July-almost two months after he took office. That raises questions about the quality of the advice to ministers. Receiving that information on 14 July would, however, still have given him two weeks to get to work on the problem before the outrage hit the fan. What happened between 14 July and 2 August? We should be told.

On the evidence of the publicity at the time, the First Minister seems to have packed his bags to head off on a wee holiday. I do not begrudge him that holiday, although I notice that he is not in the chamber today, which is a pity. I wonder, however, whether the timing of that holiday was entirely apt in the light of the advance warning that had been given.

The Minister for Justice must also have cleared off somewhere, because a junior minister initially handled the furore and was left blinking like a bewildered rabbit in the studio lights, haplessly and hopelessly defending the indefensible until the Minister for Justice rode to the rescue some days later. Meanwhile, Ruddle had been doing some bag packing of his own.

When the minister reappeared, it was to a hastily arranged meeting with me and the leader of the Conservative party. No doubt, he hoped that that meeting would stop the uproar. It is a pity that, when he was pressed on whether there were any cases in the pipeline similar to Ruddle's, he answered with an unequivocal no. Lo and behold, that was not strictly true. The minister now tells us that the facts of one of the cases about which he did not advise us were not intimated to him until some hours after the meeting on 4 August-we must accept his word on that. However, I still do not accept the explanation that was given for withholding information about the other case that was due to come up-the Tonner case.

Photo of Jim Wallace Jim Wallace Liberal Democrat

I must answer that point. It has been explained to Roseanna Cunningham that, in the first case in question, the intimation of the appeal was made only on the day of the meeting. Even if the appeal were to succeed in that case, the applicant would be transferred to prison.

The clear advice that I was given, based on careful consideration of the cases, was that the other case was materially different from Ruddle's. It therefore did not fall into the same category as the handful of cases on which our discussions focused. I did not mislead her.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

The minister knows that the explanation that was subsequently given on 27 August was not accepted either by me or by Mr McLetchie.

It transpired that the appeal was made on precisely the same point but that, at an early stage, a view was taken of the quality of the evidence. The minister was therefore going to advise us that the cases were not the same. However, to say that a different view was taken of the quality of the evidence is by no means the same as saying that the Tonner case was not similar to the Ruddle case.

It was disingenuous in the extreme for the minister to have taken that position on the Tonner case, and I think that he knows it. The matter has damaged his credibility. His credibility was not helped any further by his saying before the Justice and Home Affairs Committee on Tuesday that he was not there in 1997 and 1998 during the events that led up to the case.

Photo of Jim Wallace Jim Wallace Liberal Democrat

It is true that I was not there.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

The minister may say that it is true that he was not there, but that does not help his case.

The phrase that he used at the committee meeting seemed vaguely familiar to me, and then I remembered why. There are three well-known defences in Scots law. The first I had better not repeat for fear of incurring the Presiding Officer's wrath, but I will let him in on the secret afterwards. The second is that a big boy did it and ran away-that is clear enough, I suppose. The third is, "It wisnae me; I wisnae there," and that is what the minister is saying about his position.

Obviously, the minister remembers that defence well from his years at the Scottish bar-so well that he thought that he would try it out for himself when he got into a corner. As a plea in this case, it is a total non-starter. Whether Mr Wallace likes it or not, he took the job, he took the money and now he has to take the responsibility. That leaves him swinging gently in the breeze-no doubt that is where his coalition partners would like to leave him.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

No, I am taking no more interventions; I have limited time.

We should not ignore the figure skulking in the long grass. It is the First Minister-who is not here-hoping that no one will spot him or his involvement in the whole affair leading up to 1999. I do not think that he should be let off quite so easily. He certainly cannot pretend that he was not well warned of the effect that the release would have on public opinion and confidence. A previous high-profile case-mentioned by the Minister for Justice and similar in its facts-had generated major publicity. The Reid case was covered extensively by the press after the sheriff court decision in 1997 and again in 1998. Indeed, it led to a front page Daily Record headline on 23 August 1997: "Madness". Madness indeed.

Let us consider the Reid case, which both ministers have regularly cited in their own defence.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

The minister is in her last minute now. [Laughter.] I am sorry, I meant to say that the member is in her last minute, so interventions cannot be taken.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

On Tuesday, the Minister for Justice stated categorically that "the MacLean committee was set up as our response to the Reid judgment." [Official Report, Justice and Home Affairs Committee, 31 August 1999; c 31.]

The MacLean committee was set up after a successful intervention in the House of Lords. Apparently, the success in the sheriff court appeal a year earlier had not set the alarm bells ringing, but the success in the House of Lords had. I would like to know why, in the middle of 1998, given that Ruddle had then come into the queue, the then Secretary of State for Scotland did not hear the alarm bells ringing loudly enough to have done something about it. We have lost a great deal of time in dealing with the issue.

The problems posed by the Mental Health (Scotland) Act 1984 had been growing for some time. There are other issues to do with treatability, which take us back to 1994, but other members will deal with that. The unpalatable truth is that the current Minister for Justice is responsible for the debacle-he is on the hook, but he is not the only one. The previous Secretary of State for Scotland, now the First Minister, must take some share of the blame. The fact that he is not in the Parliament today and is pretending that this matter has nothing to do with him simply will not do.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

I am sorry, but your microphone is not on. Please press the button.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

I am sorry about that. Could we have Mr McLetchie's microphone on, please?

I will grant you injury time. Just shout, David. [Laughter.]

Photo of David McLetchie David McLetchie Conservative

Thank you, Mr Presiding Officer.

On behalf of the Scottish Conservative party, I am pleased to confirm our support for the motion calling for the Mental Health (Public Safety and Appeals) (Scotland) Bill to be treated as an emergency bill.

We have been urging the Scottish Executive to treat the matter with the urgency that it deserves since the sheriff's decision in the Ruddle case was first announced on 2 August. Mr Ruddle was released from Carstairs notwithstanding the fact that his state of mental health was such-whether treatable or untreatable-that he represented a danger both to the public and, lest it be forgotten, potentially to himself.

It is a matter of urgency that we close the loophole in the law used by Mr Ruddle to gain his freedom and which others might seek to exploit in pending cases-other cases that might come before our courts before we have the comprehensive review of mental health legislation following the reports of the MacLean and Millan committees and any subsequent legislation that we might enact. However, although we welcome and support the motion, it provides an opportunity for the Parliament, in plenary session, to consider the way in which both the minister and the Scottish Executive have handled the matter. There are lessons to be learned from this affair in terms of the conduct of the Government and the relationship between the Executive and the Parliament.

The first charge that we lay at the door of the minister is one of complacency. Mr Wallace and Mr Dewar failed to pull out all the legal stops to try to keep Mr Ruddle in detention. It was open to them to seek a judicial review in the Court of Session of the decision to grant Mr Ruddle his freedom, coupled with an interim suspension of the discharge order, pending consideration of that application. I fully accept that there was no guarantee that such an application would have been successful and have resulted in the detention of Mr Ruddle, but it should at least have been attempted. In the opinion of experts, such as the former Lord Advocate, Lord Mackay of Drumadoon and the former Solicitor General, Paul Cullen QC, there was a stateable case for a review, based on the failure of the sheriff to explain in his judgment why he discounted the evidence of one of the psychiatrists who believed that Mr Ruddle's condition was treatable.

I find it very difficult to believe that, given the time that the Executive had to consider the matter and the legal advice at its disposal, the minister could not have instructed the presentation of a stateable case to the court. As Ms Cunningham said in her speech, let us not forget that the Ruddle decision did not come out of the blue on 2 August. The hearing before the sheriff was concluded in May. The minister told the Justice and Home Affairs Committee on Tuesday this week that he was advised of the pending decision on 14 July.

Photo of David McLetchie David McLetchie Conservative

I believe that it is correct. The minister told the committee on Tuesday that he was advised of the background to the case and the pending decision on 14 July. That is in the Official Report .

Photo of Jim Wallace Jim Wallace Liberal Democrat

I want to clarify that point. I was advised of the circumstances of the case and that there was a decision pending. I was not advised of the nature of the decision. Obviously that was not known until the sheriff's judgment.

Photo of David McLetchie David McLetchie Conservative

I think that Mr Wallace will accept that he was advised that there was an important pending decision and that an adverse decision might have led to the release of Mr Ruddle. That was a serious possibility, which was brought to his attention on 14 July. Moreover, the minister, as I am sure he will confirm, told the committee that "allowing for the possibility that Mr Ruddle might have been discharged, efforts were made to put a care package in place before that Monday"- that is Monday 2 August.

If efforts were being made to prepare for defeat in terms of Mr Ruddle's care on discharge, why were contingency plans not being made at the same time to challenge that decision in a higher court? That was a massive failure of political leadership on the part of the Deputy First Minister. He constantly jumped to conclusions and was far too keen to accept the advice that was given, when he should have been doing everything that he could to ensure public safety.

The second charge relates to the minister's failure fully to disclose the position in relation to other cases in his dealings with Opposition parties-part of which has already been covered in his exchange with Roseanna Cunningham.

I accept that one case that subsequently came to light is not relevant. However, that is not true of the case of Mr Tonner. The minister justified his failure to disclose-he confirmed it this morning-on the ground that it was "found that the other case had distinguishing features that did not make it appear to be in the same class as the Ruddle case."-[

Official Report , Justice and Home Affairs Committee, 31 August 1999; c 30, 28.]

That is legal hair-splitting and I have to ask: "found" by whom and "appeared" to whom? It certainly was not the sheriff, who has not even heard the evidence yet.

It was Mr Wallace's advisers who were making a judgment on the evidence and how it would be assessed by the sheriff. The truth is that the minister did not know then, and does not know today, what judgment will be passed on that evidence, because it is not his decision. Given the minister's proclaimed commitment to openness and freedom of information, I find it astonishing that he should take the approach that he has in dealing with Ms Cunningham and myself.

The third charge to be examined is that of foot-dragging in introducing this new legislation. The minister maintains that his response has been rapid, set in train by his statement of 4 August, following our meeting. However, studying his statement, I see not one word in it about emergency legislation. Instead, there is simply a reference to Lord MacLean being asked to accelerate the work of his committee. It was Ms Cunningham and myself who pressed the issue of emergency legislation, whereas-as the notes of the meeting will confirm, and the Deputy Minister for Community Care, Mr Iain Gray, should be able to confirm it as well because he was there-the minister's response was guarded, to say the least, and contained no suggestion that legislation would be brought to this Parliament on anything like the accelerated timetable that we are now being asked to approve.

Photo of David McLetchie David McLetchie Conservative

No, it is correct. If you look at the notes of the meeting-your advisers were there-you will find the suggestion that legislation would not be in place until at least October. I am sure that Ms Cunningham will confirm that that was the clear impression you gave on those discussions. All we heard about were the difficulties with the legislation; we did not hear about any decisive intent on your part to act at that time. I am quite happy, if you are, for the notes of that meeting to be published in order to-

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

Mr McLetchie, please leave me out of it. You have been addressing me and not the minister.

Photo of David McLetchie David McLetchie Conservative

I beg your pardon, Mr Presiding Officer. I inadvertently said "you".

Photo of David McLetchie David McLetchie Conservative

If I may have an extension, I will let Mr Gray clarify things.

Photo of Iain Gray Iain Gray Labour

I want to clarify the points that Mr McLetchie made. Does he not agree that-at the meeting to which he referred-we discussed clearly with him and Ms Cunningham the possibility of laying emergency legislation before the Parliament immediately on its return after the recess, which is what we are doing? There followed a discussion on how long that process would take. We now know that it will take a week, but that was not clear at the time of the meeting. We said that we would bring the legislation to the Parliament when it returned. Ms Cunningham's response, as I recall, was that the Scottish National party had never asked for Parliament to be recalled. Is not that Mr McLetchie's recollection of the meeting?

Photo of David McLetchie David McLetchie Conservative

My recollection is that the whole subject of emergency legislation was initiated in that discussion by Ms Cunningham and myself, and that most of the initial discussion-led by Mr Gray and the Deputy First Minister-related to a review of the Ruddle case and why certain actions had or had not been taken. The complexity of any new legislation in relation to human rights was also discussed.

I accept that the ministers said that legislation might be introduced, but what we are talking about now is the timetable and the speed of response. The indications that were given at that meeting-and Ms Cunningham and the notes will confirm this-were that we were unlikely to have legislation on the statute book until at least October. As he said in his statement of 4 August, Mr Wallace was going to make a prior referral of the matter to the MacLean committee. That is in his statement.

Photo of David McLetchie David McLetchie Conservative

No thank you-I have just answered that one fully.

We now have an accelerated timetable because of the public outcry and the political pressure that has been brought to bear. When it was put to its first test, the Scottish Executive flunked the examination. The report card for this lot will read: leadership, failed; openness, failed; responsiveness, failed. However, of all those failures, it is the failure of political leadership and the failure to pull out all the stops to protect the safety of the public that are by far the most damning. Instead of a minister being in charge of his department and offering decisive leadership in the public interest, we have a minister being run by his department, meekly accepting the advice proffered and being unable to see the big picture. The Ruddle affair is a nightmarish Scottish version of "Yes Minister", with one crucial difference-in our case it is exit Jim Hacker, enter Jim Wallace.

The failure of the Executive has brought us to this pass. As an Opposition party, we would compound that failure if we did not hold it to account in this Parliament. However, we have a wider responsibility in the circumstances that have arisen: to support the necessary corrective legislation in principle, and to scrutinise its effectiveness to do the job for which it is intended. That is a responsibility that we willingly shoulder, and that is why we will support the minister's motion.

Photo of Euan Robson Euan Robson Liberal Democrat 10:05 am, 2nd September 1999

I welcome the introduction of the bill. Mr Ruddle's release exposed a loophole in the law and it is important that that loophole be closed. It is also important to emphasise that, within a month of the loophole being exposed, Parliament is to consider emergency legislation, which has been drafted quickly despite having to take into account the complexities of the European convention on human rights. I suggest to Parliament that we should not underestimate those complexities.

In contrast to David McLetchie, I believe that the Executive has demonstrated its commitment to public safety. Otherwise, we would not be here this morning. With your permission, Sir David, I would like to put on record the sympathy of the Parliament to the relatives of Mr Ruddle's victim. It must be difficult for them to have to live with this nightmare, which they will have seen repeated several times in the press.

As we heard in the Justice and Home Affairs Committee, the bill will be an interim measure, pending the reviews that are in train. The Executive has confirmed that there will be further legislation if necessary, after Lord MacLean and the Mental Welfare Commission for Scotland have considered aspects of the Ruddle case. Those aspects were immediately referred to them on 3 August.

It is difficult for laymen to tread in this complex legal area; perhaps it difficult also for recently retired solicitors. However, the problems with the legislation that was introduced in the second term of Mrs Thatcher's Government have been apparent for some time. During the meeting of the Scottish Grand Committee on 16 July 1996, while discussing this very problem, Lord James Douglas-Hamilton-who is with us today, of course-said:

"We need to be absolutely certain that existing criteria give sufficient prominence to the protection of the public. To that end, I have instructed an examination of the criteria with a view to taking whatever measures are necessary."-[Official Report, House of Commons, Scottish Grand Committee, 16 July 1996; c 3.]

I entirely agree that it was important that that review should take place, but after nine months nothing had happened, and no loophole such as has been exposed by Mr Ruddle's case came to light. It is perfectly clear that there have been difficulties with the legislation for a while and that this interim measure is important. However, the general review that will take place after the MacLean committee has reported is equally significant.

The Government was right to rely upon successive successful appeals in the Reid case. It was important that it did so. What else should it have done? As soon as the Reid case was finished, the MacLean committee was set up within about six weeks, over the Christmas period.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

Mr Reid's case was first dealt with in the Scottish sheriff courts in around 1994. It then went through appeals before finally reaching the House of Lords in 1998. The MacLean committee was instructed shortly afterwards. Therefore, there were four years during which the case was considered. It took four years for the previous Administration, and now this Administration, to get their act together and instruct Lord MacLean.

Photo of Euan Robson Euan Robson Liberal Democrat

But is Mr MacAskill suggesting that the Government should initiate a committee of inquiry during the course of legal proceedings? That would probably be unprecedented during a series of appeals.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

Just a minute, Mr McLetchie. Your microphone is not working.

Photo of David McLetchie David McLetchie Conservative

I think that I am live now.

I want to point out that the legislation that we are being invited to enact will affect cases that have already been lodged and are still to be heard. Mr Robson asks whether the Government can initiate a committee of inquiry while the case is pending, but this legislation will change the law while the case is pending, which is far more fundamental.

Photo of Euan Robson Euan Robson Liberal Democrat

I take Mr McLetchie's point. That is a clear legal issue which should be addressed; presumably it has been addressed in relation to the European convention on human rights. It is important that the interim legislation stands the test to which it will be subjected in further appeals.

How would Mr McLetchie have reacted had the Minister for Justice ignored the law officers' advice? I suggest that he would have been one of the first to criticise the minister for doing so. Mr Wallace has suffered some unfair and hostile criticism recently and I commend him for his courage and fortitude during this difficult period. I also commend him for bringing the legislation before the Parliament today-we should proceed with the bill.

Photo of Duncan Hamilton Duncan Hamilton Scottish National Party 10:11 am, 2nd September 1999

I also feel very strongly for Mr Wallace, because he has taken a terrible pounding over this issue. Perhaps there was a subclause in the partnership agreement that said, "In the event of a political hospital pass, a Liberal Democrat minister will take the lead on this and other issues." The entire Executive has to take some responsibility for an issue that involves the justice department and the health department. Although I support the need for emergency legislation, I will focus on two key areas that might have stopped us getting into this mess; I would appreciate it if the minister would address the position in which we find ourselves when he sums up.

My first point concerns the treatability test. As Mr Wallace rightly pointed out, the sheriff was put in the position of handing down an absolute discharge, because Mr Ruddle was not receiving the appropriate treatment to alleviate his condition. However, why was not Mr Ruddle receiving such help? Why was that treatment not available? We need to ask questions about the provision of mental health care in our establishments, and those answers must come, not just from Mr Wallace, but from the health department, so that we find out exactly what went wrong in this case. It is not that the treatment does not exist; it simply did not exist in this instance and we have to ask why.

At the Justice and Home Affairs Committee, Mr Wallace said that the matter would be referred to the Mental Welfare Commission for investigation. However, the question is not that difficult: the treatment either did or did not exist. We do not need another inquiry punted into the long grass before we can find out whether adequate provision was made. There is a crucial difference between a condition that is not treatable and the unavailability of treatment-that point will be raised time and again in the debate.

We also need to find out why the sheriff could not have considered the wider context. Is it possible to have a legal system that says that treatment is available and which tries to find a way of getting it, instead of a system that takes the narrow definition which means that, in the specific case in Carstairs, Mr Ruddle goes free because treatment is not available? That suggests a lack of clear thinking and we need to discover how to prevent such a situation in future. I look forward to that point being addressed in the summing-up.

The rights of the patient also have to be taken into consideration. To secure the rights of the patient, there has to be some emphasis on basic provision, instead of simply locking up the patient and throwing away the key.

My second point moves the focus away from the unfortunate Mr Wallace to the rest of the Executive and particularly to the Secretary of State for Scotland, as he was, and the First Minister, as he now is, as the time frame takes in several Administrations. We need to find out the position of the responsible medical officer. The responsible medical officer is obliged to provide regular reports to the First Minister-the then secretary of state- on the treatment that is received by patients in such a position. The secretary of state is also obliged to make sure that the patient is receiving adequate care on the recommendation of the responsible medical officer.

Were such regular medical reports received; and, if so, were they read and understood? Did those reports recommend additional treatment and highlight the lack of provision of adequate mental health care? If so, we are faced with two options. Either the Executive or the then Government decided that it would not do anything about the situation, which makes the entire Government culpable; or there was a problem with the reporting mechanism from the RMO upwards. We must resolve such a problem, because the RMO's reports provide the major check in the system to ensure the provision of proper medical care. If that system breaks down, we will have serious problems.

Photo of Duncan Hamilton Duncan Hamilton Scottish National Party

I would appreciate specific answers to my points about treatability and about the position of the responsible medical officer. My questions are not just for Mr Wallace but for the whole Government; it is about time that his coalition partners tried to buttress his unfortunate position.

Photo of Dennis Canavan Dennis Canavan Independent 10:16 am, 2nd September 1999

I am concerned about certain aspects of the emergency legislation. Much has been said and written recently about our Parliament getting off to a bad start; I remember that, back in May when we first convened after the election, I expressed regret and thought it rather ironic that our first vote was held by means of a secret ballot. It is also ironic that, if we agree to the motion, our first bill is to be passed by emergency procedure.

I understand the Executive's desire to get the legislation on the statute book as soon as possible, but I am concerned about the lack of opportunity for adequate scrutiny of the bill. On Tuesday at half-past 1, I went along to the document supply centre and then to the chamber office to get a copy of the bill, only to be told that it was not available. I did not manage to get a copy until yesterday-I suspect that most MSPs were in the same boat.

The new Scottish Parliament was supposed to herald a new era of open democracy, including more opportunities for pre-legislative scrutiny, which we hoped would lead to better-quality legislation. Yesterday, the business manager, Mr McCabe, told us that the bill had been produced after intensive discussion and preparation, but he failed to tell us with whom that discussion had taken place. As it is part of the business manager's job to ensure that the Parliament has adequate time to scrutinise legislation, it is ironic that Mr McCabe-who has been issuing press statements all week telling us how we should be doing our job-seems to be failing in that aspect of his job. I do not think that the time available to scrutinise the legislation is by any means adequate.

Photo of Tom McCabe Tom McCabe Labour

I do not know whether Mr Canavan is purposely forgetful, but he will be aware that the Parliament's provisions for emergency legislation allow for such legislation to be taken in one day. The business motion that the Parliament agreed to yesterday spread consideration of the legislation over two weeks, to allow maximum scrutiny of the bill while getting the legislation on the statute book and answering public safety considerations as soon as possible.

Photo of Dennis Canavan Dennis Canavan Independent

Nevertheless, if members read the timetabling motion, they will learn that there is by no means enough time for adequate scrutiny of the bill. The Executive says that there are over two weeks for scrutiny. For heaven's sake, we have today and one day next week for consideration of this emergency bill. That is not adequate by any means.

Later there will be an opportunity-albeit limited-to discuss the content of the bill. I am concerned about certain aspects. There is, understandably, great concern about public safety, but there is also concern about the implications for human rights of the legislation and about the reference to personality disorder and its definition.

What exactly is a personality disorder? If everybody with a personality disorder were a potential candidate for being locked up, that would be one way of reducing the membership of this Parliament. There would be more than a few objections-especially if the First Minister had the key.

Whether or not that is a real possibility, it is important that we are given the full opportunity to study and consider the implications of the legislation. My fear is that if Mr McCabe's emergency bill procedures motion is passed, it will be an early example of the Executive trying to use this Parliament as a rubber stamp.

The people of Scotland have waited nearly 300 years for this Parliament and I fear that historians might record that our first piece of legislation was passed with undue haste and inadequate scrutiny. That does not augur well for the new Parliament or for the quality of our legislation on mental health or anything else.

Photo of Margaret Ewing Margaret Ewing Scottish National Party 10:23 am, 2nd September 1999

I am one of the Ewings who is not qualified in the legal profession; I suspect that many members are in a similar position. Some of the arguments in the course of this debate address legal niceties. I speak as a layperson who is concerned about the legislation. I hope that we can address the issues in the way that many constituents would wish.

Throughout my parliamentary life, my experience of emergency legislation has been that it is always an extremely difficult source of legislation. We often repent at leisure after we rush through legislation. I recall many bills-I do not want to list them-which required hundreds of amendments at a later stage to ensure that the legislation was effective. A little word of caution to all of us is to ensure, when we consider emergency legislation and the provisions to introduce such legislation, that we make our best efforts to prevent the legislation coming back to haunt us.

Photo of Margaret Ewing Margaret Ewing Scottish National Party

I see the minister nodding in agreement. I sincerely hope that in rushing through this legislation we are not creating another loophole, which we will have to close at some future stage.

It is interesting that I follow Dennis Canavan, with whom I worked as a teacher for many years. He was the boss of the mathematics department, to which I was attached because of my interest in people with special needs. I was surprised that Dennis did not ask the question that I am about to put to the minister. How many drafts of the bill were written before the final version? It is important that we know that.

Photo of Jim Wallace Jim Wallace Liberal Democrat

If Mrs Ewing looks at the photograph in The Herald yesterday, she will see, on the bill that I eventually signed, that I crossed out the words "draft 12".

Photo of Margaret Ewing Margaret Ewing Scottish National Party

There were rumours that there were more than just a dozen-I do not know whether it was a baker's dozen-and, certainly, not all of us look at every picture in The Herald . It is important that we realise that the people who are responsible for helping us to draft legislation must go through a complex procedure to reach this stage.

In his response, I would like the minister or his deputy to advise us which organisations were consulted while the legislation was drafted, which was clearly a long process. I know, because of my interest in people with special needs, that many organisations have made strong recommendations and expressed strong concerns about the motion.

I echo the point about defining personality disorders. I am sure that people in the press gallery look down and say, "Those 129 people must have personality disorders or they would not be there." According to some of the articles that I read in the tabloid press, we are all here for some very strange reasons.

What is a personality disorder? It is a difficult definition. From my training in special needs, I know that every case is an individual case. I do not think that blanket legislation can define a personality disorder, and that is where I have a huge problem with the overall direction of the bill. Unless we look at the definition in terms of individual cases and of our ability to treat those cases, we will have to revisit the issue.

I would like a clear commitment that when the Millan and MacLean reports come before this assembly, they will be considered by the various committees of the Parliament because the reports touch on public safety, criminal law, health, education and a variety of other things. They should not be referred to a specific committee because it is essential that the boundaries are crossed.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

Thank you. There are problems with the electronic equipment this morning; the names of some members who wish to speak have not registered on my screen. Can I see a show of hands by those who thought that they had registered their wish to speak?

That is what I suspected. I am sorry, but none of you have been registered. There is a moral here. I was told that during the recess members who escorted children through the building allowed them to play with the equipment, which caused great concern. The equipment is temperamental and I am becoming temperamental trying to operate it. I am sorry that many members who should have been called have not been because their names were not on my screen. I will now do my best to rectify that.

Photo of Hugh Henry Hugh Henry Labour

On a point of order, Mr Presiding Officer.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

Yes, Mr Henry. Can we have Mr Henry's microphone on?

Photo of Hugh Henry Hugh Henry Labour

Is it that only machines in a certain part of the chamber are not working? There has been an imbalance of party in the speakers who were called this morning and yesterday.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

No. To give you a straight answer, there were no Labour names on my list. I kept on querying that, which is how we discovered that the equipment was not working. I do not think that the equipment is displaying political bias; it has simply not worked. I will do my best to rectify that in the last few minutes of debate, but it has caused a major problem.

Photo of Karen Gillon Karen Gillon Labour 10:29 am, 2nd September 1999

I will keep my comments brief. I am the constituency MSP for the state hospital in Carstairs and welcome the opportunity to participate in this debate. I thank the ministers for keeping me informed of developments.

As is obvious, people who work and live in and around the state hospital have considerable concerns about this case and the implications for future cases. Some of the reactionary, inaccurate comments made by Opposition members in the press during the summer did nothing to help those people or to progress the debate.

My concern now is that the legislation that this Parliament introduces should not only be in the best interests of the public, but give patients in the state hospital the care that they need and deserve; that balance is very important.

In the immediate aftermath of Mr Ruddle's release, I went to the state hospital with my colleague, Jimmy Hood MP, to meet the staff and patients. Morale among the staff was very low and people felt that they were being blamed. We need to examine that situation. The staff work hard in very difficult circumstances and, if anything comes out of this debate, it should be our support for staff who work in places such as the state hospital and how we can help them in their jobs.

I was concerned by press speculation that up to 15 other people were about to be released immediately into the vicinity of Carstairs or into the wider Scottish community. I had asked ministers about that and they had assured me that no cases were pending at that time, which was on the Monday or Tuesday of that week. During my visit, I asked the staff about other releases. They gave me a categorical assurance that the nature of the pending appeal was not the same as that of Mr Ruddle's and that different psychiatric help was needed by the patient in question. They said that the case was not the same and that it would be almost impossible for the individual concerned to exploit the loophole. Mr McLetchie is shaking his head, but I spoke to those members of staff and they are the experts.

Photo of Karen Gillon Karen Gillon Labour

I will not take any interventions. We have waited a long time to speak in this debate and I have only a short time.

Those members of staff are treating the patients in Carstairs. I asked them specific questions and they gave me the same information that ministers gave me. I welcome that. I believe that my information, which I was able to pass on to my constituents, was correct. We need to progress this debate and to stop being reactionary and trying to score political points. We must act in the best interests of the Scottish people and of the patients at Carstairs and introduce a new law that meets those requirements.

Photo of Phil Gallie Phil Gallie Conservative

On a point of order, Presiding Officer. For clarification, the previous speaker commented that interventions are a waste of time. Are not interventions for the good of everyone? They are part of, and can add to, a normal debate.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

You are quite right Mr Gallie, but in view of the problems that we have had, Ms Gillon was justified in pressing on. For the same reason, I call Cathy Jamieson next to try to rebalance the debate.

Photo of Cathy Jamieson Cathy Jamieson Labour 10:33 am, 2nd September 1999

The public's expectations for this Parliament are high. What we have read in the press during the past few weeks has been very unhelpful. It is particularly unhelpful that today's debate has been, to some extent, a ritual slagging-off, with people determined to have a go at individuals rather than attempting to focus on what needs to be done in terms of closing the loophole in the law. I hope that that ritual slanging match is now out of the way and that we can begin to focus on the issues.

I have for many years worked with people who have particular mental illnesses, who have been described as having personality disorders and who have other special needs. I am acutely aware of the human rights implications of this issue and of the implications for resources and the provision of treatment and support for those people.

I have a few points to make about why we need to deal with this issue as an emergency and about what we need to discuss in the rest of the debate. The real issue exposed by this loophole is public safety. Earlier, the Presiding Officer mentioned children; we should be aware of the fact that we have legislation that allows a public safety test to be applied when deciding whether to keep children in secure accommodation. I do not see why adults should be treated any differently. That is the point at issue this morning.

Common sense says that the loophole should be closed and that the First Minister should have a method of appealing against the decision of a sheriff where that decision is clearly not in the public interest. Common sense says that we need a definition of mental illness, but not so that we can sweep people with personality disorders-including some of us here-off the streets and lock them up. It is not proposed that the bill should do that-I would certainly not be in favour of it if it did. What is proposed is that we should deal with the current situation of a number of people and a loophole in a particular piece of the law.

The nature of an emergency is that we have to act quickly. I share some of Dennis's views about time for scrutiny, but if we are not seen to be taking some action we could be open to further criticism. Common sense says that we should get on with debating the principles of the bill and ensuring that it gets on to the statute book as quickly as possible. There will be checks and balances to consider and we have committees and other people who will deal with them. The bill will solve a particular problem on a particular issue. Let us get on with that and give the public some assurance that we are putting their safety first.

Photo of Donald Gorrie Donald Gorrie Liberal Democrat 10:36 am, 2nd September 1999

I speak as a fully paid-up member of the critics' trade union, but some recent remarks in the press have brought criticism into bad repute. There has been an extraordinary amount of hype and personalisation of the argument. That is bad in two ways: if the argument is hyped up, serious criticism on other issues is devalued and the chance of a serious examination of the subject is removed. The same applies to personalisation. If we go in for attacks on a minister, we reduce the amount of serious discussion of the issue. Duncan Hamilton made some good points on that issue.

There are important points, such as those that the previous two speakers made, that need careful consideration, but extraordinary criticisms do not help. Roseanna Cunningham has expounded a new doctrine that would terrify any football manager. Her doctrine is that if one is a team's recently appointed football manager, one is responsible for all the defeats suffered by that team before one took office. That is ludicrous.

Jim Wallace is being accused of accepting legal advice and trying to uphold the rule of law. The arguments against him are that he should have devised various sneaky tactics to get round the rule of law. Most of us would not want to live in a society that allowed such behaviour. The law is sometimes inconvenient or stupid and sometimes bad decisions are made, but we have to put that right in the correct way. That is what Jim Wallace is trying to do.

I appeal to people not to go over the top and personalise their criticisms, because that harms us all in the long run and reduces our chances of getting things right. Those who live by the sword shall die by the sword; those who live by hype shall die by derision.

Photo of Annabel Goldie Annabel Goldie Conservative 10:38 am, 2nd September 1999

If this unhappy episode has demonstrated anything, it is that whether the Executive likes it or not, this has been the political issue of the Parliament since its inception. That may not be palatable to the Executive, but it is the reality, not only to the Opposition parties but to the public.

In response to Mr Gorrie, I must say that during the whole debate, from early August until now, I did not detect any attempt to personalise attacks. All that we-and the Scottish nationalist party-were saying was that it is not for us, or for ministers or advisers, to become judge and jury. If we wish to test a law, we must ask a court to undertake that task. That dramatically illustrates the relevance and significance of the role of Opposition. It is not for the Opposition to go around kowtowing, apologising and promising not to be unpleasant or nasty. It is for the Opposition rightly to consider any given situation, particularly one of the gravity of the Ruddle case, and to determine whether the Executive has fully, responsibly and openly discharged every obligation upon it and explored every avenue available to it.

In that respect, there is one question to which I, personally, have not received an answer. I listened with interest to Mr Wallace's remarks. In his preliminary observations, he said that there was "no appeal, no interim interdict". Did Mr Wallace receive advice that, within a judicial review application, it is competent to include a conclusion for interim suspension of a sheriff's interlocutor?

We in the Conservative party have made it clear that we support in principle this welcome attempt to plug the loophole, and we certainly support the motion that it should be treated as emergency legislation. We shall co-operate in so far as we can in the enactment of this bill.

To be helpful to Mr Wallace, there are one or two areas where we genuinely offer contributions. I notice that the bill proposes the adoption of the framework of the 1984 act, which means a continuance of the application to the sheriff court. However, we ask Lord Hardie whether it is possible to consider an application to the minister. We realise that that may fall foul of the European convention on human rights, but we suggest that, given the immediacy of a grave situation such as that created by the Ruddle case, control might be more immediately achieved if there were the possibility of the procedure consisting of a straight application to the minister, with the ultimate safeguard of appeal to the court in the event of the applicant being dissatisfied.

Quite rightly, reference has been made to the bill's attempts to include personality disorder as part of the definition. That is a further issue that requires careful consideration.

It is not clear from the bill whether the burden of proof proceeds on the balance of probability or on proving a case beyond reasonable doubt. That needs to be clarified and is a fundamental issue that must be determined.

The Conservative party supports the emergency legislation. We deeply regret that we have to consider it in such a rush. None the less, we shall do our best to assist in facilitating its enactment.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party 10:42 am, 2nd September 1999

I wish to make it quite clear to Cathy Jamieson that the debate on the law is the next debate-the Presiding Officer made that clear. This debate examines how we got into this mess, and why we need emergency legislation. It is perfectly legitimate for members to run through the Ruddle case in particular, and to analyse what happened and who is at fault.

Listening to this debate, everyone is wrang but our Jim. Who has been put in the frame, as the lawyers would say-Noel Ruddle, smart-arse lawyers and legal loopholes? Let us examine the situation.

It is quite clear that Noel Ruddle was an evil man, but he is entitled to look after his own best interests. Others were elected to look after the best interests of the public, and they failed. Smart-arse lawyers just used the law to win Mr Ruddle's case. You, Mr Wallace, were represented and you have lawyers-two are sitting next to you. Ruddle's lawyers won, your lawyers lost and the public in Scotland and elsewhere paid the price. A legal loophole? This matter has been discussed and debated for 40 years, and it was debated in 1984 when the Mental Health (Scotland) Act was debated. It is not a legal loophole-it is a huge abyss that has been staring us in the face, in terms of jurisprudential and psychiatric discussion.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

I will not take any interventions. This is a winding-up speech, and Mr Robson will have to remain wound up, if that is how he is feeling.

How did we get into this mess? Let us run through some of the facts. As Lord Hardie will wind up for the Executive, I produce what I will call Opposition production No 1-the sheriff's decision from Lanark. The report clarifies that Mr Ruddle was of above-average intelligence and had no previous history of mental illness. I think that the Tories should take some cognisance of that.

In 1991 and in 1992, Mr Ruddle was allowed to be sent to the state hospital, as opposed to being prosecuted, and no stops were pulled out. That was despite the fact that, at one stage while he was on remand in Barlinnie awaiting possible trial and consideration, he was seen by a psychiatrist and presumed to have no mental illness. Indeed, all the medical evidence is that he did not have a history of mental illness-he had a history of psychopathic disorder.

As well as Conservative members saying that Labour should have tried harder in 1998 and 1999, their law officers-Mackay, Cullen or whoever their predecessors were-should have tried harder in 1991 and 1992. Perhaps it is coincidental that this evil man's parents were both psychiatric nurses. Did that not flag up a problem for the Conservative Administration? Should not the Conservatives' medical or legal teams have monitored that?

I will continue to run through what went on. The fact is that the sheriff made it clear that this man should have been monitored, yet he was not. He seems to have made an improvement while in Carstairs. He makes such an improvement that he gets himself a girlfriend and has a party during his incarceration. The psychiatrists examine him and it becomes clear that he fits the criteria for release.

Lord Hardie, I refer you to paragraph 7.16 page 10 of the sheriff's judgment.

"On 9 April 1998, the applicant was examined," and-narrates the people-

"the applicant was suffering from personality disorder".

The judgment goes on to describe what that personality disorder was. It then states that the "medical treatment in hospital was not likely to alleviate or prevent a deterioration of his condition".

A recommendation was made to discharge Ruddle. The final sentence reads:

"The applicant"-

Mr Ruddle, on 9 April 1998-

"was told of the Committee's view that he should be discharged."

In April 1998, Ruddle knew that the authorities were saying that he should get out.

The judgment also makes it clear that the respondent was also told of the committee's view.

The respondent is your department, Lord Hardie. You were told that Ruddle was being recommended for release. Ruddle knew in April 1998 that the psychiatric view was that he was to be released, and you did nothing. You did not call for the Mental Welfare Commission for Scotland-Mr Robson is not here to comment on that. The MacLean committee was not initiated in April or May 1998. You sat on your hands and did very little. Lo and behold-what happens? When does the situation move on? The case did not start in August 1999, as Ruddle's appeal was lodged in the Lanark sheriff court in February 1999. What action was taken between April 1998 and February 1999? You did nothing.

Lord Hardie, from February 1999 onwards, you seem to have dealt with the situation through your legal team and to have done nothing. It was clear that Mr Ruddle met the criteria for discharge, and that is why it was granted. You gave no consideration to an attempt to alleviate the problem by offering a conditional discharge, which, I understand, would have been acceptable to Mr Ruddle and his advisers. We could, at least, have seen some restrictions placed on him. What happened? In August of this year, he was released at two minutes past 10, and you did not even have a bed available for him. He was able to go walkabout.

This situation is categorised and classified by total mismanagement, starting in 1991 and 1992, in terms of how Ruddle was prosecuted and dealt with at that time, continuing through the Labour Administration in post-election 1997, to April 1998. Lord Hardie, you were aware that he was being recommended for discharge and your predecessors did nothing. In February of this year, you were notified that Ruddle was going for his appeal and that he would appear to meet the criteria, as the psychiatrists had told you in April 1998-and you did nothing.

This has been a shameful situation. Lord Hardie, if you will not take the blame and resign yourself, you should sack your legal team because they have made a mess of it.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

I remind members that, in this chamber, "you" refers to the occupant of the chair. I am not responsible for any of the things of which I have just been accused.

The Lord Advocate (Lord Hardie):

Sir David, I do not accept the criticism that has just been levelled against my office and my department by Mr MacAskill. That criticism proceeds upon a complete misunderstanding of the factual position and, had Mr MacAskill bothered to concentrate on the judgment and to attend to the facts-as opposed to the hype and the hyperbole in which he has indulged today-we might have got further along the road.

The fact is that it was not the responsible medical officer who, in April 1998, recommended Ruddle's discharge-it was a medical sub-committee. The RMO at that time was of the view that he was treatable, and remained of that view-[MEMBERS: "He changed his mind."] Will members please let me finish. The RMO remained of that view until March 1999, after the appeal had been lodged.

I do not want to exchange factual details with Mr MacAskill. There are more important matters to be discussed. There are few areas of law more complex than the interaction of Scotland's criminal and mental health laws. That complexity stems from the legislation.

The Lord Advocate:

I will not give way at the moment. I have a limited time-let me see how I get on. There are important principles at stake. On the one hand there is the public's wish for protection; on the other there are the rights to help and treatment of people who are ill, and their aspirations to return to the community. Those rights and the interests of the different parts of society have been referred to by members, including Cathy Jamieson and Karen Gillon.

Mental illness is a common condition that affects a large minority of Scots, who suffer its afflictions without, in most cases, being a danger to anyone else. I had hoped that, today, we would avoid the frenzy of recent weeks and concentrate on the small group of detained patients for whom we have a collective responsibility to act. Unfortunately, having heard some speeches-particularly that of Roseanna Cunningham-it is clear that that has not proved to be the case.

The Lord Advocate:

In my closing remarks I want to revisit three areas: the history of events, the Parliament's key role in the overhaul of Scotland's mental health legislation, and the urgency to enact legislation necessitating the treatment of this bill as an emergency bill.

We have heard suggestions today from Conservative and Scottish National party members that we could or should have acted differently, and that by doing so we would have secured the continued detention of Mr Ruddle.

There have also been suggestions in the past few weeks-they were repeated today- that the Executive showed no concern for the situation until it was spurred into action by the media, or perhaps by members of Opposition parties, after the issue of the judgment on Monday 2 August. Indeed, Mr McLetchie even accuses us of complacency. Nothing could be further from the truth.

Before I deal with what we did to protect the public, I would ask this Parliament what the Conservatives did in that regard. Despite the promises Lord James Douglas-Hamilton made to the Scottish Grand Committee in July 1996-which were referred to earlier-to ensure that the arrangements for discharge of patients from psychiatric hospitals took due account of public safety, nothing was done. Nor is there any evidence of demands by the Conservatives for urgent action prior to, or even after, the House of Lords decision in the Reid case-not even from the previous law officers. Where were they then?

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

On a point of order, Mr Presiding Officer. I would like to point out that the Lord Advocate-presumably an independent law officer-appears to be making a highly politically partisan speech. [Applause.] I appreciate the difficult position that the Lord Advocate is in, but is it entirely correct for someone who is a law officer, and therefore presumably independent, to make such a speech?

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

That is a point of argument; it is not a point of order for me.

Photo of Lord James Selkirk Lord James Selkirk Conservative

Does the Lord Advocate accept that in the 10 years during which I was involved with home affairs there was not a single case in which a prisoner-a patient-was released in the same way that Ruddle has been?

The Lord Advocate:

I accept that, but Lord James did nothing, despite his promises to the Scottish Grand Committee in 1996. In contrast to the lack of activity on the Conservatives' part, the Labour Government-

Photo of Tricia Marwick Tricia Marwick Scottish National Party

On a point of order, Mr Presiding Officer. The Lord Advocate is clearly making a political speech. He is here as an independent-

The Lord Advocate:

The Labour Government, and thereafter the Scottish Executive, acted promptly at every stage. In 1997, I instructed the appeal to the House of Lords in Reid-an indication that I am prepared to act to protect the public where it is possible to do so within the law. Of course I did not criticise the previous Government or its law officers for failing to introduce legislation prior to their losing the case in the inner house. Doing so would have been as absurd as the position adopted by critics of the Scottish Executive in the past few weeks. In December 1998, following Reid, the Millan committee was established, and the MacLean committee was established in February 1999.

The Lord Advocate:

Prior to Ruddle lodging his appeal, another similar appeal had been defended by the secretary of state and was ultimately refused. Ruddle was defended on the basis of evidence similar to other cases, which had been successfully defended. All of them involved conflicting evidence that the sheriff was required to assess. Until the decision was issued there was no basis for anyone to conclude that Ruddle would succeed.

What about events after the Ruddle decision became known? It is not customary to reveal the extent of the law officers' involvement in particular legal questions, but we have made an exception in this case. I hope to address the point raised by Miss Goldie in this regard. An embargoed copy of the sheriffs judgment was issued to the Scottish Executive and to Mr Ruddle's solicitors on Friday 30 July, in accordance with normal practice. The solicitor to the Scottish Executive immediately sent a copy of the judgment to my legal secretary, and to the counsel who had conducted the appeal on behalf of the secretary of state-obviously to consider its implications.

I take great exception to the suggestion that we did not realise that this was a public confidence issue. Of course we realised the significance of the decision. On the Friday, my legal secretary and a principal solicitor in the Scottish Executive experienced in such cases and I each independently considered the judgment-independently from each other. Our primary concern, and my instruction to the other solicitors involved, was to look at it from the point of view of the protection of the public. We sought any lawful means by which Mr Ruddle could be detained after 2 August. We each concluded that there was none and, moreover, we separately concluded that there was no basis on which we could successfully seek a judicial review. To answer the specific point, ministers were advised that it would be possible, in the context of a judicial review, to seek an interim order.

Photo of David McLetchie David McLetchie Conservative

I accept that the advice you gave the minister in good faith was that an application for judicial review might not have been successful. Was it your advice that there was no stateable basis for a review? Was that your advice-that there was no stateable basis, no remotest possibility that the Crown would win?

The Lord Advocate:

The advice was that there was no prospect of a success in the appeal.

Photo of David McLetchie David McLetchie Conservative

As you perfectly well know, that was not the question. That is an assessment of the prospects of success.

The Lord Advocate:

The advice given was quite clear. There was no prospect of any success and no merit in going ahead with a judicial review. As a result of that-as a precaution-the police were alerted by the Crown Office on Friday to enable them to take special precautions to secure the protection of the public after Monday. I was not content to leave matters there, and the Solicitor General was asked to consider the judgment on his return home on the Saturday. A meeting was arranged on the Saturday, with the Solicitor General, me and the legal secretary, and the same conclusion was reached.

I note that Mr McLetchie referred to the fact that his advice is that there could be no guarantee that this would be successful. Our position-and the position of all lawyers involved in the case until the Monday-was that there were no prospects of a successful judicial review and that there was no lawful basis for securing the detention of Ruddle after the Monday.

Our view was confirmed on the Monday in a note of preliminary views of counsel. Five people independently reached the same conclusion. Members should bear in mind the fact that we were seeking legitimate means of continually detaining Ruddle.

The First Minister was advised on Sunday 1 August. Since then, there has been prompt action. I am not prepared to act without a sound basis in law. Nothing that could have been done would have secured Ruddle's detention, even if one were to put in a bogus judicial review petition.

On the role of Parliament, we must get the mental health legislation right. I look forward to the reports of the two committees that will instruct that.

It is necessary to act today, as an emergency. I welcome the support of Mr McLetchie and Ms Cunningham in that regard. Within 48 hours of the release we committed ourselves to fast-track legislation and we are here today to consider it.

The Lord Advocate:

In view of the urgency of the matter, I invite members to vote for the motion.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

I allowed the Lord Advocate a little injury time because of the points of order.

The question is, that motion S1M-109, in the name of Mr Jim Wallace, be agreed to.

Motion agreed to.

The bill is referred to the Parliament.

The next item of business is Parliamentary Bureau motion S1M-110, in the name of Mr Tom McCabe, on the timetabling of the Mental Health (Public Safety and Appeals) (Scotland) Bill. This motion will be taken without debate.

Motion moved,

That the Parliament agrees that (a), all Stages of the Mental Health (Public Safety and Appeals) (Scotland) Bill shall not be taken in one day, and (b) that the time available for the Stages and debates at each of the Stages should be as follows:

Stage 1 - debate on Thursday 2 September 1999 to last 1 hour 30 minutes; Stages 2 and 3 - debates on Wednesday 8 September to last 3 hours 20 minutes- [Mr McCabe.]

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

The question is, that motion S1M-110, in the name of Tom McCabe, be agreed to.

Are we all agreed?

Members:

There are no lights on the consoles.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

Hold it for a moment. Can we get the voting system up?

I will wait a minute to see if we can get the machinery working; if not, we will have to have a roll-call vote.

I will take this chance to say that members reacted with some hilarity when I mentioned the question of visitors during the recess, but it is a serious matter. The machinery is temperamental and I ask members to take that point seriously and not to allow visitors to fiddle with the machines.

Members:

We cannot hear you.

Photo of David Davidson David Davidson Conservative

On a point of order. Is it possible that we could get on with the vote on a show of hands?

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

I could take a show-of-hands vote: that means that members' votes will not be recorded in the Official Report , but if members are happy with that, I am quite content.

Members voted by show of hands.

Motion agreed to.

Photo of Tricia Marwick Tricia Marwick Scottish National Party

It is not a point of order, Presiding Officer. I am seeking your guidance. I raised what I thought was a genuine point of order about the fact that the Lord Advocate had strayed way beyond his role. Can you advise me, Presiding Officer: if that is not a matter for you, who is it a matter for?

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

It is not actually a point of order, but let me explain. The Lord Advocate was speaking on behalf of the Executive in winding up that debate-he was speaking in that capacity.

Photo of Nicol Stephen Nicol Stephen Liberal Democrat

On a point of order. I wonder whether it is possible to record that only Dennis Canavan and Tommy Sheridan voted on the show of hands against the timetabling motion. That would show, on behalf of all other members, the manner in which the vote was taken.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

It will certainly be recorded now that you have mentioned it; it will appear in the Official Report .

Can I appeal for members' help. In view of the difficulty that we are having with the machinery, I can tell members before I start the second debate that so far, other than the openers and closers of the debate, I have two Labour names, one Liberal Democrat, three SNP and no Conservatives on my list. If that is correct, that is fine, but if members are in doubt, they should speak to their business managers, who will in turn speak to the clerks, in order that I do not leave people out, as unfortunately happened in the previous debate.

We now move to the debate on stage 1 of the Mental Health (Public Safety and Appeals) (Scotland) Bill. The debate will last for an hour and a half. If I am correct about the number of speakers, speeches can be five minutes in length, but my deputy and I will review that in the light of the number of members who wish to speak.

Photo of Jim Wallace Jim Wallace Liberal Democrat 11:08 am, 2nd September 1999

I listened to the remarks of Mr Canavan in the previous debate. I am sure that he said what many of us were thinking: that when we set out to establish the Scottish Parliament and were looking forward to a legislative programme, none of us envisaged that the first piece of legislation would be this Mental Health (Public Safety and Appeals) (Scotland) Bill, and that it would be one for which we would be using emergency powers. Because of the concerns expressed in the debate that has just taken place, it is important that we now proceed with this bill and with considering its principles.

This is an opportunity for us, as a Parliament, to debate in principle the purpose and provisions of this four-section bill. Although we are proceeding on an emergency basis by agreement, this stage 1 debate is no different from that for other bills that will come before Parliament.

I would like to start by setting out clearly the intention and principles behind this bill. Experience has shown that when the courts come to interpret legislation, it is enormously helpful to them to understand clearly what was in Parliament's mind when passing it.

The main aim of the bill is to close a loophole that may allow a restricted patient who is detained in hospital to appeal successfully against his detention on the grounds that, although he continues to have a serious mental disorder and may be considered a serious risk to the public, he is not, in a legal sense, treatable.

In the most recent interpretation of the relevant sections of the Mental Health (Scotland) Act 1984, the House of Lords judgment in the case of Alexander Reid, about which we have already heard a number of comments this morning, the treatments which may define treatability were defined to be broad. However, treatability was established as the first test which a sheriff has to consider in an appeal from a patient suffering from a mental disorder. Public protection may be considered, but only once this first test is met. If, as in the Ruddle case, the sheriff finds that the patient is not treatable, the law, as it stands, does not allow the sheriff to proceed to consider issues of public safety. The purpose of this bill is to reverse that and to put public safety first.

The main principle of this bill is that public safety will become the first and paramount test when mentally disordered patients who are subject to restriction orders appeal to the courts for discharge. That will be achieved through having a clear direction to sheriffs on the face of the bill. There are also flanking provisions with the same broad aim. Ministers will apply the same public safety test that they have used for many years. Ministers of the Scottish Executive and restricted patients will have a new power of appeal against the sheriff's decision, and there will be a new power to detain patients in hospital for 14 days pending consideration of whether there will be an appeal. If there is an appeal, they may be detained thereafter until the appeal is concluded.

That is the broad picture of the bill. I shall now examine the sections one by one.

Section 1 provides that, where a restricted patient appeals against his detention, the sheriff must first consider whether the patient suffers from a mental disorder that makes it necessary to continue detention to protect the public from serious harm. If the answer is yes, the sheriff must continue the patient's detention. The burden of proof will rest on Scottish ministers. Section 1 applies a similarly worded requirement of Scottish ministers when they consider the discharge of a restricted patient. The amendments are applied to existing appeals, when the hearing takes place on or after 1 September 1999, as well as to future appeals.

Section 2 creates a new right of appeal, against the decision of the sheriff, to the Court of Session and the House of Lords. The appeal, which may be on a point of fact or of law, may be made by Scottish ministers or by the detained patient. The Court of Session will be able to order the continuing detention of the patient until the appeal is decided.

Section 3 clarifies that the definition of mental disorder in the Mental Health (Scotland) Act 1984 includes personality disorder. Section 4 contains the short title and the commencement of provisions. The main part of the act will come into effect immediately upon royal assent, but the new right of appeal will be brought into force by a separate commencement order, to allow time for the procedures to be agreed. We anticipate that that will be done promptly.

As Parliament knows, this bill has been prepared at speed, but we have crafted it carefully by applying three key tests. The first test is whether the bill is essential. We believe that it is. If appeals for absolute discharge by mentally disordered patients whose release could be dangerous to the public are to be effectively opposed, we need this bill. The debate earlier today made the parliamentary will on that plain.

The second test is whether this bill will be effective. We believe that it will, as it is precisely targeted on the reasons why the sheriff allowed, and we could not prevent, Mr Ruddle's release a month ago. The third test is whether this bill complies with the European convention on human rights. I assure Parliament that we have taken every step to ensure that that is so. Our judgment is that the bill goes as far as we can in securing public safety powers.

I stress again that we will revisit Scotland's mental health legislation during this Parliament. Armed with the MacLean and Millan recommendations-and taking the point that was made by Mrs Ewing previously-we will ensure a full opportunity for the committees of this Parliament to consider these proposals. We plan a substantial revision of this complex area of law. I assure members that, if we find that the measures in this bill will bear improvement in the longer term, there will be an opportunity for change.

The following debate will be one of three stages for consideration of the bill. Although this is emergency legislation, we have allowed nearly a week between stage 1 and the other two stages so that there is time for reflection, and in case members want to lodge amendments. When those amendments are considered, it is important that we should remind ourselves of the need to maintain the assurances that we have given on compliance with the European convention on human rights.

Speed of preparation has ruled out formal consultation, but I was able to brief the principal Opposition spokesmen late last week on the provisions of the bill. I record my appreciation of their willingness to help us to deal with this legislation on a fast track. In accepting the general principles of the bill, they reserve the right to examine it in detail and to provide the kind of parliamentary scrutiny that we expect from responsible Opposition parties.

As well as informing Lord MacLean and Mr Bruce Millan of our proposals, we have been able to brief key expert bodies: the Law Society of Scotland, the Mental Welfare Commission for Scotland, the Scottish Association for Mental Health, and the Scottish division of the Royal College of Psychiatrists. We have assured them that, although we are determined to close the Ruddle loophole, this bill will not encroach further into territory where the MacLean and Millan committees are already at work. That assurance has been strongly welcomed.

That outlines the principles of the bill that we invite Parliament to endorse today. I look forward to hearing the contributions of members, and to considering the bill in greater detail next week. I commend the bill to Parliament for support.

I move,

That the Parliament agrees to the general principles of the Mental Health (Public Safety and Appeals) (Scotland) Bill.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party 11:17 am, 2nd September 1999

I have already stated my concern that we are in the highly unsatisfactory position of having to legislate in an emergency manner for an area of law that has serious implications for human rights. The SNP is supporting this bill, as public safety must be at the heart of all justice legislation. However, as we are legislating in an area that involves the liberty, or otherwise, of individuals, despite the emergency procedures it is the duty of everyone in this chamber to be vigilant.

I want to go back a little way in this saga, to 1994, and to references, which are contained in the sheriff's judgment on the Ruddle case, to the treatment that was available or unavailable to Mr Ruddle in Carstairs. Pages 6 and 7 of that judgment make it clear that Mr Ruddle and his doctors were seeking treatment for what they considered to be his problems. In their view, treatment was out there somewhere; the problem was that it was not available in Carstairs. That issue was raised over a period of years by the medical officer who was responsible for Mr Ruddle. At one point, the possibility was raised of a transfer to Broadmoor, where it was considered that there was an appropriate unit for Mr Ruddle's treatment. That again emphasises the fact that treatment was available, and that the problem was one of access for Mr Ruddle.

Carstairs hospital did not have the means to treat Mr Ruddle. Nevertheless, he could have been treated even if that treatment had to be elsewhere or bought in. It was the lack of available treatment that led to Mr Ruddle's release, not the fact that he was untreatable. It is from that perspective, bearing in mind the need for compliance with the European convention on human rights, that I view the legislation before us.

Section 1 proposes to amend the powers that are available to sheriffs and ministers under section 64 of the Mental Health (Scotland) Act 1984. It includes a new test of public safety that must be satisfied when deliberating on the release or continued detention of restricted patients.

The SNP has no problem with that and I am sure that there is widespread agreement and relief across the chamber that the bill addresses that point. My concerns, however, are whether the bill actually tackles the key issue of availability of treatment, because it seems to be absent, and whether therefore it is compliant with the European convention on human rights. There is no mention in the bill of any measures that would ensure that patients have access or the right to access treatment where that treatment exists. Indeed, there is no real health input into the bill, which is curious, since in the Ruddle case it seems that it was a failure in the provision of mental health services rather than the actual law that led to the appeal and, subsequently, to today's legislation.

The responsible medical officer assigned to Ruddle had sought for five years to arrange suitable treatment and only failed to do so because of a lack of resources. The bill is silent on what mental health resources, if any, will be made available to patients detained under the new legislation. Will the minister now give an absolute assurance that where medical treatment is requested and is available, the mental health authorities will accede to that request?

Section 1 also raises serious human rights questions. Article 7 of the European convention on human rights specifically guards against retrospective criminal legislation. Yet the bill is changing the goalposts for those who were convicted before 1 September this year. The rules governing appeals and discharge will be much tighter following the new legislation than they would have been at the time of such a person's conviction. I seek the reassurance of the minister that that aspect of section 1 does not amount to a breach of article 7.

Section 1 may further open the bill to challenge in that it effectively authorises preventive detention. Let us say that a person suffering from a mental disorder commits an offence and is dealt with by way of a hospital order; he is then cured of that disorder and would normally expect to be discharged. The bill means that if the same person suffers from a second but different mental disorder, he can be detained if it is deemed that he presents a danger to the public, even though he had not committed a second offence. The key phrase is "presenting a danger to the public". That may be considered to be an appropriate way to proceed when someone has already shown a propensity for violence. We would probably all agree on that. Again, I seek an assurance from the minister and an explanation of the advice given on whether that situation, where someone is detained even though he has effectively served his time and committed no new offence, is in contravention of article 5 of the ECHR, which states that everyone has the right to liberty and security of person.

Section 2 amends the Mental Health (Scotland) Act 1984 by introducing a new right of appeal to the Court of Session against the decision of a sheriff. I question why that part of the legislation is to be enacted at some point in the future at the discretion of the minister and not at the same time as the other sections of the bill. Perhaps a further explanation could be given.

I am also concerned that section 3, in extending the definition of mental disorder to include personality disorder, makes it too wide. As has been said, a lot of personality disorders do not exhibit themselves in aggressive or violent behaviour. Would it not be appropriate to qualify personality disorder with that kind of phrase in order to ensure that we do not end up in a situation where people suffering from any personality disorder feel threatened or vulnerable? We would not want to cause fear and alarm when it was unnecessary.

I welcome the eagerness of the Executive to tackle the loophole in the law in order to provide protection for public safety. I regret, however, that the first bill is emergency legislation. I hope that the extensive advice on the human rights implications has been taken and I trust that the minister will be able to provide the specific reassurances that I have asked for.

Photo of Phil Gallie Phil Gallie Conservative 11:24 am, 2nd September 1999

My party will certainly support the bill and ease its way as far as possible. That does not mean that we have no reservations. I give notice that we will almost certainly lodge several amendments that could be taken, in Westminster terms, as probing amendments. However, our main aim will be to clarify and give backing to the bill as it goes through.

Why do we need the bill? Our belief is that the law is about the protection of the public first and foremost. People must have confidence in the law. There have been far too many incidents where public confidence has been lost and where we could say that people have taken the law into their own hands: for example, the situation last week with an Aberdeen farmer, or in Kilmarnock a year or two ago when a man was jailed effectively for protecting his property, and very sadly a situation in Norfolk where someone has died.

Such incidents all have an effect on the public perception of the law, and we as politicians are charged with dealing with that. We look at the technicalities of the law, but there is a role for lay opinion. Today, many people have spoken who are practised in administering the legal system. I make no apologies for not being as well equipped as Lord Hardie or others who have spoken on the detail of the law. The way of the great legal minds is to interpret, we are told, the intentions of the politicians. I feel that sometimes the findings in our courts are in contrast to that.

There is no doubt that great anxieties were caused by the release of Mr Ruddle. Although I frequently criticise them, I would commend the media for that. They may not have got it all right and they may have been over the top in some of the criticism, but I think that, with the help of Opposition politicians, they built up a head of steam that added urgency to how ministers dealt with the situation.

Despite all the comments about a fast track and it always having been the intention of the Executive to bring in something at the beginning of this parliamentary session, in an article of 26 August the Lord Advocate said that there was no guarantee that a fast track would be used. That backs up some of the points made by David McLetchie when he suggested that there was some confusion between 4 August and today on the approach to be taken. That was the issue that was addressed in earlier debate and I will try to focus-as you would expect me to, Mr Reid-on the bill.

Photo of Phil Gallie Phil Gallie Conservative

Beat you to it, Mr Reid. We do accept that the bill is in part a stopgap measure to address an urgent need. I welcome the fact that the members of the Parliament have given it full backing. We must remember, however, that the MacLean and Millan committees are currently meeting, and I believe that it is important that the Parliament lays down the criterion that protection of the public comes first, as the Minister for Justice has said, and that the committees take that on board in their findings. When they report, perhaps there will be a need to get rid of this bill and provide another; perhaps we can build upon it from what we learn from MacLean and Millan. I say to them to take regard of the message coming from Parliament.

The Parliament has greater difficulties than Westminster would have in putting through a bill such as this, because the European Court of Human Rights is far more restrictive in regard to legislation than at Westminster. There, legislation can be progressed and ultimately be compared against the implications of the European Court of Human Rights' findings.

Regarding the bill itself, I have concerns over some points. Proposed subsection (A1), in section 1 of the bill, states that an appeal shall be refused:

"in order to protect the public from serious harm".

What is serious harm? Can it be defined? Will this in future create another confusion in the mind of a sheriff? I would like clarification on that, if not today, in the debates that follow next week.

The burden of proof lies with the Scottish ministers. Who will they rely upon to provide the evidence for that burden of proof? I suspect that they will rely upon those with medical knowledge, and perhaps those employed at Carstairs, if a situation like the Ruddle case develops again. However, there may be some need for an independent medical mind to be brought to bear on this matter, so next week we will be seeking further clarification on whom the ministers will obtain information from.

A possible fundamental measure could be a return to a situation that existed before the 1984 act was enacted, when secretaries of state took decisions on the release of individuals like Mr Ruddle from Carstairs and other institutions without reference to the courts. There may be some merit in re-examining that situation. It may contravene the European convention on human rights, but I feel that, given that the public wrath in the Ruddle case was turned against ministers and not against the sheriff, there is some merit in recognising that if ministers are to be the fall guys, they should take responsibility. Perhaps they are in a position to judge who should come out of institutions like Carstairs. I know that that would be a major change, and that it cuts across what my party's Government did in the 1984 act, but let us face it: time moves on, we examine situations as they develop and we act accordingly.

Photo of Dennis Canavan Dennis Canavan Independent

I would welcome some clarification. Is Mr Gallie seriously suggesting that this Parliament should pass legislation that is contrary to the ECHR? Is he also suggesting that a politician is better equipped than a judge to decide whether someone should be locked up?

Photo of Phil Gallie Phil Gallie Conservative

I am not suggesting that we cut across the ECHR, because that would cut across the premise upon which this Parliament is built. I said that it would be totally dependent upon the link to the ECHR. In this case, I am suggesting that the courts have already made a judgment in determining where an individual should go, and to what extent a crime has been committed, and on that point there may be a case for a minister taking a decision on the ultimate in public protection. However, I repeat the point that this measure is one for debate. We will make the proposal, and it will be up to others in this Parliament to demonstrate the reasons why it would not be wise.

I think I am receiving an indication from the Deputy Presiding Officer that my time is up. I will conclude by saying that we have some concerns with the retrospective aspects of this bill. We hope that the bill will stand firm and we will support it. I am sure that my friend Mrs Lyndsay McIntosh will give a Conservative view on the issue of personality disorder.

Photo of Lewis Macdonald Lewis Macdonald Labour 11:34 am, 2nd September 1999

I welcome the Executive's prompt action in bringing this bill before Parliament and addressing the widespread concerns raised, not only by the Ruddle case, but by a number of other cases over the years.

Like Margaret Ewing when she spoke in the earlier debate, I speak not as a lawyer, nor as a psychiatrist, although I recognise the importance of the perspectives that those professions will bring to bear when we discuss amendments next week. The legal and medical professions have a vital interest in this area of law, and we should draw on their expertise in getting the balance of this bill right. I am sure that we will do that, but in considering the principle of this bill, it is important to recognise that the issues of definition, which will exercise legal and medical minds, are not issues that always have as much meaning for the public.

The professional perspective of criminal justice social workers, who work on a daily basis with offenders and potential offenders, including those at large in the community, should also be considered. I suspect that every social work department in the country has at least one or two individuals on their books whose behaviour is disruptive and chaotic, and who may have been in mental hospitals, but who are not currently diagnosed as mentally ill. Of those people who have some kind of anti-social personality disorder, only a small minority may be considered seriously violent or dangerous individuals, but when those few walking potential catastrophes are at large, they pose a constant threat to the lives, liberty and rights of others, and they demand constant resources and surveillance from social workers and the police. They divert resources from other needs.

Two years ago in my constituency in Aberdeen, a young child was abducted and murdered by a man who had been through the criminal justice system. He had attacked children before, been to jail and been let out again, and had not been identified and detained as someone who would pose a threat to others in future, as many of my constituents believe he should have been. After the death of that child the community was desperate for reassurance on the safety of its children. It welcomed the measures that were introduced in the Crime and Punishment (Scotland) Act 1997 and in the Sex Offenders Act 1997 to restrict the liberty of sex offenders. I believe that it will also welcome the principle of this bill, in making public safety adequate grounds for continuing detention, in order to reduce the risk of other dangerous men being released into the community when they should not be.

Photo of Robert Brown Robert Brown Liberal Democrat 11:37 am, 2nd September 1999

I, too, support the principle of the bill. Having listened to the debate on Mr Wallace's motion, I cannot help but feel that there is an element of split personality among those Opposition members who were baying for blood in the earlier debate, but who have now swung round to the other side and are, rightly, examining the human rights issues. The tenor of this debate has been much more satisfactory than that of the previous debate.

In what I thought was one of the more distinguished speeches of the earlier debate, Margaret Ewing made some valid points. Like a number of members, she pointed out that in meeting the need for urgent legislation we should not create further loopholes. We must be aware of that in our examination of this bill. The other point, which others also touched on, was that there were worries on the other side of the fence. She mentioned special-needs individuals and people working in that sector who were concerned by the speed with which the legislation was going through.

It is important that we study the principles of this matter in a balanced way. Phil Gallie said that the first duty of the law was to protect the public. That is true as far as it goes, and it is a major duty, but the first duty of this Parliament is to protect the liberty and the safety of the public. We should have particular concern for liberty. There has been some suggestion that the European convention on human rights is some sort of inconvenient addition to the hoops through which we have to go in this matter. I welcome the fact that the European convention is now effectively incorporated into Scots law; it is an intrinsic part of our domestic law and this Parliament has to have regard to that. We should be looking to deal with the spirit and the letter of the convention.

When Mr Wallace referred to the bodies that he had consulted, I did not hear whether he had consulted anyone in the human rights field outside the Executive-the Scottish Human Rights Forum and Professor Alan Miller, for example, who are experts in this matter. I seek an assurance that people outside the Government who have expertise and who may take a critical view will be consulted, if they have not been already. It is important that the Executive sets a standard in this matter that will be followed in future.

The point has been made that most people with mental illness are not a danger to anyone. That is an important, because, in dealing with people at the extreme end of the spectrum, we do not want to create human rights problems for others who may or may not be a nuisance to the public.

I want to consider how personality disorder is defined. There is no definition of it in this amending bill and I am not certain that there is one in the original Mental Health Act (Scotland) 1984. We should consider closely what the phrase covers and exactly what we intend to deal with.

Roseanna Cunningham mentioned treatment. The availability of treatment is one side of the coin, but another question is whether treatment is compulsory. In professional practice, I came across the disturbing results of people being treated with psychotic drugs. As an unpleasant side effect of those drugs, they ended up suffering from a problem called tardive dyskinesia, which is a sort of spasticity. It is important that we consider the fact that people who are detained under mental health legislation to some extent have their rights taken away. We must ensure that we strike the right balance in determining how they are dealt with under those semi-custodial arrangements.

Those are all major issues and we must get the balance right. Some good points have been made in the debate and I hope that, as we discuss the bill in detail, we will continue to dwell on those issues and produce legislation that will stand the test of time until the full review. We do not want to produce hasty, loophole legislation that does not do the trick and raises more questions than it answers.

Photo of Michael Matheson Michael Matheson Scottish National Party 11:42 am, 2nd September 1999

A number of members have highlighted the importance of public safety. That is reflected by the fact that the minister has chosen to include public safety in the title of the bill. However, we must ensure that we achieve a balance between public safety and the human rights of the individual.

The bill is a major departure from the thinking that was current when the Mental Health (Scotland) Act 1984 was introduced. If we create additional legal measures to detain people in hospital, it is essential that we provide those people with treatment while they are in hospital. I recognise that there is considerable tension between ensuring public safety and protecting the rights of the individual. There is also considerable tension between assessing risk and maintaining public confidence. Those may be difficult issues, but it is important that they are addressed during the bill's passage through Parliament.

A number of important issues have been raised, both in the earlier debate and by several speakers in this one. One issue was that Mr Noel Ruddle had for some time been recommended for a specific form of treatment, yet did not receive that treatment during the years in which he was in hospital. There would be a public outcry if that happened to someone who was waiting for a hip replacement in the Edinburgh royal infirmary. Too often services provided to those who have a mental illness are seen as second class and of a lower priority. I hope that the Minister for Health and Community Care will address that when she sums up.

The role of the responsible medical officer is essential in the process of ensuring the protection of someone's right to treatment while they are detained in hospital. In the Noel Ruddle case, the responsible medical officer seems to have recommended for some time that Mr Ruddle should be provided with a particular form of treatment. Is the process whereby the responsible medical officer has to inform formerly the secretary of state and now the First Minister being adhered to? Is notice being taken of what the medical officer is stating? I want an assurance from the minister that the specific form of treatment recommended by the responsible medical officer will be provided during a person's detention.

I want to ensure that the provision of appropriate therapeutic intervention for individuals in a hospital is not necessarily given with the view that the treatment must be provided within that hospital setting. The individual should have the opportunity to go to another establishment for the required treatment. As it has been decided to allow the Mental Welfare Commission to examine treatment within Carstairs, I ask the minister to confirm that appropriate resources will be provided to implement any recommendations that the commission makes.

A number of members have raised concerns about the definition of personality disorder. The definition is extremely general in the bill. Does the minister intend the bill to cover all individuals who have a personality disorder? As has been highlighted, many people who have a personality disorder pose no risk to society or to themselves. It is essential that individuals who suffer from a personality disorder do not find themselves on the wrong side of the law as a result of the powers in this bill.

Photo of Richard Simpson Richard Simpson Labour 11:47 am, 2nd September 1999

This is a sensitive and difficult issue of great complexity. This Parliament has a number of duties, which it has to meet. We have the clear duty to have in place legislation that protects the public from those whose mental disorder-whether it is mental illness, personality disorder or mental handicap-is manifest in seriously violent and aggressive behaviour. We also have a duty to ensure that those who have such a mental disorder should be treated humanely-I will come back to Mr Matheson's point about treatment, which was well made. We have a duty to ensure that the civil liberties and human rights of our citizens are protected.

The law has been amended since 1984 with the introduction of hospital directions, which should deal with the substantial majority of the problematic cases. As I understand it, the bill is intended to deal with a small and dangerous minority of mentally disordered patients who are currently detained in the state hospital and whose release would pose a danger to public safety.

Those patients have hitherto been regarded as being treated within the state hospital. Their right to appeal under the Mental Health (Scotland) Act 1984 has existed since the act was passed-the act gives them a right to an annual appeal. Appeals up to and including the Reid appeal were turned down on the grounds that the patients were receiving treatment and that their conditions were regarded as treatable.

Since 1984, psychiatry's view of personality disorder has shifted, but the law has not. Psychiatrists take the view that personality disorder should generally be regarded as untreatable but still as a mental disorder. The question of treatability lies at the heart of the problem. The existence of a regime within the state hospital is no longer a sufficient ground to constitute treatment, unless that regime can be shown to be beneficial to the patient and not simply to the protection of public safety.

I have no difficulty with the definition of personality disorder as a mental disorder, but psychiatrists have great difficulty with it being placed in the category of mental illness, as is proposed in the bill. However, there is no alternative at this time. Any other course of action would pre-empt the outcome of the MacLean and Millan committees, which would be inappropriate. Although I welcome the bill, I am reassured by the Minister for Justice's assurance that it is an interim measure and will not preclude the full review by MacLean and Millan.

The definition of what constitutes a mental disorder is changing, and will continue to change as society's culture changes. We are dealing not with absolutes, but with things that are culturally based. I will give members an example. When I was a medical student, the laws on homosexuality were changing, but the medical profession-and psychiatry-still regarded it as a treatable medical condition, to which it applied various pretty horrific therapies. Society has moved on, thank God, and recognised that homosexuality is not an illness.

Let us hypothesise that somebody discovers that personality disorders that are manifested in a dangerous, violent and aggressive form have a genetic basis, and that at some point in the future gene therapy is able to treat them. At that point, society will need to amend its laws again to take into account the fact that personality disorder has become a treatable condition. I am trying to say that we must make laws for now, and recognise that those laws may need to change.

I welcome the bill. It is the appropriate measure to ensure the protection of the public, which is what this chamber is trying to achieve. However, the Millan and MacLean committees may choose to take a somewhat different view. As Mr Gallie suggested, they will have to examine this matter closely and to recommend that we incorporate into law adequate public safety measures, while giving absolute assurances that people with personality disorders, or those who are regarded merely as odd or difficult, will not be locked up by the state.

Photo of Christine Grahame Christine Grahame Scottish National Party 11:52 am, 2nd September 1999

I want to pick up on Robert Brown's point about what he regards as the antagonistic approach taken by the Opposition in the first part of this debate. It is the duty of the Opposition to scrutinise the Executive on its behaviour, past and present, and that is what we are doing. It is also the duty of the Opposition to be constructive when legislation is put before this chamber, particularly in this instance.

I am not convinced that this legislation is not driven by incompetence in the handling of the Ruddle case. Section 1 of the bill refers to medical treatment. I hope that, as a result of this legislation, which is subject to amendment, people who are placed in Carstairs are not denied medical treatment. Let us make this clear: Ruddle was treatable, he simply did not get treatment. I hope that the minister will listen to that.

I would like an answer from the Lord Advocate on Dr White's role in the case, which has been mentioned. In April 1998, Dr White came back to Carstairs to find that the medical sub-committee had informed Ruddle of its decision that he should be discharged. Dr White was at first opposed to that, because he had been trying-unsuccessfully-to get the man treated for five years, in the face of resistance from the regime at Carstairs. He then changed his mind. It is my understanding that he did so on the legal advice of the office of the Secretary of State for Scotland. I would like to know whether that was the case. Ruddle was able to exploit what is euphemistically called a loophole in the legislation. He would not have been able to do anything if he had been receiving treatment.

I would have raised a second point if I had been allowed to intervene earlier. Although I welcome the retention of the conditional discharge-a halfway house-I would like to know whether, during the hearing on the Ruddle case, Mr Ruddle's legal team made any offer of a conditional discharge to settle the matter, and whether that offer was rejected out of hand by the Crown.

I welcome the right of appeal both ways-that is essential to create a balance. I also welcome what has been said about the rights of an individual who is placed in an institution such as Carstairs; either people need treatment and should be in an institution, or they should be in prison. In too many cases, the reverse is true: we have people with mental health problems in prison, and people who appear not to have mental health problems-because they obtain discharge-in Carstairs.

Generally, the legislation is to be welcomed. I know that the SNP is considering amendments to the bill to protect rights all round. No doubt that will be addressed later.

Photo of Euan Robson Euan Robson Liberal Democrat 11:56 am, 2nd September 1999

I will restrict my comments to section 3 and the inclusion of personality disorder in the Mental Health (Scotland) Act 1984. I, too, have some reservations about that, but I do not believe that the provision should be taken in isolation. Further tests would be applied before someone was detained; they would have to establish that someone not only had a personality disorder, but was a danger to the public. Clarification of that point would be helpful, as some reservations have been expressed. However, I believe that personality disorder is only one of the tests that would be applied in any given case.

Photo of Gordon Jackson Gordon Jackson Labour 11:57 am, 2nd September 1999

I, too, welcome this bill in principle. I do so for a number of reasons. First, it is an appropriate and prompt response to an issue of public safety. We all agree that public safety is of great importance. More important, the bill begins to tackle something that has needed to be tackled for a long time. We are beginning to address how the law and the courts deal with mental health issues and, in particular, with mentally disordered offenders.

It is fair to say that the way in which we have tended to deal with people who are mentally disordered has been something of a disgrace. Part of the problem has been that when psychiatrists and the courts have applied the law, they have been speaking different languages-there has been no meeting of minds. Richard Simpson is right: psychiatrists have moved on. Sometimes I think that they have moved on towards the next century, while the courts are still trying-on this issue-to get out of the last century. This is not simply a technical matter; on occasions, it has caused real injustice, as proper disposals have not been granted and cases have not been properly dealt with.

This, then, is a step in the right direction. I very much welcome the minister's assurance that the bill is an interim measure. The problem is difficult, as the Lord Advocate acknowledged-plugging this so-called loophole is not easy-and it is particularly difficult to deal with in isolation. I agree with what was said about the obvious dangers of emergency legislation. The danger with this legislation is that in trying to solve one problem we will create others; we risk closing one door, but opening others.

I must be totally frank: I am not particularly happy with parts of the bill. Like Richard Simpson, I have concerns about section 3. The idea that we, as legislators, can declare something to be a mental illness is not one with which I find myself entirely comfortable. It may be that, in due course, we will find better ways of solving this problem. However-and this is the important point-we must look for those better ways not in isolation, but in the context of dealing with the whole subject. It is important that we, as a Parliament, examine the reports of the MacLean and Millan committees and do not think that we have solved this problem for all time. I suspect that we have not.

We will deal with the subject again but the bill is a step forward and an appropriate way in which to deal with the problem and the issue of public safety. On that basis, I have no hesitation in supporting this legislation as an interim measure.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party 12:00 pm, 2nd September 1999

As I said before, the problem has been on-going in jurisprudence and psychiatry for 40 years. The tragedy is that, through the incompetence and delay of the Executive and the previous Administration, we have to rush this legislation through. As Margaret Ewing said, piecemeal and hastily drafted legislation is a recipe for disaster. We are left with no option but to support the bill but we must flag up some problems.

We have to recognise that Europe is a governmental power. The bill addresses an aspect of Scottish law but our law has been irrevocably changed by the European convention on human rights. The bill is, to some extent, passé. We are assured that the bill recognises the convention. I hope it does but I have my doubts. I have been informed that appeals can be made under article 8 of the convention, on the basis that the hospital in Carstairs is a considerable distance from people's relatives.

The bill does not address two underlying problems. It deals with people who are in the state hospital at Carstairs. It does not deal with psychopaths or people with personality disorders. I share the reservations expressed by many members on how we define personality disorders. The bill does not amend section 17 of the Mental Health (Scotland) Act 1984, which outlines the criteria by which people in civil and criminal matters are admitted into institutions; it deals with section 1. It is designed to stop people with personality disorders getting out of Carstairs; it does not stop people walking out of prison at the end of their sentence, nor would it deal with Mr Ruddle, should he choose to return to Scotland. We are dealing with the detention of those who are in Carstairs, not personality problems. That is a fundamental flaw in the bill, although the MacLean committee might address it.

Michael Matheson touched on the lack of resources that are available to deal with personality disorders. As Christine Grahame remarked, treatment for alcoholism would have helped Ruddle. His personality disorder was exacerbated by alcohol and drugs, which created the paranoid schizophrenia from which he suffered. Why was the alcohol unit at Carstairs closed down in 1996? Perhaps the Tories can answer that. I hope that whoever sums up for the Executive will say when that unit will be reopened.

The clearest critique of the bill is provided by the research note "Mentally Disordered Offenders in Scotland", which was produced by the Parliament's information centre. Page 4 details research from 1997. I understand that the research indicates that around 50 per cent of people who are patients of, or remanded in, Carstairs need not be there as they are not a danger. They should be helped in another way.

The document says:

"Health Boards have a responsibility to develop integrated and multi-disciplinary assessment, treatment and rehabilitation of mentally disordered offenders. Where possible, emphasis should be placed on the local level for provision of secure environments for the treatment (or rehabilitation) of offenders."

Note that it recommends a local level, not the state hospital at Carstairs. It continues:

"Four or five such units should be established across Scotland (including those that already exist at Perth and Aberdeen). Services could be provided on a 'supra-board' level, with occupational therapists, clinical psychologists and social work input. Health Boards should, in future, become more closely involved in monitoring the progress of patients from their areas who are accepted into the State Hospital. Overall the recommendations emphasise that the 'right kind of secure hospital facilities will reduce pressure on the State Hospital'".

Given that that information was available in 1997 and that this legislation has been rushed through in a few weeks, what extra resources has the Executive provided outwith Carstairs? What additional resources have been put into Carstairs? If no additional resources have been provided, why have they not? This bill shuts the door for some and fails to address a fundamental problem: it does not lay down how to deal with people who have dangerous personality disorders and it provides no resources to help those people.

Photo of George Reid George Reid Scottish National Party

The Opposition parties will each be allocated eight minutes for the concluding speeches.

Photo of Lyndsay McIntosh Lyndsay McIntosh Conservative 12:06 pm, 2nd September 1999

I thank the minister for providing us with a copy of the bill in both draft and final form. I am not sure which draft we received; I think that we were working from the seventh draft before the 12 th was found. Given that we have had little time to digest the bill and to consider its implications, I do not plan to give a comprehensive survey of our position. However, next week in the chamber, if not before, the minister will become fully aware of our final stance, by which time we will have had a greater opportunity to assess the full impact of the legislation.

I know how concerned Mr Wallace will be about knee-jerk reactions, so I will try not to provide him with one today. However, as has been said elsewhere-and as Westminster parliamentarians will remember-inevitably we worry about the effectiveness of any legislation that is hastily conceived and executed.

It became obvious at an early stage that the public had grave reservations about the future of Noel Ruddle. The minister had an unambiguous responsibility to allay public concern. The changes that are proposed in the bill are to be welcomed in so far as they are interim measures. That said, we support the bill and what it seeks to achieve.

I welcome the speeches that have been made by members of all parties, particularly that of Christine Grahame about conditional discharge. Mr Ruddle was released despite being unable to deal with the changes that had taken place while he was in hospital. At the end of a prison sentence, there is a programme of training for freedom. That might have helped Mr Ruddle, and it is to his credit that he has voluntarily sought psychiatric help.

The Executive's proposal to put consideration of public safety above any treatability test is to be welcomed. The situation that meant that, irrespective of public safety, those deemed as untreatable had to be released, had to be reversed. Some might suggest that the proposal has severe implications for civil liberties. The Conservative party has always been concerned about civil liberties, the most important of which, of course, is to be free from crime and the distress that it causes. Once that liberty is taken into consideration, others might pale into insignificance.

I ask the minister to expand his definition of treatment. Does he believe that someone's condition has to be curable in order for them to receive treatment? Does he accept that a person with a condition that has been classified as incurable should receive treatment to help manage their disorder? If so, will he consider giving those with so-called untreatable disorders, who have been detained on the ground of public safety, a right to treatment that will help them manage, control and cope with their disorder? Does he agree that to deny that right would have severe moral implications? Does he further agree that no matter how much effort is put into framing laws, there is always likely to be at least one case that will lead to the discovery of yet another loophole? Does he consider that in such circumstances, the loophole must be closed as quickly as possible?

I would be most grateful if Mr Gray addressed those questions; as he is a long-term advocate of consensus politics, I am sure that that will cause him no great problem. After all, the interest and safety of the public are undoubtedly at stake.

Notwithstanding any amendments that we may lodge, which naturally will be in line with the European convention on human rights, be assured that we in the Conservative party will do all in our power to assist the passage of the bill.

Photo of Kay Ullrich Kay Ullrich Scottish National Party 12:11 pm, 2nd September 1999

Roseanna is telling me to stand up as I have the podium-I think that she thought that I would speak sitting down.

There is no doubt that this case has raised serious legal issues regarding the ability of our laws to protect the public from violent, mentally disordered and sexual offenders. Those legal issues have been well aired over the past few weeks, but little attention has been paid to the medical issues raised by the Ruddle affair; I feel that that is reflected in the bill.

Since 2 August, there have been only two Executive statements on the health implications of the case, leaving many questions unanswered. For example, it seems incredible that there has been no serious health input with regard to the lack of appropriate treatment for Mr Ruddle in the state mental hospital. We have had no information on the treatment and practice at Carstairs from the health minister, Susan Deacon, or from her deputy, Iain Gray, who is summing up.

However, we do know that treatment for severe personality disorder was available-it was just not available at Carstairs. As a result, we have released into the community, without supervision, a man who has proved to be a violent and dangerous individual. Can Mr Gray tell us what provisions he intends to put in place to ensure that such treatment will now be available when and where the need is identified?

Given that since 1994, Ruddle's responsible medical officer considered him treatable, but could not gain access to the appropriate treatment or therapy for his patient, will Mr Gray give his reaction to what seems to amount to a complete failure of the system to support the psychiatrist who was responsible for Ruddle's treatment? Even if we close the legal loophole that allowed Ruddle to be released, it is imperative that we ensure that people with severe personality disorders will in future have access to appropriate, effective treatment.

Can Mr Gray assure us that personality disorder will be defined clearly in the bill, and that it will relate only to those who exhibit dangerous, aggressive, anti-social behaviour, and not to people who are not anti-social but who suffer from a non-aggressive personality disorder?

There is concern about the frequent misdiagnosis of personality disorder. Will Mr Gray give a commitment that further research into professional understanding and use of that diagnosis will be undertaken? Personality disorder must not become a catch-all title, beneath which all forms of medical disorder can be conveniently placed.

Those are just some of the health issues that have emerged from the case. However, I fear that those concerns are merely the tip of the iceberg, particularly when we consider patient discharge procedures and the subsequent supervision of patients in the community. As a matter of urgency, will Mr Gray initiate a review of those issues, which is crucial for public safety and to reassure victims and their families?

For weeks we have been deafened by the sound of dragging feet by the Executive on the Ruddle case. In the eyes of the public, their handling of the case has damaged the Executive and the ministers responsible. It is their job to ensure that no further damage is done.

Many questions have been asked today; in addition to those on health that I have asked, I ask Mr Gray to answer the points raised on compliance with articles 5 and 7 of the European convention on human rights. I ask him to answer those questions fully, as we must ensure that the public have confidence in public safety, treatment of health problems and human rights.

Photo of George Reid George Reid Scottish National Party

I noticed Mr Gray looking round for his lectern. Could it be moved fairly quickly, please? A sufficiency of lecterns is being arranged and will be with us soon.

I call on Mr Gray to wind up the debate.

Photo of Iain Gray Iain Gray Labour 12:16 pm, 2nd September 1999

In two debates today we have placed under close scrutiny the Ruddle case and the bill that is designed to prevent its repetition. It is a testing process for the Parliament because the existing law and procedures are complex, and big issues are at stake. The tone of the debate, particularly the second one, has recognised that.

Today we do not have the comfort-and we have to say comfort-of legislating when there has been full prior scrutiny and full consultation. That is the nature of emergency legislation and of the urgency with which we have been told we should act. It means that some of the important and broad-ranging issues that have been raised will not be dealt with today, but I will return to how they will be dealt with later.

It could have been so much worse. If we had listened to those-and to be fair, most of them are not in the chamber-who insisted that we should do six impossible, probably unlawful, things before breakfast, to keep Noel Ruddle in detention, while we recalled Parliament by lunchtime and legislated before tea, we would have risked tears at bedtime. We would have faced legislation so hasty that it might have been struck down on its first application. Of equal importance, we would have compromised the on-going work to modernise our mental health legislation in a right and proper manner.

By contrast, I recap some of the essential points of the emergency bill. First, it is a short bill with a clearly defined purpose-public safety. Secondly, it will introduce practical and immediate steps to close the loophole exposed by the Ruddle case. Thirdly, the protections that are essential to an approach based on the European convention on human rights are there; I am happy to assure members who have asked, that the legislation has been fully considered against the convention, including articles 7 and 5. Our view is that the legislation meets the requirements of the convention.

In that context, several members referred to the therapeutic regime in the state hospital. It is true that the sheriff criticised that regime. That is why, on 2 August when that judgment became available to me, my officials and I began to look at the best way to respond to those criticisms. It was decided that we should ask the Mental Welfare Commission to look into the Ruddle case. As members know, we did that. Its report will inform our response to those criticisms. The judgment was made that Ruddle's condition was not treatable. That was the opinion of Ruddle's responsible medical officer at that time.

Fourthly, this legislation bites as of yesterday. It will therefore apply to all future appeals in the sheriff court against continuing detention of a restricted patient. A question has been raised about the difference in timing of the different sections of the bill; I reassure members that the difference in timing for the appeal provision is to allow the Court of Session appeals procedures to be put in place. We expect that to be a matter of days rather than weeks.

As Deputy Minister for Community Care, I strongly endorse the need to act in this way to prevent serious harm to the public by the small group of patients who will be affected by the legislation. I am happy to give the assurance that has been sought by several members, that the legislation will apply only to those who have a mental disorder and who manifest abnormally aggressive or seriously irresponsible behaviour. The other tests, in particular section 17 of the 1984 act, will apply.

We will do ourselves and our people no service if, in passing this legislation, we jeopardise the current review of mental health legislation by the Millan committee. That is why, with a view to the longer term, we clarified the existing position that personality disorder is legally within the scope of mental disorder. I thank Richard Simpson for his helpful comments.

Photo of Christine Grahame Christine Grahame Scottish National Party

I asked two questions of the Lord Advocate: if they are not answered now, will they be answered in writing?

Photo of Iain Gray Iain Gray Labour

The Lord Advocate has agreed to reply in writing.

One in four of us-this point was made by a number of members-will suffer from a mental illness at some time in our lives. It is important to recognise-I welcome Robert Brown's intervention on this-that most people who suffer a mental illness are no danger to the public. The mental health framework that was launched in September 1997 is modernising the services. The mental illness specific grant invests £18 million per year in improving those services. A few weeks ago, I announced a further £2 million for the mental health development fund. In answer to Mr MacAskill's question, I can say that forensic psychiatric services-two in Glasgow, one in Edinburgh and others around Scotland-are being developed.

Not only do one in four of us, at some time in our lives, need to have confidence in those services; so do the hundreds of staff in many different professions who undertake difficult work on our behalf. I thank Karen Gillon and Lewis Macdonald for their interventions that reminded us of that.

The 1984 act is the legal framework for all those services. That framework cannot be determined solely by the tip of the mental health iceberg-the conjunction of disordered personality and acute violence-and this legislation will not do that. The Millan committee will be allowed to complete its work; it will be informed by Lord MacLean's committee on violent offenders. The legislation that follows their recommendations will be afforded the full normal scrutiny of the Parliament and its committees. We have given that assurance to bodies such as the Law Society of Scotland and the Scottish Association for Mental Health. Jim Wallace repeated that assurance today, and I am happy to do so one more time.

I will also ensure that the many important points that were raised in this debate are passed on to MacLean and Millan for their committees' consideration. As members know, we have already asked Lord MacLean's committee to consider the Ruddle case specifically.

The bill is deliberately limited to the steps that are essential to close the Ruddle loophole now. That responsibility was placed on the Executive. I hope that members are ready to endorse the principles of the bill, to clear the way for the more detailed scrutiny at stage 2.

On 2 August-a month ago-we said that we would legislate if necessary; it is. We said that we would not legislate in haste; we have not. We said that we would legislate quickly and before any further similar releases; we are doing that.

This bill is concise, careful and considered. Above all, it is the correct thing to do now. I commend it to members.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

We now move to a decision on stage 1 of the bill. The question is, that motion S1M-115, in the name of Mr Jim Wallace, be agreed to.

Motion agreed to.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

The next motion is on procedures for stages 2 and 3 of the bill. I ask Mr Tom McCabe to move motion S1M-111.

Motion moved,

That the Parliament agrees that (a), Rules 9.7.8 and 9.7.9 of Standing Orders should be suspended for the purposes of the meeting of the Parliament at which Stages 2 and 3 of the Mental Health (Public Safety and Appeals) (Scotland) Bill are taken, and (b) directs that any vote to be taken during Stage 2 of the Bill in the Committee of the Whole Parliament shall be conducted using the electronic voting system.- [Mr McCabe.]

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

The question is, that motion S1M-111, in the name of Mr Tom McCabe, be agreed to.

Motion agreed to.

Photo of Hugh Henry Hugh Henry Labour

On a point of order, Presiding Officer. I participated in the vote yesterday on the motion on public health, but my vote was not recorded.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

I take note of that. Your vote will be entered into the record. We will try to investigate such things.

Question, That the meeting be now adjourned until 2.30 pm today, put and agreed to.- [Lord James Douglas-Hamilton.]

Meeting adjourned at 12:27.

On resuming-

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament 2:30 pm, 2nd September 1999

Before we begin this afternoon's business, I would like to inform members that we are joined in the distinguished visitors gallery by Speaker J Dennis Hastert, the Speaker of the House of Representatives in Washington, and by five colleagues from the United States Congress. I am sure that members will wish to recognise them and to welcome them to our Parliament in the usual manner. [Applause.]