Members of the Justice 2 Committee will recall that, during our stage 2 discussion of the bill on 26 June, I agreed to reconsider the provisions in section 12(4). Having reflected on the matter, I am now persuaded that the most suitable course of action—and that which is most consistent with domestic procedure—is to remove the provisions in section 12(4) that refer to consent being given by an appropriate person to questioning on behalf of another person. The effect of amendment 43 is that only the person to be questioned can give consent. I have also given consideration to the amendment 47, in the name of Christine Grahame. Although I sympathise with its intentions, I am not inclined to agree in this instance that it represents the best way forward.
Our objectives are twofold: to fulfil our obligations to provide assistance to the ICC; and to reflect as far as is practicable similar domestic arrangements, where such arrangements exist. In that respect, what amendment 43 proposes does not differ significantly from what takes place daily in Scotland. For example, any suspect may be advised that they are to be questioned, but that they are not bound to answer. Furthermore, if it is thought that questioning by the police has been carried out in an unfair manner, it is highly likely that it will not be admissible in court in evidence thereafter.
The same will apply to questioning undertaken at the behest of the ICC and will be covered by its regulations on admissibility. For example, article 69 of the Rome statute states:
"Evidence obtained by means of a violation of this Statute or internationally recognised human rights shall not be admissible".
Attempting to define exactly the circumstances in which a person can give consent to questioning not only is unnecessary for the reasons I have just outlined, but might be unworkable in practice. The High Court has consistently declined to set out exactly when a person is considered incapable. Each case must be considered on its merits. Any attempt to provide a fixed definition to be applied in all circumstances could have the unintentional effect of obstructing our obligation to provide assistance to the ICC.
It is worth pointing out what usually happens in Scotland—under this bill or any other similar domestic circumstances—if the police wish to question an individual who is thought, for example, to have a mental disorder. The relevant details are to be found in the current Scottish appropriate
For instance, the guidance specifies that if the officer in charge of the investigation detects signs of mental disorder in the interviewee, he or she must arrange for a medical examination to establish whether an interview can take place. If the interview does proceed, an appropriate adult, as defined by the code, is to be present to ensure, among other things, that the interviewee understands the questions being put to him or her and the implications of their answers.
As a result, I am satisfied that if members accept amendment 43, section 12 will allow us both to fulfil our obligations under the Rome statute and to retain consistency with current domestic procedure and—given the key issue in this regard—that of admissibility of evidence before the competent court.
I move amendment 43.
I thank the minister for his comments. I am greatly satisfied by what he has said this morning. It shows the value of lodging what might be called "testing amendments" at stage 2. As the minister will recall, he said at the time:
"The current wording of section 12 achieves that aim"— the protection of capacity—
"and also builds in important safeguards."—[Official Report, Justice 2 Committee, 26 June 2001; c 301.]
I am grateful to the minister for reconsidering the position and deciding that the earlier provisions were flawed. Given his comments, I believe that we should support amendment 43.
I will be very brief. I thank the minister for responding to the draft amendment on the same point that I lodged at a much earlier stage. It is very refreshing to see that he has recognised that the matter required attention. It would be wrong for consent to be given where a person has a mental incapacity and might not be able to give such consent themselves.
I will speak briefly to amendment 3. If I may say so, I am slightly astonished that an Executive in such a modern Parliament still does not support the idea of digital signatures. However, I accept that the minister, in his wisdom, might well support the principle and might wish to deal with the matter by comprehensive legislation covering other circumstances in due course. I hope that, in the meantime, he will accept communications with digital signatures, as they might become commonplace in a relatively short period of time.
I move amendment 3.
We are indeed a modern Executive. The matter is generally under consideration for possible inclusion in future legislation. However, some aspects about the most suitable way to make the required provision have still to be worked out. As a result, it would not be desirable to use the bill as a vehicle to pre-empt what may or may not come along after due consideration. Any legislation that might be introduced on this issue is likely to be all-embracing and cover all appropriate situations where signatures are required by statute and common law. Although I recognise Lord James's modernity, I ask him to withdraw amendment 3.
Division number 4
For: Adam, Brian, Aitken, Bill, Campbell, Colin, Crawford, Bruce, Cunningham, Roseanna, Davidson, Mr David, Douglas-Hamilton, Lord James, Elder, Dorothy-Grace, Ewing, Dr Winnie, Ewing, Fergus, Fabiani, Linda, Fraser, Murdo, Gallie, Phil, Gibson, Mr Kenneth, Goldie, Miss Annabel, Grahame, Christine, Harding, Mr Keith, Hyslop, Fiona, Ingram, Mr Adam, Johnstone, Alex, MacAskill, Mr Kenny, MacDonald, Ms Margo, Marwick, Tricia, Matheson, Michael, McGrigor, Mr Jamie, McGugan, Irene, McIntosh, Mrs Lyndsay, McLeod, Fiona, Morgan, Alasdair, Mundell, David, Neil, Alex, Robison, Shona, Russell, Michael, Scanlon, Mary, Scott, John, Sturgeon, Nicola, Tosh, Mr Murray, Ullrich, Kay, Wallace, Ben, Welsh, Mr Andrew, White, Ms Sandra
Against: Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Finnie, Ross, Fitzpatrick, Brian, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grant, Rhoda, Gray, Iain, Henry, Hugh, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, MacLean, Kate, Macmillan, Maureen, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Robson, Euan, Rumbles, Mr Mike, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Thomson, Elaine, Wallace, Mr Jim, Watson, Mike, Whitefield, Karen, Wilson, Allan