The Bill as introduced creates new types of protection notices and orders to protect people from domestic abuse. These are:
- domestic abuse protection notices (DAPNs)
- domestic abuse protection orders (DAPOs)
DAPNs can be made by senior members of the police. They are a very short-term way to offer immediate protection from domestic abuse until a DAPO can be made by a court.
A DAPO can last for up to 2 months and can be extended by another month. A DAPN does not need to be in place to ask the court for a DAPO.
The Bill lists all of the things a DAPN can do. This includes stopping an abuser from entering the home of the person they have abused.
A DAPO can do anything a DAPN can, or anything else the court thinks is needed to protect someone from abuse by their partner or ex-partner.
The Bill also adds a new reason for ending a Scottish secure tenancy when a tenant has been abusive to their partner or ex-partner. The landlord can only seek to end the tenancy if they plan to let the person who has been abused continue to live in the house. The person who has been abused must also wish to continue to live in the house.
You can find out more in the Explanatory Notes that explains the Bill.
Why the Bill was created
The Bill creates additional protection for people who are at risk of domestic abuse, particularly where they are living with their abuser.
The Bill is trying to fill a gap by allowing immediate protection for a short time for a person experiencing domestic abuse. This is to keep them safe while they work out what to do next.
The Bill gives additional protection to people in social housing who experience domestic abuse. It enables landlords to apply to the court to end the tenancy rights of someone who has been abusive to their partner or ex-partner. Landlords can only do this if the person who has been abused wishes to continue living in the house.
You can find out more in the Policy Memorandum that explains the Bill.
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Related information from the Scottish Government on the Bill
Why the Bill is being proposed (Policy Memorandum)
Explanation of the Bill (Explanatory Notes)
How much the Bill is likely to cost (Financial Memorandum)
Opinions on whether the Parliament has the power to make the law (Statements on Legislative Competence)
Information on the powers the Bill gives the Scottish Government and others (Delegated Powers Memorandum)
Stage 1 - General principles
Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.
Who examined the Bill
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Who spoke to the lead committee about the Bill
First meeting transcript
Item 2 is to begin our stage 1 consideration of the Domestic Abuse (Protection) (Scotland) Bill. I refer members to the relevant papers in our pack.
This morning, we will take evidence from the Scottish Government’s bill team. To that end, I welcome our first panel of witnesses, who are all attending remotely. We have with us Patrick Down, criminal law and practice team leader; Anne Cook, head of social housing services; and, from the legal directorate, solicitors Katherine McGarvey and Rachel Nicholson. Welcome to all of you.
I intend to allow up to an hour for questions. If witnesses wish to respond to a question, they should press R in the BlueJeans chat box, and we will come to them.
Patrick Down, do you want to make an opening statement or should we launch straight into questions?
Patrick Down (Scottish Government)
I thought that it would be useful to give a quick overview of what the bill does.
As I am sure that members will be aware, the bill contains two distinct topics. It provides for a new system of protective orders for people at risk of domestic abuse, and it provides landlords in the social rented sector with new powers to apply to a court to reassign a tenancy that is in the name of a perpetrator of domestic abuse to the victim of abuse.
I turn first to the protective orders scheme. The bill provides for a power for the police to make an emergency domestic abuse protection notice—DAPN—in cases where such a notice is necessary. The police can make a notice if they have “reasonable grounds for believing” that the suspected perpetrator has engaged in behaviour that is abusive of the person at risk, and that it is necessary to make a domestic abuse protected order—DAPO—for “the purpose of protecting” the person at risk from abusive behaviour by the suspected perpetrator. There is a requirement that it is necessary to make the DAPN to protect a person at risk before the sheriff can make an interim or full DAPO. Where that last test is not met, police can decide to apply to the court for a DAPO without having first made the DAPN, and there will be the option for the sheriff to make an interim DAPO, pending determination of that application.
The bill provides an exhaustive list of conditions that could be included in a DAPN, which could be used to remove a suspected perpetrator from a home that they share with the person at risk and prohibit them from contacting or approaching them. Where the police make the DAPN, they must apply to the court for a DAPO on
“the first court day after the day on which”
the DAPN is given. The sheriff must then
“hold a hearing in relation to the application not later than the first court day after the day on which the application is made”.
There is a requirement for that hearing to be concluded
“on the day on which it begins”,
but that does not preclude the sheriff from assigning further hearings in the proceedings. It is simply a means of ensuring that there is a clear point at which the DAPN ceases to have effect.
It might be helpful for me to briefly outline the options that are open to the sheriff at the hearing. They can grant the protective order, refuse the application, grant an interim order and set a date for a further hearing, or make no interim order but still set a date for a further hearing. The sheriff can make the DAPO if they are satisfied that the person against whom the order is sought has engaged in behaviour that is abusive of the person at risk and that it is necessary to make the order for the purpose of protecting that person from future abuse. The sheriff can impose any “requirements or prohibitions” that are necessary for the purpose of protecting the person at risk. The order can run for a maximum of two months, which is capable of being extended on application to the court for one further month. That is in contrast with longer-term civil orders such as non-harassment orders and exclusion orders and reflects the fact that DAPOs are intended to be a short-term, emergency measure. Breach of a DAPO is a criminal offence, punishable on conviction on indictment with a sentence of up to five years’ imprisonment and a fine.
Briefly, part 2 of the bill creates a new ground on which a landlord can apply to the court to end the tenancy of a perpetrator of domestic abuse, with a view to transferring it to the victim of that abuse. It applies in cases in which the perpetrator is a Scottish secure tenant and the victim is married to, in a civil partnership with or cohabiting with the tenant, and it will make it easier for a local authority or registered social landlord to transfer a tenancy to a victim of domestic abuse. Those provisions will help to improve immediate and longer-term housing outcomes for domestic abuse victims who are living in shared social housing and who wish to continue living in that family home, and they will help to avoid homelessness.
We will be happy to take questions from committee members. It might be helpful to add that Katherine McGarvey and I lead on the domestic abuse protection orders provisions, and Anne Cook and Rachel Nicholson lead on the social rented tenancy provisions.
That is very helpful—especially your last comments, which enable committee members to know to whom they should direct their questions.
My first question is for you and is about domestic abuse protection notices. The committee has received a range of written evidence about that aspect of the bill. A range of organisations are supportive of what is outlined, but some quite serious reservations have been expressed by the Sheriffs Association, the Summary Sheriffs Association and the Law Society of Scotland, which have raised concerns about the concept of the domestic abuse protection notice and, in particular, about the test that must be met under the relevant section of the bill before a notice can be imposed. As I understand it, that is simply that a senior police officer has “reasonable grounds” for suspicion.
What sort of level of evidence must be available to the police before they can issue such a notice, and can you assure the committee that the operation of the test will be compatible with relevant rights under the European convention on human rights?
First, I must clarify that the test is that the police officer who makes the notice must have “reasonable grounds for believing” that the suspected perpetrator has engaged in behaviour that is abusive of the person at risk and that it is necessary to make the order. I make that distinction because we think that “reasonable grounds for believing” is a slightly stricter test than that of having reasonable grounds to suspect. Obviously, the police, like all public authorities, are obliged to act in compliance with the European convention on human rights.
I would not like to try to give an exhaustive set of examples of what would or would not constitute “reasonable grounds for believing” in any given case. The test of having reasonable grounds to suspect is, I think, the one that the police would use in deciding whether they can arrest somebody on suspicion of committing an offence. We are talking about similar sorts of circumstances in that, for example, they might have received a report about abuse, there might be eyewitnesses, or the person who is reporting the abuse might have complained of abuse on other occasions.
I invite my colleague Katherine McGarvey to add to that answer.
Katherine McGarvey (Scottish Government)
I agree with what Patrick Down has said about “reasonable grounds for believing”. Belief is a slightly higher threshold than suspicion. It is essentially a matter of degree, but the test of “reasonable grounds for believing” is slightly higher than that of having reasonable grounds for suspecting.
In essence, there are two elements to the test. The senior constable who is making the decision has to hold a genuine belief; and there must be reasonable grounds for that belief. The “reasonable grounds” part of it imports an element of objectivity into the test. That is important because it means that the officer who is imposing the notice cannot act simply on their subjective belief; they have to have grounds that can essentially hold up to scrutiny.
You asked about ensuring that domestic abuse protection notices are compliant with convention rights. We acknowledge that article 6 of the European convention on human rights is engaged with here. In making a decision to impose a notice, an officer is not acting as a court of law. Convention jurisprudence recognises that, in some exceptional circumstances where the object of any given measure requires efficient and quick decision making, not all the protections in article 6 can be afforded in the timeframe if the objective might be undermined. In this case, the objective is to provide immediate and enforceable protection for the person who is at risk, hence the ability of the police to impose a domestic abuse protection notice.
However, I echo Patrick Down’s point that “reasonable grounds for believing” is a test that would be commonly employed by the police. As I mentioned earlier, it contains an objective element, which is important.
Thank you for clarifying that we are talking about “reasonable grounds for believing”, rather than reasonable grounds for suspicion. That is helpful.
What should a police officer do in the event that they believe that allegations have been made maliciously? How would a police officer know whether the allegations on the basis of which it is necessary to serve a domestic abuse protection notice have been made in good faith or maliciously?
My observation is that the police inevitably encounter that scenario at the moment when they receive reports of allegations of domestic abuse. When the police attend a domestic abuse incident, they have to consider whether there is sufficient evidence that a criminal offence may have been committed. There will be occasions when, for whatever reason, they are not persuaded of that. I do not think that the option to make a domestic abuse protection notice changes that.
At the moment, the police will go to domestic abuse incidents where they will receive allegations and counter-allegations. Two individuals may both claim to have been the victim, rather than the perpetrator, of a domestic abuse criminal offence. That will continue to be the case under the new scheme. The police have to decide whether there are reasonable grounds to believe that either of those individuals has been subjected to abusive behaviour and whether it would be necessary to make a domestic abuse protection notice to protect the individuals from domestic abuse.
John Finnie (Highlands and Islands) (Green)
I am interested in this line of questioning. I want to know, not least as a former police officer, how would that work in practice? I should declare at the outset that I am a member of the cross-party group on men’s violence against women and children and I am involved with the white ribbon campaign.
I am trying to imagine a situation in which officers are called to a location in a landward part of the extensive region that I represent, the Highlands and Islands. You have touched on the issue of counter-allegations. What will happen in such a situation? If a police officer has reasonable grounds to believe that someone is at risk, and an individual is arrested, what will be different from what happens at the moment?10:15
It will be another option that the police have. I am aware that the police’s written evidence outlines the various means by which provision can be put in place to protect a person who is at risk where someone has been charged with a criminal offence. If, in any given case, the police suspect that a criminal offence might have been committed but are not persuaded that there is sufficient evidence to charge the person with an offence, the police will have the option of making a protection notice. The same will apply in a case where the police initially charge someone and report to the Crown Office, and later in the process the Crown decides to mark the case for no further proceedings. If the police believe that a person is still at risk and that there are reasonable grounds to suspect that the suspected perpetrator has committed domestic abuse against that person, the police will have the option of making a protection notice to ensure that protection is put in place for the person who is at risk.
That suggests a civil degree of proof rather than a criminal degree of proof, which would follow on from someone being arrested. Is that correct?
Yes. That is our understanding of the test. I will give Katie McGarvey an opportunity to come in.
Yes, that is correct. The orders are civil orders and will use the civil standard of proof, which is the balance of probabilities.
Thank you for that, but I am still trying to understand what will happen on the ground when officers attend the scene. The suggestion is that the provision is an additional string to the bow in dealing with domestic violence, which everyone would applaud on one level. In an instance where there are reasonable grounds to believe that an accusation and indeed a counter-accusation have some credibility, what is the timeframe for all that decision making, bearing in mind that it is unlikely that an inspector will be in attendance? It is all very well for us to see how it looks on paper, but I am interested in how it will work in practice. What timeframe are we talking about?
That will inevitably depend on exactly how Police Scotland chooses to make use of the powers and on the mechanism that it puts in place for officers on the ground who suspect that domestic abuse has occurred and believe that a protection notice and order would be appropriate. It will depend on the mechanisms that Police Scotland has for clearing the decision with an inspector, as that is the level at which the decision will be required to be made.
Similar powers have existed in England and Wales for about six years, where there are domestic violence protection notices and orders, which are made in considerable numbers each year. The bill provides a certain degree of flexibility as to the exact mechanism that the police put in place for decision making on the measures, provided that the decision is made by somebody at inspector level or above.
Thank you. I still have questions about that, as I think that there will be operational challenges connected with it.
Thank you, John. That was a helpful line of questioning that we will want to take up with later witnesses.
Before I move on to Fulton MacGregor, I have a question for Patrick Down and Katie McGarvey. What will happen if someone who is made the subject of a domestic abuse protection notice is on home detention release or is wearing an electronic tag that requires them to remain at home? Does the DAPN have the authority to release the individual from the requirements of wearing an electronic tag or being in a certain place at a certain time? How do the provisions interact with other elements of the criminal justice system that we already have in place?
I have to admit that we will have to come back to the committee on that in writing, unless Katie McGarvey wants to come in. Of course, the police would be able to consider that matter in deciding whether to make a DAPN.
That is probably something that it would be worth coming back to the committee on in writing. I agree with Patrick Down that it is likely to be something that the police would take into consideration when deciding whether to impose a notice. Given that the person would be required to stay in their home, it might not be appropriate to impose a notice. It is an issue on which it would be worth us writing to the committee.
The committee is taking evidence on the bill from a range of stakeholders a week today. We would like to have your written submissions on the issues before then, so that we can put those points to stakeholders. I think that that will be our last opportunity to do so, because of the timetable that we are working to in order to meet the Government’s legislative ambitions. We would be very grateful if you can turn that around as soon as possible.
Fulton MacGregor (Coatbridge and Chryston) (SNP)
Good morning. My line of questioning is similar to John Finnie’s, on decision making. Police Scotland has suggested to the committee that enabling the police to issue a domestic abuse protection notice without the usual multi-agency involvement in decision making might not be a positive feature of the bill. What does the Government think of that concern? Is it valid, and what proposals are in place to address it?
The bill does not specify the decision-making process that the police must follow. If the police are of the view that, in a given case, the most appropriate mechanism for deciding whether to make a DAPN is to go through a multi-agency process and to take account of the views of third sector support groups or the local authority social work department, for example, the bill will not prevent them from doing that.
However, the bill gives the police the flexibility to make a protection notice in an emergency, without first having to go through a multi-agency decision-making process, if they consider that the need to make a decision at speed outweighs the need for a multi-agency process. There will be cases in which, for example, the suspected perpetrator and the person who is at risk will be well known to the police and other agencies, and the police might also be called to incidents in which they consider that a person is at serious risk of abuse, so the need to put measures in place instantly outweighs the need to take the views of agency partners.
I do not think that there is anything in the bill that seeks to undermine the idea that the police would work on a multi-agency basis in domestic abuse cases.
I understand the need for flexibility. The situations that you described allude to that well, but the police are saying that the matter causes a wee bit of concern, so are you not concerned that it would be the police who would decide whether to deal with the notice themselves or take a multi-agency approach? Could not something be done that would still allow flexibility? Guidance could be put in place about when that would be a police decision and when it needs to be a multi-agency decision. It strikes me that if the police are concerned about that aspect of the bill, it is definitely worth looking at.
That is an operational matter that you might want to consider in detail when the bill is passed and is being implemented, by working closely with the police and other relevant parties to agree a full process for how the protection notices and orders in the bill will be used in practice.
You might want to put the question to the cabinet secretary when he gives evidence. However, it would not necessarily be helpful to specify that in great detail in the bill—not least because doing so would risk losing flexibility and would offer less scope to adjust processes, reflect on lessons learned and improve processes in the light of experience, once the protection notice and protection order scheme is effected.
That was really helpful. Thank you.
Rona Mackay has a supplementary question, after which Shona Robison will ask questions.
Rona Mackay (Strathkelvin and Bearsden) (SNP)
If the police decided not to apply for a protection order and there was then a subsequent abuse incident, would the victim have any recourse? What would the outcome be?
Clearly, as is the case at the moment, the police will be able to attend an incident that is reported to them and decide whether to arrest the suspected perpetrator on the basis of the evidence that is available to them. If a decision is made not to arrest, a subsequent report might be made, at which point the police might decide to arrest.
The same will be true under the bill’s provisions. If, after an incident for which the police had decided not to make a protection notice or to apply to the court for a protection order, a further incident were to occur, they might wish to revisit that decision.
Shona Robison (Dundee City East) (SNP)
In the process that is set out in the bill, a DAPN can, as you know, last for as few as two days, depending on where the weekend or a public holiday falls. A DAPN must also last until the court reaches a decision on imposition of a DAPO or an interim DAPO.
You will be aware of the arguments around that issue. One argument is that two days is not long enough to prepare a case for a court order. Conversely, if DAPNs in practice typically last much longer because of the pressure of court business, for example, there is an argument that appeal rights against such notices might, for the benefit of suspected perpetrators, need to be built into the process. I would like to hear your comments on those views, and whether you think that there is merit in the concerns that are being raised on both sides. Patrick Down would probably be the best person to respond to that.
I accept all those arguments. There is inevitably a trade-off to be made. There is a balance to be struck between, on one hand, ensuring that such a decision by a police officer—to bar from their own home a person who has not necessarily been charged with a criminal offence—is subject to review by a court within a reasonable time, and on the other hand, the need to build into the process enough time for a case to be prepared by the police for a decision by the court.
The bill’s approach, in an attempt to strike that balance, is explicitly to provide power for the court to make an interim order in a case in which it is decided that further evidence or investigation is required before a decision is made on a full order. An interim order could run for up to three weeks. The result of that is that there will be early oversight by the court of the police’s initial decision and, in cases in which it is necessary, scope for the sheriff to allow more time for further evidence to be prepared before a final decision is made on whether to grant the order.
On that basis, obviously you consider the balance to be about right, but do you think that, for that reason, there will, in practice, be a high level of use of interim orders?10:30
That is certainly possible. When we were preparing the bill, I spoke to colleagues in police forces in England and Wales, who said that, there, a decision on the final order is usually made at the first hearing. A different approach might be taken here; the sheriff courts might prefer to rely more on interim orders.
I will go back to Rona Mackay to pick up questions on protection orders.
Thanks, convener. I will follow up on Shona Robison’s line of questioning. What is your response to organisations that say that the proposed maximum three months for a DAPO is too short?
I feel that I am repeating myself, but that is yet another issue on which it is fair to say a balance must be struck. In this case it is between protecting the rights of a suspected perpetrator, who might have been barred from their own home, and providing the person who is at risk with sufficient time to address their longer-term safety.
It is worth noting that where the person who is at risk wants to take out an interdict, a non-harassment order or an exclusion order, although there might be cases in which a final decision—particularly on an exclusion order—might not be made within two or three months, the courts have the power to make an interim order. For the majority of cases, I expect that two to three months will be sufficient for the person at risk to have taken steps to address their longer-term situation and safety.
Given that it is a relatively short-term measure, the other system of civil protective orders and complex measures to which people have recourse will remain. Will that mean that reform of the wider system of civil protective orders for domestic abuse might have to be considered in the next parliamentary session? Would the bill extend to allegations of stalking—could a victim apply for a protection order in such circumstances?
I will answer the second question first. The bill is restricted to cases in which the suspected perpetrator and the person at risk are either partners or ex-partners, so it would cover stalking only when it is being carried out by—I presume—an ex-partner, because I do not think that it is meaningful to talk about stalking by a current partner. However, it is there; the bill would cover that—
I want to clarify that. Would the bill cover that?
Yes—it would cover stalking by an ex-partner, because it is a form of abuse.
What about the case of an abuser who is living in the home and leaves temporarily? If a protection order is taken out against that person and he stalks the person at risk, would that be enough to create an offence?
Yes. If a suspected perpetrator is ordered to leave the home and then stalks the person at risk, such as by sending unwanted or abusive communications or by telephoning them, the bill contains a power to make provision prohibiting their doing that. Breach of a provision in a domestic abuse protection order is a criminal offence. Therefore, the answer is yes.
To come back to your question about the wider system of civil protective orders, I have some notes on that, because civil law colleagues have provided me with information.
I will find them in a moment—this is the downside of doing everything from home, using small print. I am sorry, I cannot find the information—
You can get back to us in writing on that.
I know that the Scottish Law Commission is undertaking a wider review of civil protective orders, so that could well form part of the work that is done in the next session of Parliament. I have already committed to getting back to the committee on one point, so we can certainly add more information on civil protective orders.
I would like to move on to consent of the victim. In our call for evidence, 28 per cent of respondents thought that consent should be required and 46 per cent thought that that is not necessary. Scottish Women’s Aid feels strongly that the victim should be asked to consent. That relates to the victim not having control if they are not asked to consent. What is your view on consent?
I think that it is fair to say that, in the vast majority of instances, protective notices and orders are far more likely to be effective if the person at risk supports them and consents to their being made. Clearly, if they impose conditions on a suspected perpetrator, that is likely to be effective only if the person at risk feels comfortable reporting a breach to the police and wishes to do so.
However, there could be exceptional cases in which the police believe either that the person at risk wants an order to be made but does not want to be seen to be consenting, because of fear of how the suspected perpetrator might react to that, or that the degree of coercive control that is being exerted is so great that the person at risk might not appreciate the level of danger that they are in. We think, therefore, that there is a case for not making it an absolute requirement that there be consent in all cases.
However, I accept—particularly with regard to protection orders, as opposed to protection notices—that this is a finely balanced issue, and that an argument can be made either way.
Liam Kerr (North East Scotland) (Con)
Good morning. I have a question on a similar line. The majority of respondents to the consultation thought that, when a notice or an order is made, the person at risk should be referred to support services. However, the Scottish Government has not taken that forward. Why not?
That is about whether the matter should be placed in legislation as a statutory duty, or left as an operational matter for the police to decide on in each individual case. When the police respond to a domestic abuse incident, they routinely provide the complainer with information on how to seek help from appropriate third sector support bodies. I expect that they would do exactly the same thing in making a domestic abuse protection notice or applying for a domestic abuse protection order.
The question, therefore, is whether it is appropriate to place on the police a statutory duty to provide that information in every case. We must bear it in mind that there could be exceptional cases in which the person at risk does not want to be referred. There are also, potentially, data protection issues involved in passing information to a third party without the agreement of the person at risk. Therefore, we think that that is best left as an operational matter for the police to decide on, in individual cases.
We have seen no evidence that the police are failing to make complainers in criminal domestic abuse cases aware of the support that is available to them; I think that that approach will continue to apply in cases in which they make protective notices or orders.
Liam McArthur has a supplementary on that, then Annabelle Ewing will be next.
Liam McArthur (Orkney Islands) (LD)
Good morning. I will follow up Liam Kerr’s line of questioning. I understand the reticence about putting in the bill a statutory provision on referral of victims to support services, particularly given there is not a great deal of evidence that the police do not make people aware of support. However, I wonder whether there might be a case for some form of presumption whereby if a referral is not made, there would, at least, be a requirement to explain the rationale for that. That would provide a check, notwithstanding the reassurances that Patrick Down has provided about there not being a great deal of evidence that the police do not make people aware of support.
In relation to amending the bill in that way, that might be a question that you could put to the cabinet secretary when he gives evidence in January.
I am sure that he will be grateful for that. Thank you. Annabelle Ewing will pick up on that line of questioning, then Rhoda Grant will be next.
Annabelle Ewing (Cowdenbeath) (SNP)
Looking at the bill’s scope as far as the notices are concerned and particularly the issue of who can be the perpetrator in terms of the relationship with the victim, the bill as drafted deals with intimate relationships and not wider intrafamilial relationships. Can Patrick Down provide clarity as to the rationale for that approach?
Yes. It is broadly in line with the approach that we took in the Domestic Abuse (Scotland) Act 2018 and recognises that intimate relationships can involve particular imbalances of power. We think that the forms of coercive and controlling behaviour by an intimate partner can be of a particular kind that merits taking a separate approach for domestic abuse.
In the longer term, there might be a case for considering whether other situations—for example, those involving intrafamilial abuse, stalking by acquaintances or strangers, or abuse by people sharing a house in multiple occupation—could be dealt with in future legislation. However, the definition of abuse in the bill, which is closely modelled on the definition of domestic abuse in the 2018 act, is specifically designed around the kind of abuse that can occur in intimate personal relationships. We found that it would not necessarily be a good idea to divert the understanding of what domestic abuse is by providing a general power that would apply in domestic abuse cases and other cases where somebody could be experiencing harassment or abuse by family members, friends or acquaintances.
Thank you for that clarification. I have a supplementary on that question and then a separate question. Notwithstanding what Patrick Down said would be the policy rationale, in his view would there be any technical problems from a legal or drafting perspective in trying to widen the approach beyond the broad one of the 2018 act?
If that is ultimately a question about whether amendments to the bill would be within scope, I am not sure that I am qualified to comment on that. It is a sort of legal parliamentary question. I do not know whether my colleague Katie McGarvey wants to comment on that or whether it is for the Parliament to decide what it thinks the scope of the bill is.
I cannot give a definitive statement on that, I am afraid. I think that it would be for the Parliament to decide whether that was within the scope of the bill. I cannot say definitively at this stage whether it would be.
The point about the bill’s scope is interesting, but I was also thinking about the operational efficiency of what it proposes. Having heard the debate that we have already had this morning, it seems to me that the bill is justified in trying to deal with certain issues. If we were to seek to widen its scope too much, we might lose some justification for what it seeks to do. However, I guess that we will return to that issue.
The other area that I want to consider concerns the age thresholds. Whereas a perpetrator must be aged 18 or over for an order to be issued, the victim requires to be aged only 16. Could Patrick Down or Katie McGarvey indicate why that approach was adopted?10:45
The reason for having slightly different thresholds is that we did not think that it would be appropriate for the power to be used to require the removal of someone who is legally a child from their home. We have therefore set the age limit for the suspected perpetrator at 18. However, we recognise that a small number of 16 or 17-year-olds might live with abusive older partners. In such cases, we think it appropriate that the power should exist to provide protection for them. I expect that that would come into play in only a small number of cases. If we were to be asked why the limit had been set at 16, we would say that that is the minimum age for marriage. It is unlikely that someone aged under 16 would be living with a partner or ex-partner, but in such cases other child protection measures might be more appropriate—for example, the power to refer cases to the children’s reporter.
Just for clarity, would the child protection angle deal with a perpetrator who was aged between 16 and 18?
Potentially, yes—but I add the caveat that the number of 16 and 17-year-olds living together independently as partners is probably vanishingly small.
Rhoda Grant (Highlands and Islands) (Lab)
The protection notice will give protection to children, but it will not take in other people such as other family members. Why was that decision taken? As we know, family members can be on the receiving end of domestic abuse if the abuser cannot access the person whom they would normally target.
It is important to remember that the protection notice is a short-term one that is not subject to any oversight by the court. It puts in place a minimum set of conditions that we think are necessary to protect a person who is at risk, in the short term, before a court can consider whether to make a full or an interim domestic abuse protection order. At that point it would be open to the court to impose any condition that it considered necessary to protect the person at risk from abuse. In appropriate cases, where it considered it both necessary and proportionate, the court could include, for example, a condition not to approach or contact other members of the family of the person at risk or their friends or acquaintances. The court might do so in a case in which it was known that the suspected perpetrator might otherwise pursue such a course of action.
It is widely understood that the most dangerous point in a domestic abuse situation is when the relationship breaks up. If a notice were to be put in place then, I fear that that could be at a time when the whole situation is volatile. Is thought being given to that, and is there an opportunity to change it to involve other family members, given that we are talking about a very short time?
If the committee were to recommend an amendment to widen the powers in section 5(1), which sets out the conditions that can be imposed by a domestic abuse protection notice, I am sure that the cabinet secretary and the Scottish ministers would be interested in considering that.
Would the notice and the order take precedence over other court orders that might be in place, such as for shared custody of children or access to children? We all know of cases in which abusive partners have access to children and, indeed, use them to perpetrate abuse. Would a victim of domestic abuse still have to hand over children to an abuser when a protection notice or order was in place?
It is our understanding that the conditions imposed in any domestic abuse protection notice or protection order would override any pre-existing court order. Clearly, it would be in the interests of the person against whom the order is made, if they want to maintain child contact, to make the court aware of the existence of that order at the point when the application for a DAPO is being considered by the court. It would be for the court to decide whether it was proportionate to include conditions prohibiting the suspected perpetrator from contacting the children.
Would that be the case with the notice, given that the matter would not have gone to court and that it would be a short-term intervention? Would that take precedence over custody or access arrangements that a court had put in place? Could the police override a court decision in the short term with a notice?
I will give my colleague Katie McGarvey a chance to come in to contradict me if she thinks otherwise, but I think that the police domestic abuse protection notice would override any pre-existing court order for the relatively short period of time for which it is in effect.
I am just waiting to see whether Katie McGarvey will contradict you.
Yes, I would like to come in—not to contradict Patrick Down, but just to add a point of clarification. It is not so much that we are saying that a police protection notice or a domestic abuse protection order would overturn another court decision; it is simply a fact that the effect of a notice or order will be such that they place prohibitions on person A, who is subject to a criminal offence if in breach of those prohibitions. In effect, there is nothing to prevent the police or courts from imposing prohibitions on contacting a particular child, even if there is some form of contact order in place, and the effect of that is that, if a person breaches a notice or order, they will be subject to a criminal offence.
That is the rationale behind our saying that, in effect, the notices and orders take precedence. In essence, person A would not be able to have that contact while a notice or order was in place. However, as Patrick mentioned, it would be open to parties to draw to the court’s attention any outstanding orders that they wanted the court to take into consideration before imposing a protection order.
Given that the orders are time limited, would there be time to allow a victim of domestic abuse to go back to the courts to change custody arrangements? It would obviously allow time for harassment orders and the like to be taken out, but would the family courts be able to react in time to changes to custody if an order was in place?
We may have to come back to you in writing on that point.
That would be useful.
I have a final question. Given that both the notice and the order will have regard to the risk to children, will there be an opportunity for a child to have a notice or an order taken out in their own right?
No. The bill is specifically limited to partners and ex-partners. A domestic abuse protection notice can, for the purpose of protecting a person who is at risk, prohibit contact with children. Likewise, a domestic abuse protection order can do that, but it is made to protect a partner or ex-partner from the risk of abuse. A separate domestic abuse protection order would not be taken out to protect a child. Does that make sense?
It makes sense, but it does not recognise the damage that domestic abuse can cause to a child. However, I think that that is a policy issue rather than an issue of fact.
Liam Kerr has questions on the criminal offences.
As the convener says, I would like to ask about the criminal offences when a notice or an order is breached. I am looking specifically at sections 7 and 16. A breach of a notice or an order without a “reasonable excuse” would be a criminal offence. What is a “reasonable excuse”?
That would inevitably depend on the facts and circumstances of the particular case, but one of the conditions that may be imposed in a domestic abuse protection notice is that the perpetrator must not contact or approach the person at risk. In any given case, there could be exceptional circumstances where it might be necessary for the perpetrator to contact the person at risk. I would not like to speculate as to what they might be but if, for example, there were children in the custody of the suspected perpetrator for whatever reason—I dare say that that would be unusual—and there was an emergency, it is possible that there could be reasons why it would be necessary for the suspected perpetrator to contact the person at risk.
Likewise, on the bar on approaching, there could be exceptional circumstances, perhaps where the people happened to be in the same place at the same time even though they did not expect to be. It would be a matter for a court to decide in any given case whether there was a reasonable excuse for breach of the conditions. I would not like to try to exhaustively list the possible or hypothetical cases where that could come up.
That feels rather subjective. It is unlike the answer that you gave the convener at the start of your evidence when you said that “reasonable grounds” are objective. That is particularly important when the criminal penalty is potentially severe. It also begs another question. I understand that the breach of an order or a notice is not a criminal offence in England and Wales. Why are we proposing a different course of action in Scotland?
It might be helpful if I clarify that, in England and Wales, breach of a notice is not a criminal offence, but breach of an order is a criminal offence. They, too, have a condition that it is an offence if it is done without a “reasonable excuse”. I think that there is actually very similar provision in the equivalent law on breach of non-harassment orders and the conditions in them—it is a fairly standard approach.
On the reason why we have made breach of a domestic abuse protection notice a criminal offence, I note that the alternative approach that has been taken in England and Wales is, in effect, to provide the police with a power to arrest the perpetrator and hold them until a hearing can be held on an order. However, the view of the consultation respondents was that that was a much less effective deterrent than making the breach of a domestic abuse protection notice in itself a criminal offence.11:00
My final question is on a slightly different topic. It is about section 8, under which the police, but not other organisations or individuals, can apply for an order. Responses to the consultation suggested that it might be appropriate to widen that provision. I believe that in England and Wales it is proposed that a wider category of people can apply. Why did the Scottish Government not agree?
It comes down to the fact that the police, in so far as they are responsible for criminal investigations into domestic abuse, often have the most substantive evidence that abuse has taken place. In the case of criminal offences, they will be well used to tests relating to the thresholds around what are potentially sufficient grounds to take a criminal prosecution. They will also be aware of whether any criminal prosecution is on-going; therefore, there is not the same risk that any application for a protection order could override or conflict with a criminal investigation in any way. That is not to say that there is absolutely no case for potentially extending the provision to other organisations; however, on balance, we think that the best approach is to encourage the police to work with the other organisations, such as social work or third sector domestic abuse support organisations, to agree a protocol by which the organisations can report any concerns to the police, such that the police act as a central point in deciding whether to make an application for a domestic abuse protection order.
John Finnie will ask questions about that aspect of the bill and the powers in relation to social landlords. Mr Finnie, you might like to ask those questions of different witnesses, but it is over to you.
I will direct my first question to Mr Down. There are existing protective powers, and the policy memorandum talks about the intention for the bill to “complement rather than replace” those powers. The existing non-harassment order can only keep a perpetrator away from a home that they have already left; it cannot remove them from a home that they have a legal right to occupy. Under section 8, a civil court, but not a criminal court, can grant a DAPO. Why does the Scottish Government propose to restrict the power to grant an order to a civil court? Would that not be a useful addition to criminal courts’ powers?
We sought views on that matter in the consultation, and it is fair to say that there were mixed views on whether it would be helpful to allow the courts to impose a DAPO on conviction. However, the organisations that work most closely with victims of domestic abuse, particularly Scottish Women’s Aid, were of the view that it would not be helpful, due to the long-established precedent that, in criminal cases, non-harassment orders are widely used to keep a perpetrator away from a home.
I suspect that, in practice, that is because in a criminal domestic abuse case the perpetrator will probably have already left the home. The organisations’ view was that, because there is a time limit on domestic abuse protection orders, it might reduce the use of non-harassment orders; in the context of a perpetrator having been convicted and left the home, their view was that non-harassment orders, for which there is not the same time limit, are the more effective route. For that reason, we have not provided a power for criminal courts to impose DAPOs.
Would there be an opportunity in the circumstances in which someone appears from custody? The relationship between the civil and criminal courts and the levels of protection that are provided to victims vary. However, if someone were to appear from custody, surely that would be a worthwhile addition to the armoury of the sentencing judge in a criminal court.
Are we talking about the point at which someone who is being held in custody is being sentenced or the point at which a decision is being made about whether to grant bail pending a criminal trial, for example?
I was thinking of circumstances in which someone has been arrested—I appreciate that that is perhaps less likely nowadays—kept in custody because of the likelihood of reoffending, and appears in court the next lawful day.
Our view is that the powers that the police have to make a domestic abuse protection order at the point at which the court decided to release a person from custody would be more appropriate. However, in any case, it would be open to the court to impose bail conditions that would prohibit them from contacting or approaching the complainer in the criminal case. In those cases, the police and the courts already have powers to prevent a suspected perpetrator from approaching a complainer in a criminal case pending the trial.
Okay. Thank you very much. Maybe we will probe that further with the minister.
I have questions about housing for Ms Cook or Ms Nicholson. My first question is perhaps for Ms Cook. If the perpetrator is the sole tenant in a property and the person at risk is another occupier, section 18 does not allow the court to authorise the transfer of the tenancy from the existing tenant to the person at risk as a new tenant. After the court order is obtained, the social landlord must take the further legal step of creating a new tenancy for the person that they wish to remain in the property. If the court had been able to order the transfer of the tenancy, would that not have allowed for a more seamless process for the person at risk?
Anne Cook (Scottish Government)
I am sorry, Ms Cook, but I cannot hear you.
Sorry. Is that better?
Yes. Thank you.
I am sorry—I am using an iPad.
The point is that the court cannot order a transfer of tenancy; it is the social housing landlord who would offer the resulting tenancy to the victim. The contract is between the landlord and the person to whom they offer the tenancy. That is why we kept the bill like that. The landlord would offer the tenancy after the perpetrator has been ejected and a court decree has been obtained.
I am not sure whether Rachel Nicholson has a view on that.
Rachel Nicholson (Scottish Government)
Good morning, committee. I simply add that one of the grounds that must be met in order for the landlord to complete the process is that the victim or survivor wishes to continue to live in the property. I do not know whether that helps to clarify the position.
Was the rationale behind that not to disenfrachise the landlord in relation to their rights? The process would seem to be seamless if the court could simply do away with the resulting administration.
Perhaps we could revisit that and come back to the committee on it. Our understanding is that it is the landlord who has to offer the tenancy, as there is a contract agreement between the landlord and the tenant through the Scottish secure tenancy agreement. I am not sure whether a court could set up such a contract.
Okay. We will maybe hear back from you on that and on the issue of reasonableness, if you can provide some clarity on that.
Section 18 covers only social landlords. What does the Government propose for a person who is at risk and who lives in a private home or some other form of dwelling that is not covered? I am thinking in particular about the Gypsy Traveller community and the significant challenges that are associated with accommodation for them.
The provisions will not apply to the private sector or to Gypsy Traveller communities. They will apply only to tenants who have a Scottish secure tenancy—that is, a tenancy with a registered social landlord or local authority. The provision is all part of the work of the homelessness and rough sleeping action group and the work of the Chartered Institute of Housing and Scottish Women’s Aid-led committee on improving housing outcomes for people who are subject to domestic abuse. That group’s immediate work focused on the social housing sector.
There has been quite a campaign from the Chartered Institute of Housing and social landlords, who are keen to have the provisions in the bill so that they can be more proactive in supporting victims of domestic abuse who have tenancies with them. The group will now look at the opportunities and issues in the private rented sector. The group will give that issue due consideration and will consult on it to see what protections could be applied in that sector, where the scale of the issue is very different. There are 185 social landlords and approximately 245,000 private sector landlords, so that is a much more difficult issue. The decision was therefore taken that the bill would cover the social housing side, but that there would be on-going work on what similar protections could be applied in the private sector.
Of course, the vile thing that is domestic violence does not know any social boundaries and takes place in all social sectors. Is there any indication of a timeframe for that work? We certainly do not want to give the impression that the level of protection that someone has relates to the type of accommodation that they live in.
Indeed. It is appreciated that domestic abuse happens across all sectors, including the owner-occupied sector. However, I understand that work on that is about to start shortly.
Could you write to the committee with any further information on timeframes and the scope of that work, particularly with regard to those who are not covered in the private rented sector as well as the challenge of dealing with domestic violence in the Gypsy Traveller community?
I will do that.
Liam Kerr has a supplementary question, and so do I.
It is a brief question on something that has occurred to me. I believe that a notice or order will have legal effect only in Scotland. Therefore, if I was subject to an order, I could do something in England that was banned in Scotland, but that would not constitute an offence. My understanding is that, under the Domestic Abuse Bill in England and Wales, any notices or orders would have cross-border legal effect. If my premise is correct, will you explain why there is a difference?
It might be helpful if I first give a bit more detail on the rules on jurisdiction. You are right that it would not be an offence for somebody to breach an order while in England and Wales or outside the UK. However, the rules on jurisdiction are such that, if somebody decided to travel across the border to England and start sending abusive messages or to repeatedly phone the person who is protected by the order from another location—it could be England or anywhere else—that would be considered to be within the jurisdiction of Scotland, based on where the person who is being protected by the order is at the time.
On whether it would be helpful as a matter of Scots law to provide that breach of a protective order in England and Wales is an offence under Scots law, that is open to question, although I understand that something similar is being done in the English bill. We are talking about short-term orders that apply for a maximum of three months and which are principally intended to protect the person who is at risk in their home and to remove a suspected perpetrator from their home.11:15
My understanding of the English and Welsh bill is that it is intended not only to replace their existing domestic violence protection orders, but to act as a replacement for occupation orders and non-molestation orders, which are longer-term orders, in so far as they relate to domestic abuse cases in England and Wales. With those longer-term orders, there is perhaps a stronger case for having cross-UK jurisdiction, albeit that it is worth noting that, in order for the police to arrange for someone to be arrested for breach outside Scotland, they would have to get a warrant from a court. It could be quite difficult for the police to act immediately on the breach of a protection order that occurs outside Scotland, but that is an issue that we could consider.
I have a final question, which I have been puzzling away at since the beginning of our conversation this morning. It goes back to the issue of the circumstances in which the police would want to make a domestic abuse protection notice. Given that, for a domestic abuse protection notice to be lawfully made, a senior constable must reasonably believe that a person has engaged in behaviour that is abusive—such behaviour is a criminal offence under the Domestic Abuse (Scotland) Act 2018—in what circumstances would the police want to make a domestic abuse protection notice rather than arrest somebody on suspicion of committing a criminal offence that the Parliament passed into law a couple of years ago? I do not know that I quite understand the relation between the notice-making provisions in the bill and the substantive criminal offences, which already exist.
I will give a couple of examples. First, domestic abuse protection notices and orders are civil orders, so the test is the balance of probabilities. There could be cases in which the police reasonably believe that somebody has—to be blunt—committed an offence of domestic abuse, but in which they know from the outset that there is no corroborating evidence and no prospect of that, or that there is no realistic prospect of proving beyond reasonable doubt that such an offence has been committed, so they might decide that a domestic abuse protection notice is a more appropriate course of action.
Another example could be a case in which the police initially arrest and charge the suspected perpetrator with a criminal offence, they report it to the Crown Office for consideration of prosecution and the Crown Office decides that there should be no further proceedings. The Crown Office might decide that there is insufficient evidence to bring a criminal prosecution, but the police might nonetheless believe that the test under the bill—that there are reasonable grounds for believing that the suspected perpetrator has been abusive towards the person at risk and that the making of a protection notice or order is necessary to protect them from future abuse—has been met.
It is interesting that, with the bill, we are talking about having reasonable grounds for belief but that, with criminal powers of arrest, we are talking about reasonable grounds for suspicion. With the bill, it is the balance of probabilities that applies whereas, with the criminal law, it must be beyond reasonable doubt. Therefore, where the overall burden or standard of proof sits in relation to those two procedures is not straightforward, is it?
At this point, I would like to bring in my colleague, Katie McGarvey.
Thank you, Patrick. I just wanted to clarify something in relation—[Inaudible.]—the orders in question and a distinction between the underlying behaviour that is required for a notice or an order to be imposed and the underlying behaviour that is required for a criminal offence to be constituted.
Of course, as Patrick Down has said, domestic abuse protection orders are civil orders, so when they get to the court, the civil standard of proof and the civil rules of evidence will apply. When the matter is with the police, it will be a case of having reasonable grounds for believing that someone has engaged in abusive behaviour. Over and above that, I point out that such orders are preventative measures that are designed to prevent further domestic abuse.
The definition of abusive behaviour—the behaviour that is required in order that a notice or an order can be imposed—can be met by a single incident. A single incident or a course of conduct can form the underlying behaviour. The courts and the police also have to consider whether it is necessary to impose a notice or order to prevent further abusive behaviour, but I would just draw out that distinction between the domestic abuse offence in the 2018 act, in which there is a requirement for a course of behaviour, and the underlying behaviour that can form part of a notice or order, which can be a single incident or a course of conduct.
I thank you all for your evidence. You have said five or six times this morning that you will write to the committee with further details in response to our questions. I want to underscore the importance from the committee’s perspective of you doing that very quickly. We will have only one opportunity to put those points to external stakeholders, and that opportunity will be one week today. In our first evidence session after the Christmas and new year break, we will hear from the cabinet secretary. I am afraid, therefore, that none of us has the luxury of time. If we could hear from you with those details before we have to put those points to external stakeholders next week, we would be very grateful.
With that, I suspend the meeting to enable a change in witnesses.11:21 Meeting suspended.
11:24 On resuming—
15 December 2020
Second meeting transcript
The Convener (Adam Tomkins)
Good morning, everyone, and welcome to the Justice Committee’s 34th and final meeting in 2020. We have received no apologies this morning.
At agenda item 1, we continue our consideration of the Domestic Abuse (Protection) (Scotland) Bill; I refer members to the relevant papers in our pack. We will take evidence from three panels today.
I welcome our first panel of witnesses, who are all attending remotely, as are all committee members. We have with us Tam Baillie, who is vice chair of Child Protection Committees Scotland; Dr Marsha Scott, who is chief executive officer of Scottish Women’s Aid; and Lyndsay Monaghan, who is a solicitor with the Scottish Women’s Rights Centre.
I am afraid that, because we are—as is usual for the committee—very tight for time, we do not have time for opening statements from any of the witnesses. We have received your written submissions, for which I offer many thanks—they are, as always, published on the committee’s web pages.
Members have been asked to direct their questions to specific witnesses. Witnesses should not feel that they have to add that they agree with what they have heard, if they indeed agree with it. If they disagree, and would like to add something in response to what has been asked of another witness, I ask them to indicate so to me, using the chat box on BlueJeans, and I will come to them. However, we have a lot of questions and only a short period of time.
With that—too lengthy—introduction, I invite Rona Mackay to open the questioning. I ask for short questions and answers, so that we get through everything.
Rona Mackay (Strathkelvin and Bearsden) (SNP)
Good morning, panel. I will start by asking about the existing powers that are available to the police and the criminal courts. There are currently powers to restrict the movements of a suspected perpetrator, such as release on an undertaking, bail conditions and the use of investigative liberation. Can you explain what gaps there are in the existing powers that a domestic abuse protection notice would address?
The Law Society of Scotland takes the view that the proposed link between a DAPN and investigative liberation is not clearly articulated and there could be some duplication of powers. I would like your views on that. Perhaps Marsha Scott can start.
Dr Marsha Scott (Scottish Women’s Aid)
Good morning—I am happy to answer that. It is evident to Scottish Women’s Aid that there is a gap in the law, for two reasons. First, when we look at the gap between what criminal justice surveys tell us about the prevalence of domestic abuse in Scotland and what the reporting rate to Police Scotland is, and certainly from what we have been hearing for decades from women on the ground, it is clear to us that women do not feel that they are sufficiently protected under the existing scheme to enable them to call the police.
Secondly, such orders exist in a huge number of countries—in many countries, they have been in place for decades—as part of a scheme of protection for women and children; in fact, they are required under the Istanbul convention. There is a mass of opinion that says that, without emergency barring orders of this ilk, the ability of police to protect women and children is hampered. That is why we support the bill.
Tam Baillie (Child Protection Committees Scotland)
Apologies for the interference—I am using my reserve machine.
First, the existing measures are insufficient. For instance, there may be not enough evidence to put conditions on bail. The facility of exclusion orders, which came in under the Children (Scotland) Act 1995, was well intentioned, but it is hardly used, and it is actually quite difficult for women and children to exercise that option.
If the intention of the bill is to keep the family stable while they look at other options, I believe that it fulfils that function.
Lyndsay Monaghan (Scottish Women’s Rights Centre)
Good morning—I thank the committee for having me along today. The Scottish Women’s Rights Centre welcomes the bill and its intentions, despite the comments that we have made regarding some aspects of the bill that could be strengthened.
With regard to the existing measures, we see through our outreach work—such as our helplines and surgeries—that there is often a gap where women have reported domestic abuse but there is insufficient evidence for bail conditions to be put in place or to enable engagement in any further criminal process.
Where that gap exists, police often inform women about, or refer them to, civil solicitors so that they can try to get protective orders. However, there will be a gap in protection between the reporting of the abuse or the ending of the relationship and trying to put in place one of those civil protective measures, which could be a non-harassment order, an interim interdict or—as Tam Baillie mentioned—an exclusion order. We know that it is notoriously difficult to get those orders in place, depending on the circumstances of the case. We certainly hear and see that there are real gaps in protection, which I believe the bill seeks to—and could—address.
I have a brief follow-up; it is along pretty much the same lines as my previous question. As some of the witnesses said, there is a view that the bill could result in overlegislation. The system is already complex, and it is important that there is a clear pathway for victims to get protection.
Is there a danger that the orders could make the system even more complicated and hamper its work? The Government is considering a wider general review of civil protection orders. Does the proposal in the bill confuse matters, or is there a definite need for the orders?
There is no question but that there is a need for the orders. I am sympathetic to concerns about complexity, but if we weigh up complexity against safety, we know what must win. The bill is about putting in place a measure to plug the gap and then seeing how the law works and how the courts respond. If further amendments are needed, we can go there.
The systems are enormously complex, so I understand the argument that bringing in new orders could make things more complex. That might have some bearing when we discuss the length of time for which the orders apply. I see the order as a short-term measure, whereas we are aiming for longer-term stability for women and children. To come at it from a children’s point of view, the last thing that we want is for children to move around, losing contact with friends, family and their schools. Anything that can stabilise the situation, including in the longer term, is important.
I accept that the orders add complexity, but we can perhaps take the sting out of that when we discuss the length of the orders and how they will impact families.
I would echo what the other witnesses have said. The intention is that the orders and notices will complement the civil protective orders that are currently in place. There is a need—a great need—for such interim protection in the period before further measures can be put in place.
The only question now concerns the length of the orders and how they will complement the other systems that are in place. As Tam Baillie said, that may be a discussion for later.
Yes, we will come on to the issue of duration later on in the questioning.
Rhoda Grant is next.
Rhoda Grant (Highlands and Islands) (Lab)
The Government has made it clear that the domestic abuse protection notices and orders will take priority over other legal measures that relate to children, such as those that exist under the child protection system, court orders and measures to do with custody, but there is no such provision in the bill. That is what the Government has stated. Is that the right policy approach? Would it be better for such provision to be included in the bill, rather than the policy being set out in guidance?
I am pleased that the bill says that the views of children should be taken into consideration and that, at the notice stage and at the order stage, there is a requirement to consider the welfare of children. I suggest that “best interests” would be better wording to use, given that we are about to have legislation on the United Nations Convention on the Rights of the Child. For me, that requirement would mean that account must be taken of whatever else is happening in the child’s life.
One thing that is not in the bill is provision on contact arrangements that children might wish to be in place when they are asked for their views. It is not as straightforward as the bill simply overriding other requirements, because the sheriff already has to take account of the child’s welfare—I suggest that “best interests” would be better—and the views of the child. I can imagine that there will be many complex situations that might not lend themselves to one bit of legislation trumping another bit of legislation. The inclusion of the conditions that the sheriff must consider is a safeguard but, from my point of view, the provision is not perfectly worded.
I share Rhoda Grant’s concerns. I would like the bill to indicate clearly that domestic abuse protection notices and orders will supersede the arrangements under existing contact orders. We know that one of the most significant areas of danger, at the end of a relationship in which domestic abuse has been present, is the child contact that can happen when the parties no longer live together. It is important that it be laid out clearly, for the court and for the police, that child contact arrangements will be superseded by domestic abuse protection orders. They are short orders, and there is plenty of time for the contact arrangements to be put back in place, if that seems to the court to be appropriate. That period is a dangerous time for families, so it is absolutely critical that children and their mothers are not forced into dangerous situations as an unintended consequence of enforcement of contact.
To add to what Tam Baillie said, I point out that Scottish Women’s Aid is a bit concerned about the wording around seeking the views of children. We understand that that might not be possible when it comes to notices, but for orders, certainly, and throughout the bill, we would like stronger language to be used that makes it a requirement that the views of children be sought. That does not mean that it will always be possible to get those views. The language that is used in the bill at the moment, which talks about the child’s views being taken into account if the senior constable or the court is “aware” of those views, is not strong enough.
Does Lyndsay Monaghan have anything to add—in particular, on whether the provision that domestic abuse protection notices and orders will take priority over other legal measures should be included in guidance or in the bill?09:45
I do not have much to add to what my fellow witnesses have said. The Scottish Women’s Rights Centre’s position is that that needs to be clearer; it is not as clear in the bill as it could be.
Our main concern is about the impact on women if, for example, an order is put in place and that stops contact. We want the guidance—whether we are talking about guidance in relation to the bill or guidance that is provided to women by the police or the court, depending on the stage of the process—to be clear about what is expected of women. Are they required to facilitate contact, and what should that contact look like? We often find that, if new legislation is not clear enough, women get in touch with our service and ask, for example, what they should do. They ask whether they can allow contact, whether they should allow it, whether they are breaching anything and whether they can facilitate contact arrangements when no contact order is in place. The position needs to be clear in the bill and in the guidance.
Thank you. I will ask later about seeking children’s opinions.
Tam Baillie wants to come back in to respond to Marsha Scott.
On the interaction between child protection processes and domestic abuse protection orders, when we talk about the duration of orders it will be important to consider that some children will want on-going contact.
Contact arrangements are difficult at the best of times, but that does not mean that we should not attend to them as we try to build in extra stability and protection for the family. We have to deal with how we arrange contact. I know that such decisions are among the most difficult decisions for sheriffs, often because of the quality of the information that is before them. Contact is a critical and problematic area and has been for many years, so we should not just say that one bit of legislation overrides another.
John Finnie (Highlands and Islands) (Green)
Good morning. The good news is that no organisation that has offered its view to the committee has disputed that there is a need for an effective legal response to domestic abuse.
However, members of the judiciary and the Law Society of Scotland have expressed concern about the test in section 4. In particular, they are worried about the evidential threshold that must be met before a domestic abuse protection notice can be imposed. Given the wording of section 4, the Law Society and the Sheriffs Association questioned whether a DAPN will be a proportionate measure, in the context of the relevant rights under the European convention on human rights. How do the witnesses respond to that?
I will default to the same answer, which is that it is evident to us that the existing regime of protection is not working. I am slightly unsurprised by the objections of the Law Society and the Sheriffs Association, because we heard concerns of that kind when we were discussing the Domestic Abuse (Scotland) Bill. The reality is that we must weigh up the consequences of not acting.
The domestic abuse protection order will be a civil order, so the requirements will be less stringent, which I think will provide flexibility. Obviously, we must invest in police resources and training, because the police will be at the sharp end of the process. The evidence requirements do not seem to us to be draconian; they also offer some protection that should reassure the rest of the legal system.
We are happy that the definition in the bill reflects the current Domestic Abuse (Scotland) Act 2018 and is an appropriate definition. That leads me to say that, if a person were to report domestic abuse to the police, that abuse would—I hope—be considered to be a crime under the domestic abuse legislation, and protective measures would be put in place. However, we often find that there is insufficient evidence, so the high evidential threshold for the criminal element is not met. However, that does not necessarily mean that the behaviour does not fall into that category; that person therefore requires protection.
Although proportionality is not really something that I am able to comment on, I believe that there is a requirement for the protection. Very similar legislation in England and Wales is undergoing a review, and it has been agreed that the threshold of threat of violence or physical violence that they had down in England and Wales was simply too high and was not reflective of coercive control, psychological abuse, and women’s lived real experiences of domestic abuse. I am content with the bill and the protection that it would provide to women in those circumstances.
Proportionality is not my area of expertise. However, if I was to choose between the proportionate response and increased safety of women and, in particular, children, I think that I would fall on the side of increased safety.
The other aspect is that the evidence still has to go before a sheriff when we are talking about the imposition of an order. That is a matter to debate during the passage of the bill—the nuances of wording and criteria, so that people are satisfied that the bill strikes the right balance between a proportionate response and the safety of the family.
If I may, I will put a supplementary question to Dr Scott, specifically about the notices. Scottish Women’s Aid was very closely involved in drafting the bill. What can we read into your expectation of the frequency of use of notices and of proportionality? For what percentage of reported cases do you envisage notices being put in place?
That is difficult to answer, in part because it approaches the whole blurry area of women choosing not to report because doing so feels unsafe to them. Certainly, in relation to other provisions in the bill, we hear all the time about women not reporting because they are concerned about the consequences of being homeless. I think that notices will be put in place for a relatively small proportion of cases. In our view, they will not be issued routinely by police, because we hope that there will routinely be evidence for arrest and criminal charge.
However, we might well see notices in cases in which there is an investigation in which evidence has been put to the Crown, but it chooses not to prosecute because there is insufficient evidence, and the police still have strong concerns about the safety of the family. In such a case, a notice will be a critical tool that is not currently available. I suspect that we will see use of notices in such cases fairly consistently—at least initially—because obviously the police would not have reported to the Crown if they did not think that there was a safety issue.
I thank the witnesses very much. That is very helpful.
Liam Kerr (North East Scotland) (Con)
Good morning, panel. I will direct my question to Dr Marsha Scott first. Other panel members can come in if they feel that they have something to contribute.
In its written submission, Police Scotland suggested that it might not be a positive thing that the police will be able to issue a DAPN without the usual multi-agency involvement in decision making, and that the bill
“is not in step with the established partnership approach”.
Last week, the committee heard from the bill team that multi-agency working need not be enshrined in statute because it will just happen in practice. What is your view, Dr Scott? Are Police Scotland’s concerns valid? If so, how could we address those concerns?
I was quite surprised by that. Our experience is that the police rarely engage with multi-agency structures for an initial call or in situations in which a notice would be served. However, we really value multi-agency working because it brings more information to everyone’s decision making. However, multi-agency working takes time and the notice process is a short-term intervention that would be scrutinised by the court. That subsequent scrutiny can be informed by multi-agency information. The use of a notice does not avoid input from multi-agency settings, such as multi-agency risk assessment conferences—MARACs—it is just that such input would come later in the process.
You are saying that the bill reflects that approach, which is to give the police discretion, at the time, to decide whether they have time to do multi-agency working, and whether that would be productive or they need to crack on and do what they need to do. Are you comfortable with the current approach?
What you have described is our understanding of what happens now. The idea that following a call, a police officer would delay a knock on the door in order to call the local multi-agency group, which probably meets a couple of times a month, to consult it on whether they should use a notice makes no sense.
I understand. Thank you for that answer. I will hand back to the convener, unless Tam Baillie and Lyndsay Monaghan have something to add.
I have nothing to add.
[Interruption.] I do want to contribute, but I cannot type “R” just now.
We can hear you, Tam.
Please go ahead, we are ready.
Can I go? Sorry for taking up valuable time.
The notices are very quick and short. The police are first responders in the vast majority of protection cases in Scotland—those that involve children as well those that involve adults. There is nothing unusual about the police having to act singly as an agency.
In relation to child protection, the police are right to point to the multi-agency approach. In the process, there are initial referral discussions—IRDs—which happen very quickly when there are concerns about children. The police are one of three key participants—the others are social work departments and healthcare departments. Where there are concerns regarding children and a notice has been issued, I would expect that to be brought to the attention of the IRD process. The IRD approach is currently strongly endorsed in child protection guidance in Scotland.
There might be different timescales for MARACs, but in relation to children, there is a very short time between an incident and its being brought to the attention of the relevant agencies. That forms the bedrock of our child protection processes in Scotland.
I apologise for the messing around at the beginning of my answer.
That is okay, Tam. Thank you for those helpful clarifications.
Fulton MacGregor (Coatbridge and Chryston) (SNP)
My question follows from Liam Kerr’s question on multi-agency working and moves on to the referral of a person at risk to a support organisation. Do the witnesses think that a presumption to refer a person to support services would be a worthy addition to the bill? Does that routinely happen at the moment? I heard different views from the witnesses about the multi-agency work, but the referral issue is a bit different. Do you think that referrals to support services, when necessary, happen regularly already, or would a presumption in the bill be useful?10:00
Thank you for giving me the chance to say something that I wanted to say. There is a complex interaction of consent, risk and access to services when it comes to what happens on the ground. Our conviction is that the issue is not so much whether a referral is made but how and when a referral is made.
We would support an opt-out arrangement, rather than a presumption. Some of the local policing arrangements involve an opt-out referral to a Women’s Aid service, which we call a warm referral. The police say, “There is this service that we think would offer you helpful support and we will refer you to it. However, you have control over that and, if you object for whatever reason, we will not refer you; otherwise, our assumption is that we will refer you”.
That approach gives a strong message that the support services will welcome contact, without taking control out of the hands of women. There are two reasons why that is important. The first is that all the risk assessment research and literature across decades says that women are the best predictor of future harm. It is important to understand that. If there is an intervention with an accused, the best way to figure out how he will respond is to ask the victim. There may well be some complex interplay of factors in the victim’s decision on whether to take up a referral, so it still needs to be in her control. Secondly, we have evidence that, if a survivor is offered a referral in the first 24 hours of her contact with police, she is around 90 per cent more likely to take it up than she is if she gets the offer after the fact. Therefore, a referral needs to be made in a timely fashion.
There are some good relationships between police and Women’s Aid services across Scotland, and there is a lot of existing good practice. However, the reality is that practice is choppy and uneven, and the bill provides an opportunity to make crystal clear what good practice looks like.
Thank you—that is a good overview. Lyndsay Monaghan, do you have anything to add, specifically on whether a presumption to refer would be useful?
I echo what Dr Scott said about that. It is important to put the decision into women’s hands and not force it on them. I think that it would be better if they had the opportunity to opt out.
The support services that are available are invaluable. Our helplines and surgeries are sometimes the first point of contact for women, because they have stumbled across our number and phoned up. We find that, when a woman has not already engaged with a support service such as Scottish Women’s Aid, there is often a higher risk for that woman as she presents to us. We are a legal service, so we are giving advice about protective orders and the criminal justice process. I can only imagine that it would be invaluable to women to be able to access such information at the immediate point of risk. Scottish Women’s Aid can do the relevant risk assessments and ensure that the woman has the practical support that she needs, so I agree that such support is needed.
When a woman goes through the criminal justice process, the police should refer her to, and give her information about, victim support. We see the benefit of that. When a woman has been referred to Victim Support Scotland at that point, she will often have a lot more information about the process. However, where that fails and women do not get the information or, as Dr Scott said, they get it later in the process, they usually do not engage as much or do not understand what is going on. Perhaps there should not be a presumption that it will happen, but it is important that that should be at the police’s disposal.
Thank you. Does Tam Baillie want to come in on that question?
It makes sense to have something in the bill about the assessment of needs and, where appropriate, the provision of supportive services. I would be careful about having a presumption. I say that because, in the early 2000s, there was a presumption that all cases of children involved in situations of domestic abuse would be referred to the reporter. That practice, over many years, nearly brought our reporter service to a standstill, and there are now other ways of ensuring that services get to children.
The assessment of needs and provision of support services should be for all parties: the woman, who is most often on the receiving end, the children and the perpetrator. To have a long-lasting impact, we want to minimise the recurrence of incidents in future. Therefore, the issue of assessment and support goes right across the board for all the parties that are involved.
Thanks, Tam. You raise an interesting point. There are good programmes and good work out there. You will know about the Change programme, the Caledonian system programme and many others. A presumption that there should be support services for perpetrators, as well, may be something the committee should look at.
I see that Marsha Scott wants to come back in, but I ask her to wrap her response to that into her answer to Annabelle Ewing’s questions, which will pick up on closely related themes.
Annabelle Ewing (Cowdenbeath) (SNP)
Good morning, colleagues and panel. I have two key questions. I will change the order in which I ask them to flow better from the discussion that we have just had. In the process for the DAPN and DAPO, there is no requirement in the bill to obtain the consent of the victim. What are the panel’s views on that? It would, perhaps, happen as the norm, but that would allow for exceptions where it was not deemed appropriate, for whatever reason. What is your response to the current approach on that important issue?
We all understand that there is a balance there in terms of risk and agency, but we think that we need to maximise options, which refers back to what I was saying about women being the best predictor of their risk. In the case of notices, we want the police to be required to seek the views of women and, when possible, children, but we are clear that obtaining consent will be less easy to rely on in those circumstances and that it will not necessarily be a feature of the notice.
When we get to the orders, however, we have strong concerns about orders that are made without the consent or even directly opposing the will and wishes of women. I think that that refers back to what we were saying about women being the best predictor of their own harm. I also refer to Patrick Down’s testimony about the whole process working better if women support it.
However, we need flexibility in the system. We all have a duty of care, and if the court is convinced that the woman has been coerced, and if there is clear evidence that there is imminent danger to the children of the woman involved, we need to build that flexibility in. The more we can do to ensure that the court does more than “have regard” when it is aware of such evidence, and to require it to seek the views of women and children and listen to their input, the better the whole system will work.
If consent is not given in some circumstances, how will the system work? I understand that notices such as the DAPN are to be served to where the perpetrator resides. There are likely to be some cases—perhaps those that are more in extremis—in which that could be a very difficult scenario because the perpetrator will be served the DAPN in the home where he, in most cases, resides with the victim, and the victim is not really part of the process. Perhaps Lyndsay Monaghan could comment on that.
I agree; that is a dangerous situation that could occur, and it is one of the reasons why taking the views of the women and, when appropriate and when age appropriate, the children must be built into the process.
The DAPN is a short-term emergency protective order for women’s safety, so it is our position that views should be taken at that point but it is accepted that consent might just not be possible at that stage. As Dr Scott said, women are champions of their own risk assessment and they know best what is safe to happen. We often try to embody through our practice the idea that women know their own risks, they know their abuser best and they know what is likely to happen. If they can inform the process, it creates a safer process.
The DAPO is a longer-term order, but we consider that it might need to be longer than proposed. As it is a longer-term order, it makes more sense to take consent at that point, because it will have longer and wider-reaching impacts on the woman.
On the risk of the abuser still being in the home, one of the intentions of the bill is that the abuser will be removed or not allowed to return to their home. That would alleviate that risk, but certainly the woman would be best placed to inform that and explain.
In the criminal justice process, women’s views and their position are often not regarded. One of the biggest complaints that we hear through our helplines, surgeries and other outreach is that women just do not feel as though they are involved in the process or that they are heard. It is an access to justice issue when you do not feel as though the process is involving you. We would hate for that to be reflected in the bill.
Thank you for that comprehensive response. Before I turn to my second question, which I will address principally to Tam Baillie, could you say whether you feel that the bill reflects what you have just said in its desired policy intention?10:15
No, because the bill says that consent is not needed. Although it says that views should be taken into account, if it is clear that consent is not needed, especially for the order, views might not be taken into account. The bill has to be clearer that women’s views should be built into the process.
I turn to Tam Baillie for my next question, although it is absolutely fine if he wants to comment on my previous question. In terms of the scope of the bill, age thresholds are set. The threshold for perpetrators is 18, whereas it is 16 for victims. Do you have any comments on that?
That reflects the mixed position that we have with regard to children and adults. As I mentioned, we are about to move to a position in which, under the UNCRC, children are regarded as those under 18. However, there are still situations in which those who are 16-plus can be householders, for example. We have rather mixed legislation in Scotland for the 16 to 17-year-old age bracket. The bill has to reflect situations and maximise the safety of people who are caught in positions of domestic abuse. It is not satisfactory, but it reflects other legislation on that age group.
I will add to what has been said about consent. The bill is about the imposition of the police and courts on a family’s situation. There is an advantage in there being police action. It takes the weight of responsibility for the notice away from the mother in most instances. However, as soon as we get to longer-term provisions, such as the orders, the system is basically unworkable unless there is consent.
There is a little point about how the order appears, who takes the initiative and how the mother, in particular, can maintain her safety and that of her family if the order is imposed by a court, rather than her taking the initiative through court action. I agree that the longer the order lasts, the more we will need consent and the person’s views to be consistent with the imposition of the order.
I am sorry—I should have answered those questions the other way round.
I should share with the committee the point that women are the best predictors of their future harm, but they are not good predictors of homicide. The homicide in Britain study that was done by the Dobashes made it clear that women—[Inaudible.]—partner or ex-partners did not see that coming. We need something that is suitable when the danger is that high. I remind everybody that coercive and controlling behaviours are one of the few signals that we have that abuse is more likely to move into lethality. Therefore, it is less concerning to us that consent is not required for the notices. I fall back on what all the witnesses have said about the orders.
That is helpful.
Shona Robison (Dundee City East) (SNP)
We have touched on the issue of taking the views of a person at risk, in relation to both the bill’s drafting and how the system might operate in practice.
As you know, and as we have discussed already, the bill provides that the views of the person at risk should be taken into account if a domestic abuse protection order is to be made or extended. I put my question first to Marsha Scott first. I think that she said that taking the views of the person at risk must be a requirement, rather than their views simply being sought. Should the wording be changed to reflect that explicitly? How might that operate in practice?
The language in the bill suggests that the court has to pay attention to those views when it is aware of them. Frankly, we are concerned that that is too big a loophole. We would like the court to be required to seek those views and to pay attention to them where it can get them.
The process is different for children. I want to underscore that we need to be careful about that. We have lots of new language in the Children (Scotland) Act 2020, which talks about, and sets principles around, children’s participation. I look forward to the day when our courts know how to do that. We should enshrine children’s right to participate—and to do so safely—in decisions that are made about their lives in every piece of legislation that we can.
I am simply saying that we need to change the language to make it stronger and to make it clear that we expect all elements of the justice system to seek the views of both the women and the children. That should be the default, so that if the court does not have their views, it should be asked why not.
Could Lyndsay Monaghan say how she thinks that that might work in practice?
The bill says that consent is not required to make a domestic abuse protection notice, so it would have to be made clear that views must be taken to inform the process. The bill must be clearer.
As we have said, it is important that views inform that aspect. We agree that consent may be too difficult at that stage. The ideal is to get a woman’s consent, but that might not be possible, given the short-term nature of an order. However, their views must be taken.
On what the sheriff must take into account, when it comes to an order, we think that the woman’s views should inform the whole process. To echo what Marsha Scott said, we think that, rather than views being taken into account if they are available, views must be taken. If that is a question of timing, the order must last longer in order to allow that to take place. It is crucial that a woman’s views are taken, whether that is through a victim impact assessment or something else that the sheriff can access and take account of. That might include a woman being able to appear at hearings, if they so choose. I also think that something more substantial is required.
Would it be reasonable to include wording along the lines that reasonable steps should be taken to elicit those views, given that there may be circumstances in which views cannot be taken? There would need to be a caveat so that, if views could not be taken but all reasonable steps had been taken to elicit them, matters could proceed. Would you be comfortable with that?
Yes—or at least that views be taken where possible. There has to be a requirement, but there will always be circumstances in which a woman is incapable of providing her views, or it is clear that she does not want to provide her views but wants the process to continue.
I think that most women will want to be involved in the process and have a say, but, as you say, there will be times when a woman might not want to do that or is incapable of doing so. The process should take that into account, to make sure that the orders can still be put in place.
I will add to that from the perspective of children. A provision could be included on contact arrangements, for example, which could be subject to appeal if the views of children over the age of 12 were not taken.
I must say that the feedback from sheriffs is that the quality of the information that they have to go on is not always what they would deem appropriate for the level of decision making. Thankfully, we are making progress, but we have a long way to go before we can be assured that we are taking the views of children who are involved in court processes appropriately.
The other point is about the age and stage of the children involved. We should not presume that children under the age of 12 do not have a view, although there is a decline in the number of times that the views of children under 12 are given to the court—the rate declines the younger they are. There are real difficulties in getting the views of children who are under the age of five, who attempt to act out their views through their behaviour rather than articulate them. It takes time to get alongside a child so that they can have the confidence to express their views to you and so that you can be confident in what the child is saying.
I have mentioned that I believe that the length of the orders—two months with a one-month extension—is too short for the courts to be able to come to a reasonable view. There are challenges. I have no doubt that the wording could be strengthened regarding a requirement to take views, but consideration of the age and stage of the children, and the length of time that it might take to get alongside those children so that they are confidently able to express their views, is key.
We have about 20 minutes left for this panel and we still have questions from Rhoda Grant, Liam Kerr and John Finnie. If we keep up the pace, we should get through it all.
I have heard what the witnesses have said about taking the views of children. I think that Women’s Aid said that the Children (Scotland) Act 2020 should be the model for that. Do all the witnesses agree with that, or do they think that child welfare is not the paramount consideration in the bill? Should the focus be slightly different?
There is already some language about using advocates as supporters to help to consult children and get their views. As we know, children who were in our young experts group for the Children (Scotland) Act 2020 were clear that having an adequate supporter would be critical to their ability to participate in the system. The interests of children should be paramount—that should always be the bar when we make decisions.
I apologise—I am not sure that I am answering Rhoda Grant’s question. However—[Inaudible.]—for children to make their views heard. We know that there is no presumption in relation to the views of younger children in the 2020 act, but support needs to be in place for them so that they can articulate their views.
I totally support what Tam Baillie has said. Children’s workers and Women’s Aid can tell you that you cannot whisk a seven-year-old into chambers and have the sheriff ask them what they think and think that anyone will get a reliable response to those questions. That really needs to be done with children and by their supporters, whom they trust and have a relationship with.
That is similar for adult victims. This goes back to the referral question, which has to do with making sure that timely referrals have been made, so that by the time the court is seeking a woman’s views, she has had the support and counsel that she needs.
I will push you a little further. In places such as Australia and New Zealand, children are able to access orders and protections in their own right. Would that be worthwhile considering in the bill?10:30
That is a difficult question, because I always want children to have more rights, rather than fewer. However, with regard to the particular framing of the emergency order in the bill, the reality of children’s lives is that their safety in emergency situations often depends on their mother’s safety, and the single most important intervention that we can make is to ensure that the mothers are safe, because they are the most protective factor for the children.
Over the longer—[Inaudible.]—response, but, in an emergency situation, we blur the areas of who is in danger. For decades, our system has discounted how much harm comes to children because it is felt that, somehow, they are not harmed by what happens to their mothers. Similar controls, coercion or abuse is happening to them but those are invisible in the way that our system takes evidence; in addition, harm to mothers is harm to children. Therefore, weighing all those factors, this is the appropriate way to go, knowing that we would have child protection processes for use by children.
It would be less urgent for children to have an order of their own if they had real access to justice, rather than just on paper. We all know that children have a right to legal representation, and yet that right is barely discernible in the system. We should explore how to improve access to that right, which will help assuage some of our concerns about children not being able to raise an order on their own behalf.
Does Tam Baillie want to comment on that and say where we could access best practice in getting the real views of children in a way that does not cause them harm?
Yes, but I want to say two things before I come to that. First, there is a movement afoot in Scotland with regard to trauma-informed practice. In essence, we are talking about children who have been living through traumatising situations. I hope that we will be better attuned to their experiences in how we support those children.
Secondly, with regard to advocacy, I welcome the discussion and the progress that we are making in supporting children. I see little point in children having some agency within the bill unless we are prepared to support that. That is not to say that I do not welcome it. We have very few pieces of legislation in Scotland that give children the right to that agency. The Education (Additional Support for Learning) (Scotland) Act 2004 was one of the earliest examples, but there are few others. Therefore, if the committee were minded to really strengthen the position of children through the bill, I would welcome that.
We have many examples of good practice in supporting children. However, in my experience with, for example, children who are being supported in going through court cases with regard to child abuse, the courts have sometimes called on that counselling and support in evidence, which militates against getting early support to children. Therefore, while I welcome the focus on the views of children and strengthening their rights through the bill, that would have to be accompanied by confidence or a requirement that support be routinely given to children who are caught in domestic abuse situations. That would be different from where we are just now, because not all children get that support. Therefore, I am saying yes, but other things have to go along with that.
I have not come equipped with particular examples today. I am reluctant to say that I will provide those, but I will if I can. For the record, I would be happy to try to find good examples of children’s views being given in court situations in a way that could be pointed to as examples of good practice in Scotland.
That would be good—
I do not know whether I can; that might be quite reckless.
Does Lyndsay Monaghan have anything to add?
We will move to Liam Kerr.
Good morning. I direct my question to Lyndsay Monaghan first. Section 8 is about the making of domestic abuse protection orders. As it is drafted, the police—but nobody else—can apply to the sheriff court for such an order. That is in contrast with the proposed approach in England and Wales, in which the person at risk or the local authority can also apply for an order. I notice that it also contrasts with the approach that is used for a female genital mutilation protection order. Last week, the committee heard from the bill team that the Scottish Government’s view is that it is appropriate to limit that power to the police.
What is your view? Should the power to apply for a DAPO be extended beyond the police? If so, to whom? How can a joined-up approach be ensured?
I consider that the police are the appropriate body to have the ability to do the domestic abuse protection notices and the orders. However, we also consider that the provision on who can apply for the orders should be broadened. Speaking specifically of local authorities, statutory services such as health and social work, follow-up work after MARAC assessments, and housing services could offer the chance to assess people. The real reason for suggesting that is that quite often women will present at those services as having difficulties with domestic abuse. As those services are often their first port of call, we consider that enabling them to apply for an order, or at least make referrals to the police, is important for women’s safety and for ensuring greater access to justice for women.
I understand that that would put a significant resource strain on local authorities, and therefore it has been suggested that a power to make referrals might be more appropriate. However, even in that case, appropriate funding would have to be put in place for services across the board, including for support services. Appropriate training and resources and an understanding of domestic abuse are really important for the police, local authorities and anybody else who is involved.
Thank you. Before I pose the same question to Marsha Scott, I would like to press you on the good point that you made about the resource implications if that power is expanded. Does that not also suggest that we need to think carefully about the resource implications for the police? If they have the power to make the application, as proposed in the bill, are there serious resource questions for us to consider around that?
Most certainly. Adequate resources and funding have to be put in place to ensure that the bill is rolled out adequately. That starts with training and understanding, so that the police and anybody else who is allowed to apply for the orders have an understanding of risk assessment, to ensure that they can put in place the notices and orders safely. That is where it would start, but for the bill to be successful, officers will also have to be able to implement it, and they must have the time and the resources to do that.
Marsha Scott, do you have anything to add to that?
I do. Although we share about 100 per cent of those concerns, we would err on the side of preferring that the police request an order. We think that local authorities, social work officers and other agencies could refer to the police to do so.
My concern is about the unintended negative consequences of opening up the process to people who are in roles in which they are not necessarily required to have appropriate training. We know that one of the biggest miscarriages of justice in our system happens when a victim seeks safety and is arrested mistakenly as a perpetrator. I am happy that, in the first year of operation of the Domestic Abuse (Scotland) Act 2018, under the coercive control element in section 1, about 4 per cent of perpetrators were female, which is what we said the evidence suggested would be the case. Scotland needs to take credit for that, because it is quite unusual. In most places where there is a change in arrest policy, there is a spike in mistaken arrests of women as perpetrators.
If we broadened out the measure beyond the police, I would really worry that well-intentioned elements of the rest of the community would seek notices without really understanding who the likely primary aggressor is. We have good protocols between the police and the Crown Office. We have training in place for the police, and we can expect to do more training with the police if they need it as a result of the bill. However, I do not think that we have the capacity or the scope to train others in the community who might want to be involved. The logical thing is to start with an entity that we know is likely to have the infrastructure to implement the measures appropriately, and to use that entity as the focal point for the process, although we should absolutely welcome multi-agency engagement in referring people to the police.
I am sorry to intervene, but we will have to speed up, as we have only three minutes left for this panel. That was an important answer from Marsha Scott, but it was also rather long. I ask for short, sharp and crisp questions and answers for the next couple of minutes. I think that Liam Kerr is not quite finished, but I ask him to be quick.
I am grateful, convener.
There is a slight tension between what Marsha Scott just said, which I think was that we should limit the ability to apply for orders to the police, and her written submission, which says that the Scottish Government should
“consider options for other professionals to be granted the authority to apply to the court”
for an order. I am curious about that. Did I mishear you? Which should I prefer?
You did not mishear me; you heard our ambivalence on the issue. I would like other elements of the community to be able to request orders, but I am not sure that sufficient resources will be put in place under the bill to allow that to happen without negative consequences. If there was a way that sufficient resources could be put in place, we would support the proposal. That is a bit like what Lyndsay Monaghan said: if you put in the resources, we could support that approach but, if you do not, we cannot support it.
That ambivalence is clear, and it is actually quite helpful.
I will direct my question to Ms Monaghan. It is about the interplay between the civil and criminal courts. As the bill is configured, a DAPO could be imposed only by a civil court and not by a criminal court. Do you agree with that approach? I am interested in your views on the idea of criminal courts having the power to impose an order on sentencing, as well as perhaps at earlier stages in the proceedings.
I cannot really comment on that, because the criminal law is not my sphere. However, I agree with the approach taken in the bill: it should be a civil order. The civil courts have the appropriate framework in place to take that through, with interim orders and so on. I do not have much to add.
Briefly, Dr Scott, do you have a differing view on the potential benefits or otherwise of expanding the power to the criminal courts?
Briefly, the NHO process that is built into the Domestic Abuse (Scotland) Act 2018 is the more appropriate one. We know that it can be imposed for longer periods. It should do what it says on the tin as far as protection orders are concerned. However, adding the civil process on to the criminal one would not be helpful.10:45
My final question is for Mr Baillie and is on the duration of orders, which he touched on earlier. A view has been expressed—including by Dr Scott’s and Ms Monaghan’s organisations—that the proposed duration of three months is potentially too short, given the challenge of obtaining longer-term civil protective orders. If the bill were to be amended to make them longer-term protective orders, do you accept that the Government might have to revisit the evidential threshold that must be met before they could be imposed by a court?
The answer to both questions is yes. I absolutely agree that the proposed duration is too short, which puts pressure on the evidential aspects of obtaining an order. However, the prize is stability for the woman affected, her children and her family. That would satisfy one of the main policy objectives, which is that the family should stay put while the perpetrator is moved on. It would therefore be really worth while for the committee to worry away at the business of the appropriate period of time for such orders because, on my reading of it, a longer duration would more clearly fit with the policy intention. That is especially so given the limitations and the other measures that are available through the courts.
I ask Dr Scott and Ms Monaghan to say briefly whether, if an extension were to be put into place, they feel that that would impact on the evidential threshold that would be required.
The bottom line is safety. If the court is of the opinion that extending an order would increase the safety of the children of the woman involved, that needs to be the mechanism by which we decide how long the period should be. I do not think that having a period of four months would somehow mean that we would need a higher threshold of evidence. It is important to understand how slowly—[Inaudible.]—on housing decisions. The system needs to be based on safety. It is important that we do not encourage courts to think that just because a perpetrator has not reoffended in the three months during which an order has been in place it can be assumed that they are no longer a risk to children and women. We have so much evidence that that would not be true.
Thank you all very much—that is helpful.
I thank Tam Baillie, Marsha Scott and Lyndsay Monaghan for their evidence. I am really sorry that our session has been a bit rushed, but we have eight further witnesses to hear from today. With that apology, and the committee’s grateful thanks, I wish our first panel of witnesses as happy a Christmas as it is possible to have in the current circumstances.
I suspend the meeting for five minutes to enable a change of witnesses. We will reconvene at 10:53.10:48 Meeting suspended.
10:53 On resuming—
I welcome our second panel of witnesses: Gillian Mawdsley, who is from the Law Society of Scotland; Detective Chief Superintendent Sam McCluskey, who is from Police Scotland; Joan Tranent, who is from Social Work Scotland; and Professor Mandy Burton, who is a professor of socio-legal studies at the University of Leicester.
I thank you all for joining the committee this morning. We have about 75 minutes for this session, which is not quite long enough—the time that we have is never quite long enough. We will not take opening statements from you, therefore, but go straight to questions.
I will open the questioning. Given that the police and the criminal courts have existing powers available to them to restrict the movements of suspected perpetrators of abuse, is there a gap in existing protections and police and criminal court powers that a DAPN would address? I direct that question first to Gillian Mawdsley and then to Detective Chief Superintendent Sam McCluskey.
Gillian Mawdsley (Law Society of Scotland)
That is a good question, convener. First, we have always stressed that we are completely against any form of domestic violence and that, if there is a gap in the legislation, it would be appropriate to constitute those orders. However, at all points, including in the policy memorandum, we have asked for examples of scenarios in which such an order would operate that are not already covered by various means and protections in the current law.
Secondly, if it is concluded that the orders are appropriate, far more attention needs to be paid to the interaction with the criminal process and with the other existing measures that are available across the board. Overproliferation can cause confusion and does not serve the interests of any party.
I might come back in a moment on something that you have just said, but I want to hear from the other witnesses first. I put the same question to Detective Chief Superintendent McCluskey.
Detective Chief Superintendent Samantha McCluskey (Police Scotland)
Good morning. Similarly to what has just been said, we would very much support anything that enables us to protect victims better. We do not necessarily see the gap, but there is a real acknowledgement from us that we could make better use of existing powers. The recent changes in legislation, for example the Domestic Abuse (Scotland) Act 2018, as well as the training that officers have now had so as to recognise coercive control and the dynamics of domestic abuse, might start to have an impact.
So, there is no gap in the current law, but there is a gap in training and in the use of the current law: that is what I think I heard you say there.
Detective Chief Superintendent McCluskey
The training that we have delivered was good—it was excellent. It was very well received, and the feedback was very good. We have seen a shift in attitudes to how we approach domestic abuse from a policing perspective.
It would be fair to say that we have not previously used the existing powers to their full extent on domestic abuse, but that is hopefully changing now. We view the bill as providing an exceptional tool for use in exceptional circumstances, but it should not constitute the routine response.
Professor Burton, is there a gap in existing Scots law? If so, is the bill the way to fill it?
Professor Mandy Burton (University of Leicester)
Yes, I think that there is a gap in the protection that is offered—the short-term protection that can be provided by the police. At the moment, the police have powers under the criminal law, but the proposed orders are civil orders, and that is where the gap can be filled. Victims can get long-term civil protection themselves, or they can get remedies from the police under the criminal law, but they cannot get a short-term civil protective order at the moment. That is the gap that the proposed orders fill.
Thank you, Professor Burton. Finally, could we hear from Joan Tranent on this question, please?
I cannot hear Joan Tranent. Is her microphone unmuted?
I still cannot hear her. I ask broadcasting and information technology colleagues to fix the connection. I am sorry, Joan, but we will have to fix the problem and come back to you later.
Gillian Mawdsley, could you reflect on what you have heard from the other witnesses? I heard you say that we should not be legislating here unless there is a gap, but I am not sure if we really heard your view on whether there is a gap that needs to be fixed.
The difficulty is that there is not a substantial gap that we can see. The circumstances in which it would appear that the notice would operate involve a short-term situation where there is insufficient evidence for the police to arrest a perpetrator. It seems that the notice would be used in those circumstances as a means of protection. In that very limited circumstance, there is perhaps an immediacy or short-term measure that is not currently covered. How often and exactly where that would occur needs to be resolved, and there is a lack of clarity in the bill.
It is not that we think that there is a gap as much as that there might be a specific short-term situation where the provision might be required—the Thursday-to-Sunday scenario comes to mind. We can reflect on that in more detail during the evidence session, if you want.11:00
Thank you; that is a helpful clarification. I want to pick up on something that you said in your first answer, which was about the interaction between those provisions and other alternatives to custody or parole requirements that already exist in the criminal justice system in Scotland. For example, as I asked the bill team last week, where a person is required to remain a minimum distance from their home—such as with regard to electronic tagging arrangements—is the interaction between DAPNs and DAPOs and the rest of the criminal justice system an issue that needs to be directly addressed in the bill, or would addressing it through guidance be sufficient?
As you can imagine, the reply from us is that primary legislation should be as clear as possible, and there are gaps within the legislation that need to be made much clearer as the bill progresses through Parliament. I do not think that they are a matter for guidance because, if the issues arise and we are looking at them now, they need to be sorted where they can be. The senior police officer has already reflected on the fact that training, education and awareness are important components, and guidance—for instance, in relation to section 18—is clearly appropriate, so I do not suggest for one minute that there should not also be guidance on Police Scotland’s website. However, let us sort out those gaps within the primary legislation, where they exist. Certainly, we, the Sheriffs Association and the Faculty of Advocates are united in the view that there are areas and sections that require clarification.
Where we have orders that interact with other provisions, albeit under criminal, civil or family law, it is important that there is provision for which orders take priority, particularly if there is conflict. It is important that there is a joined-up approach and that the family is seen holistically, so that any measures that are being taken—under the criminal or other aspects of law—are working and pulling in the same direction.
Detective Chief Superintendent McCluskey
We would absolutely seek and welcome clarity in the legislation, because Police Scotland will be held accountable for how we apply that legislation, so guidance would not be sufficient.
Thank you; that is a really helpful steer from all of you.
Joan Tranent is still not with us, but we hope that we will reconnect with her in short order. Rhoda Grant will pick up the questioning from here.
While we are on that question, we understand that the orders and notices take precedence over court orders regarding child access arrangements and child protection orders. First, do you believe that that approach is correct? Secondly, like the last question, should that be explicit in the bill or should it be in the guidance?
Detective Chief Superintendent McCluskey
We are asking police officers to respond to emergency situations, to risk assess and make judgment calls on matters that might counter court-imposed orders. It needs to be really clear what takes primacy there, and that is not for us to decide; it needs to be explicit in the legislation.
Mandy Burton, is that the approach that is taken in the UK Domestic Abuse Bill? Could we learn something from that?
Potentially, we have a lot to learn from the approach in England and Wales. This past year, the Government set up a review of harm in child arrangement proceedings, because of the huge body of research that shows that the risk of harm that results from pro-contact presumptions in domestic abuse cases is a problem internationally. A large body of empirical evidence suggests that the question of harm in child contact cases needs to be taken seriously, and the Governments in England and Wales have put in train new processes for dealing with that risk.
We have to remember that emergency barring orders are a short-term remedy. If there is a conflict between a child arrangement order and an emergency barring order, the priority should be given to the latter, because it is a short-term remedy for the protection of the family. After that, revisiting the child contact arrangements in the domestic abuse protection order would be appropriate.
Priority should be given to the emergency protection, because we are dealing with a short period of time. In most cases, there will not be a child arrangement order in place anyway because the parties will still be together, which is why the protection notice is being issued.
It would be helpful if the legislation clarified that priority be given to the protection notice over any child arrangements.
Joan Tranent from Social Work Scotland has joined us. Joan, let us test that you can hear us and we can hear you.
We cannot hear Joan—the sound does not seem to be working. I am afraid that we have to move on.
Thank you. Can you hear me okay?
Yes, I can hear you.
Good morning to the witnesses. I want to ask about the test that is set out in sections 4, 8 and 10 that relate to respective imposition of a DAPN, granting of a DAPO and granting of an interim DAPO. Are any of the witnesses unhappy or unclear about any aspect of the test? Would you suggest any changes in the legislation, or will training and guidance be enough to address concerns?
That is quite a wide question; I am not sure where to start. There are some concerns about, for example, exactly when and in what practical circumstances the police would issue a protection notice. I have some difficulty in relation to how a senior police officer could exercise discretion in issuing a notice on the alleged perpetrator. I could expand on that point, in due course.
The standard of the burden of proof has been raised as an issue, so that could benefit from clarification. The fact that the orders are civil orders does not necessarily imply that the civil standard must always be applied; it might be felt that the criminal standard would be appropriate. There are probably more aspects on which I could comment, but those two are perhaps enough. I can expand as required, after others answer your question, if that is okay.
Because of the lack of time, it would be helpful if you could write to the committee with more detail on that point, if you want to add anything beyond your written statement.
Detective Chief Superintendent McCluskey
Police Scotland has concerns about the threshold. Much of the research was done on the England and Wales model, in which the threshold was considered by many people to be too high. In the bill, the threshold is potentially a little too wide, so we would welcome further discussion of that.
There is no component of risk in section 4. That is really important. People use the term “emergency order”; the police officer’s decisions on such an order will be risk-based. That is absolutely correct, but what we see now has morphed slightly from what the intention was for emergency barring orders. At the start, the focus was on couples who cohabit, but it now goes much wider. Furthermore, the bill covers a single instance, whereas the Domestic Abuse (Scotland) Act 2018 covers a course of conduct, which enables the police to make an holistic assessment of the circumstances and, of course, to identify primary perpetrators.
We would absolutely welcome more clarity on the threshold.
Should that clarification be in the legislation rather than in guidance?
Detective Chief Superintendent McCluskey
Professor Burton—do you have anything to add to what has been said?
[Inaudible.]—Gillian Mawdsley’s remark that it would be possible to have a criminal standard of proof for what is a civil order. I question whether the consequences of that would be helpful because, if you were to adopt a criminal standard for the making of emergency barring orders, there would be little point in having them, because they would not be filling the gap that has been identified in respect of the police being unable to take action under the criminal law, and protections via bail, for example—[Inaudible.]
It looks as though we have lost Professor Burton, as well.
Professor Burton could follow up in writing with any points that we did not hear. I am aware of the time, so I will end there.
Thank you for that—although, given that we now only have two witnesses rather than the planned four, we might have a little time in hand. However, we hope that we can reconnect with Joan Tranent and Mandy Burton.
Fortunately, John Finnie, who will come in next, has questions that are principally for the witnesses who are still with us.
Good morning. I thank you for your contributions today, and for your written submissions.
I have a question for Detective Chief Superintendent McCluskey. As legislators, we want to give practitioners the best tools. We are trying to understand the circumstances that will prevail at the scene of a domestic abuse incident, particularly with regard to countercomplaints and counterallegations. I appreciate that that is a common thing that the police have to deal with. How would that relate to what we are discussing today?
Detective Chief Superintendent McCluskey
The circumstances in which the police would envisage issuing a notice then subsequently applying for an order would be when someone has reported domestic abuse and we have removed the perpetrator from the address in order to facilitate investigation, but we had insufficient evidence to charge them and had to release them, even though we had assessed that there was still a significant risk in the home to the person and any children, so we were required to take steps to continue to protect them.
Statistics show that we have 6,000 such cases a year. That is why I am saying that there has to be an exceptional tool that is used in exceptional circumstances. We need to be able to take action. We can train officers, but that takes significant investment, so we need resources. In relation to on-going calls, we can have officers dealing with those and still have another 160 incidents a day to respond to appropriately.
I appreciate the demands on every organisation’s time.
In the example that you gave, you seem to imply that a third party was delivering information to the police, but correct me if I am wrong.
However, I would like to understand the situation that transpires when police officers arrive at the scene and parties make counteraccusations or the police are hearing two accusations. How would the bill impact on such a situation, if at all?
Detective Chief Superintendent McCluskey
I apologise if I gave the wrong impression that there was a third party. I am talking about officers attending live incidents. When there is a counteraccusation, there is a lot of risk assessment, and professional judgment comes into play. The bill is quite difficult for us because action can be based on a single incident, rather than an holistic view being taken of all the circumstances and any behaviour that has gone before. It is very challenging for officers on the ground, in relation to counteraccusations.11:15
People talk about the wrong person being arrested, but I think that officers are very astute; there is now much greater awareness of coercive control and who the real victim might be. I have huge confidence now in officers’ responses, but that remains challenging and is one of our concerns about the bill going much wider than the 2018 act.
Okay. Thank you very much for that. I will leave it there for now, convener. I will have some questions later for the detective chief superintendent about the police’s evidence.
Rona Mackay has a supplementary.
I have a question for DCS McCluskey, following on from John Finnie’s line of questioning. In a practical sense, if an officer were to determine that there was a need to apply for a DAPN, how long would it take to go through, from the point of deciding that it must happen?
Detective Chief Superintendent McCluskey
That is very difficult to say because we do not have a civil process that supports the criminal—[Inaudible.]—to be involved in. However, I can say that it takes, on average, nine hours for an officer to deal properly with a domestic incident. That is a significant demand on resources without the issuing of notices and so on being introduced.
That is great, thank you. I just wanted an idea of how long it would take.
I will stay on that topic, which is quite interesting. I have a question for Gillian Mawdsley. We just heard that the police will have to make some pretty significant and difficult decisions in pretty fraught circumstances. Do you foresee any liability issues for the police in relation to the decisions that they make if they get it wrong—if they take a particular decision and terrible things happen as a result, for example? Is there a liability issue that police should be worried about?
I think that the police are best placed to answer how they assess liability, but Police Scotland is a public sector organisation and is liable to criminal law and prosecution, as any other organisation is. There are also the full implications of aspects such as the Osman warning to consider. Having flagged up those two points, I say that DCS McCluskey is probably better placed to evaluate the liability that Police Scotland might attract, were it not to act. Certainly, there are currently frequent occasions on which the police have both parties and must make decisions. As DCS McCluskey has reflected, that is a common enough circumstance.
I am grateful for that response. I will throw the question to DCS McCluskey, now. Earlier, you said that Police Scotland would be liable for how the legislation is applied. Do you have concerns about what could happen on the ground in relation to that?
Detective Chief Superintendent McCluskey
We will be accountable under the legislation and have legitimate concerns. The bill allows for discretion on the part of police officers. It is about managing the expectations of other organisations in relation to when we might issue notices and apply for orders. If we take what might be perceived to be the wrong action, or if there is inaction on our part and it is perceived that we should have taken a step that we did not take, we might find ourselves liable. That is something that we still need to work out; there are legitimate concerns within Police Scotland about that.
Is there anything that the committee could do or anything that could be in the bill that might go some way towards addressing that, or is that a practical issue for when the bill is enacted?
Detective Chief Superintendent McCluskey
If we apply a little more scrutiny, get more clarification on the threshold and are very clear about the circumstances in which we would apply it, that will build a bit of confidence among police officers, who will be expected to make decisions and build the public’s confidence in our response, and their confidence that we will be lawful and proportionate and that the approach will be based on immediacy, urgency and necessity.
I would like clarity in the bill and, perhaps, time being taken to learn from England and Wales, where the previous process has been repealed because of issues that have been encountered, so new legislation is being implemented.
My final question, which is to Professor Burton, is on exactly that point. You heard Detective Chief Superintendent McCluskey. How have police forces in England and Wales addressed that issue and the issue of training for officers and staff?
Obviously, there were problems with the original notices—which could be encountered with emergency barring orders in Scotland, as well—particularly in relation to the duration of an order, to the fact that the police had very little time, and to the fact that there was bureaucracy surrounding the making of orders. Perhaps that is why there will be major reform of the process in England and Wales—although, obviously, the new orders in the new legislation are not emergency barring orders in the sense that the ones that are proposed in Scotland are, but are longer-term orders that are intended to be the go-to orders in domestic abuse cases. Therefore, we are not comparing like with like.
Obviously, training is a key issue for the police. There has been a very good training programme in place in Scotland since the Domestic Abuse (Scotland) 2018, which takes in coercive control and a broader understanding of domestic abuse. Rolling out the training and updating it to align with the process and procedural issues with protection notices will be crucial.
Detective Chief Superintendent McCluskey was correct to say that potential liabilities arise from not taking action. By taking the step to introduce in legislation emergency barring orders, the Scottish Government is fulfilling its obligations under international human rights law and the Istanbul convention. Likewise, the way in which the police enforce or do not enforce protection notices will reflect their potential liability under human rights legislation. Victims of domestic abuse—adult and child victims—have rights under articles 2 and 3 of the European convention on human rights, which are on the right to life and the right to be free from inhuman and degrading treatment.
Therefore, the bill is a very positive step towards meeting the obligation that the Scottish Government and the police have under human rights law to have in place appropriate levels and protective orders for victims of domestic abuse.
Thank you very much for that, Professor Burton. It is very good to have you back with us. I am sorry that we lost your connection for a while. If there are questions that you missed but which you want to answer, please feel free to follow them up in writing after the meeting. I am sorry that the connections do not seem to be as strong today as they often are.
Is Joan Tranent back with us, or have we lost her for the duration of the session? Can you hear us, Joan?
Joan Tranent (Social Work Scotland)
Yes, I can hear you. Can you hear me?
We can hear you now. That is excellent. I am afraid that we do not have time to go back over all the ground that we have already covered, but we will seek to include you in the questioning from here on.
Good morning, panel. I want to follow up on Liam Kerr’s questioning and my questions to the previous panel about referring people who are at risk to support organisations. Last week, when we discussed that issue with the bill team, we talked about whether there should be a presumption in favour of referring a person to support services and whether that would be a worthy addition to the bill. Obviously, that would require the police to explain why they have not made a referral in an individual case. Detective Chief Superintendent McCluskey, would that be a good move? Are such referrals already made routinely, or would it be good to have that as part of the bill?
Detective Chief Superintendent McCluskey
Every time a police officer attends a domestic incident, whether that is a criminal or non-criminal one, they will document concerns, risks and vulnerability. That information is shared with statutory and non-statutory partners.
In June, at the height of the pandemic, we moved to the public task model, where we seek views rather than consent, because when consent is not obtained that limits the opportunity for broader risk assessment, support and intervention.
We already share information quickly with our partners when officers attend a domestic incident.
Gillian Mawdsley and Professor Burton, what are the policy merits of creating such a presumption? Is there anything worth while in that?
Obtaining the best information that is available is a way to replicate the situation that you would have in court. The orders are creating an opportunity to plug the gap that has been described. In a normal case, such as a child welfare case, the sheriff would look at the balance of information and advice on both sides. If there is any way to replicate that through the significant nature of the notices and orders, that would be the best place to do that. The Law Society would support any way that that can be achieved by the agencies that are involved.
Referral to support is a crucial aspect of the success of emergency barring orders. If we look at the research evidence from multiple jurisdictions, it is clear that those that have the greatest success are those that offer wraparound provision and referral to support. A presumption of referral to support could therefore be helpful. It is not in the English legislation as it stands, but evidence from other jurisdictions suggests that it could be regarded as a model of best practice.
If there is to be a presumption of referral to support, services must be properly resourced to back that up. There is no point in saying that victims should have access to support if it is not properly funded.
It is helpful to have a presumption of referral, but victims should be able to opt out. Referral must be consensual if it is to be beneficial. Services should not be forced on victims of domestic abuse. Victims must able to opt out of anything that they do not find helpful to their long-term safety planning.
I refer members to my entry in the register of members’ interests. I am a registered social worker. I apologise: given the nature of our discussions I should have said that at the start. I hope that you will accept that I have done it now.
Joan Tranent, what are the merits of the presumption of referral to support?
Also, I do not know whether you heard him, but Tam Baillie, a witness on the earlier panel, said that, if there is a presumption in favour of support of people who are at risk, we might also need to support perpetrators and alleged perpetrators. That conversation referred to the Caledonian programme, which I know has been successful. So, as well as talking about the presumption of referral for those who are at risk, could you also comment on that idea?
I fully endorse a multi-agency approach. We cannot solve domestic abuse on its own. I accept that the police are the first to arrive at the house, but multi-agency sharing of information supports victims and their children.
In relation to perpetrators, in addition to the Caledonian project, the safe and together approach is being rolled out across many local authorities. That looks at perpetrators’ behaviour and their capacity for change. Ultimately, once we make an order, we need to look at future planning. The multi-agency approach is a key requirement in taking the bill forward, because no one agency on its own will be able to implement that change in relation to children and families living in a safer environment, so I fully endorse that approach.11:30
Convener, I see that Detective Chief Superintendent McCluskey has indicated, but I will leave that up to you—that is me finished.
Detective Chief Superintendent McCluskey
Our information suggests that the police are the most common referrers to support agencies. That is based on the recognition that we, as a single agency, cannot resolve the complex issues around safety and so on for women and children, who are primarily the victims in that set of circumstances.
In relation to the referral pathways for perpetrators—bearing in mind the fact that, for some of those people we might not have sufficient evidence to establish that there has been a crime or to report it—the Caledonian project is not national yet. There is a lack of resources there, so the question is, “Who would we refer them to?” It would be welcome if there were resources there but there are not—not nationally.
I have a number of questions for Detective Chief Superintendent McCluskey. Your written evidence was particularly helpful. I will ask about how you envisage things working—[Inaudible.]—again. The decision on whether to issue a notice must be taken by a police officer—an inspector or above—although it is fair to assume that it is unlikely that an inspector will attend the locus of any alleged offence. How do you see that working in practice? In your evidence, you alluded to the absence of powers to require the perpetrator to remain with you while the process is completed. How might that process work?
Detective Chief Superintendent McCluskey
To be perfectly honest, that is another of our concerns. We think that there is a lack of clarity and direction for us. You are right to say that an inspector would rarely be on the ground at a domestic incident. The officers would be expected to conduct a risk assessment based on what they are faced with and perhaps take the individual into custody to facilitate an investigation. If there was no evidence that would allow them to charge, they would have to approach an inspector and convince them. The thresholds are different: one is criminal. If they have reasonable grounds to suspect, they can bring that person into custody to facilitate an investigation and then convince the inspector that there are reasonable grounds to believe. We might have some challenges there and we need to invest in—[Inaudible.]—to get people to understand the true thresholds. As I understand it, the legislation makes the inspector hold that belief rather than the officers, so they will have to convince that person.
In an earlier answer, you alluded to risk, which is often assessed in conjunction with other parties. Is it your understanding that the information that the inspector would act on would be from the officers who attended the scene only or would there be engagement with other bodies?
Detective Chief Superintendent McCluskey
Given the restrictive timescales that apply for the issuing of a notice, the inspector would have to base their decision not only on the officers’ account and the evidence that they present but on all the other information that we hold in police systems, so it would be a single-agency assessment. The issuing of the notice would be an exceptional tool for use in exceptional circumstances as an emergency order, but the fact is that the next lawful day would not give us time to engage with our partners and to follow the multi-agency approach that we try to apply for assessing domestic abuse. That timescale would not give us the opportunity to do that in preparation for applying for the order. It would be a single-agency assessment for the notice, yes.
Okay. I stress that we want to make good legislation that has a practical effect. Police Scotland outlined three particular instances. The first related to there being
“no powers to require the perpetrator to remain”
until the completion of that process. The second was about a breach of the process. To save time, rather than reading them all out, the third might be summarised as being about the relationship between a notice, orders and an on-going report to the fiscal about the matter. How could the legislation reflect Police Scotland’ concerns? Does Police Scotland have specific asks?
Detective Chief Superintendent McCluskey
Yes. We have engaged frequently with the drafters and have tried to emphasise our concerns. We need clarity about where the orders will sit in relation to court-imposed orders or restrictions, such as bail and special bail conditions, other on-going processes, and family court orders. We are not clear, and we need that clarity on how the orders are going to work together.
Do you believe that that clarity requires to be in the guidance, or would something specific in the bill help the operation of what everyone agrees is a good intention?
Detective Chief Superintendent McCluskey
Again, it is about the threshold. We need clarity around the threshold. We need to look at whether it should focus on cohabiting couples, which would impact on child contact. During Covid, we have seen a real increase in the number of domestic reports to us that involved child contact. I can see real conflict there, unless the legislation is very explicit.
Okay. Thank you very much.
Gillian Mawdsley, on powers, will you comment on some of the matters that I have raised with the detective chief superintendent?
I support exactly what the detective chief superintendent has said. As the bill stands, enormous discretion is afforded to the police. Not for one minute am I suggesting that the police would not exercise that appropriately, but we are looking at someone being deprived of their home because of circumstances that have arisen.
We have talked about proportionality, human rights and all those other aspects. The threshold is causing an issue. For example, if a neighbour phones the police saying that they have heard violent shouting, would that be sufficient grounds for the making of a notice? I do not expect the detective chief superintendent to be able to answer that, because, quite rightly, she will say that it depends on the facts and circumstances of the case. However, we have already addressed the fact that it could be one incident and, with the greatest of respect to the police, I tend to feel that they would exercise their powers in favour of a notice, particularly in a situation of short-term immediacy, rather than have the risk of a much more significant circumstance arising. It is hard not to defend that.
I therefore think that the threshold is a real issue. Exactly what kind of evidence is required must be looked at. It is perhaps not so much a question of primary legislation, although I think that the bill would require some modification. The guidance has to illustrate how it is intended to work, and what kind of evidence would be sufficient to trigger a notice and therefore deprive a person of their home for 24 or 48 hours, or up to 4 days, because of court holidays, for example. I hope that that is helpful.
Okay. Thank you very much.
My first question is about the scope of the bill in relation to the age threshold. The bill’s provisions apply to perpetrators aged 18 or over, but to victims aged 16 or over. What are your views on that? Before I start with Gillian Mawdsley, I remind everybody that I am a member of the Law Society of Scotland and hold a current practising certificate, albeit that I do not currently practise.
As you have illustrated, there is always a problem with such age limits, which come in and work in different ways. I do not think that we have a set view on the matter. We recognise the reasoning that has been put, but we do not have a view that it is wrong or that it is right. There are obvious difficulties where there are thresholds of 16 or 18, but we will be happy to go along with the way that the bill goes. We do not have a problem with it. We recognise that others are putting forward different views, but we are prepared to accommodate that.
Other witnesses this morning have highlighted the position in Scots law regarding the ages of 16 and 18. The Children and Young People (Scotland) Act 2014 clearly states that, if someone is attending school, they are a child even if they are 18. I think that there are some issues in relation to the different ages, and I want to highlight that. I am not sure that I am legally competent enough to advise on what the outcome should be, but the police and others will need clarity on what the age groups for victims and perpetrators will be.
Professor Burton, will you comment on the age thresholds south of the border?
As I understand it, the age threshold in England and Wales is 18. However, I understand the reason in this instance for having the lower threshold for party B, the victim. Young people can be in a relationship and living independently at a lower age, so I see no difficulty in lowering the threshold for the victim to 16.
Thank you for that. My other question concerns the consent of the victim vis-à-vis the DAPN and DAPO. The bill does not include a requirement to obtain the victim’s consent to a notice or an order. I think that it is anticipated that there will be nothing to prevent consent from being sought and that that may be the norm, but that is not written in the bill.
DCS McCluskey, what is Police Scotland’s view on the proposed approach?
Detective Chief Superintendent McCluskey
Police officers already seek victims’ views every time they engage with them. As I said, we have adopted the public task model, whereby we will share information if we suspect that there is a risk and a support intervention can be put in place to support the victim.
There is a clear difference between seeking a victim’s views in relation to a notice and doing so in relation to an order. The order is court imposed and, to be honest, consent is probably required to allow us to police any breaches. There is a clear line between the two. However, I reassure you that we seek victims’ views on every occasion anyway.
My concern is about who it would be tasked to if we were required to obtain consent from individuals. Would there be an additional demand on the police, who would have to evidence all that for the application for an order, an interim order or an extension?
I hear what DCS McCluskey says in that regard; it is a fair point from an operational perspective.
My next point, which I raised with the previous panel, concerns the practicalities of serving a DAPN, even where views have been sought. It seems that the notice is to be served where the perpetrator resides, so the police could serve a notice on a perpetrator who was in situ in the matrimonial home—I use that expression as shorthand—while the victim was there. How do the witnesses foresee that working in practice?11:45
Detective Chief Superintendent McCluskey
I cannot actually envisage a set of circumstances in which we would serve a notice on an individual who was still living in the family home. To my mind, that would significantly increase the risk to the victim and any children, as well as any other person in the home.
The threshold in that regard needs to be clear, and the circumstances in which a notice should be issued need to be explicit. The notice has to be served on the individual in person—we cannot do that when they are still in the home, or we would create further risk. That is why we envisage using the order in exceptional circumstances where somebody has been in our custody and we cannot charge them, but we know that the risk is so great that they cannot go back to the family home. We would not serve an order in the presence of the victim or any children.
I thank you for that clarification from a practical perspective; I am not entirely sure that the bill states what you have said expressly.
I will go to Gillian Mawdsley on that point. Do you feel that the bill as it is currently drafted supports what DCS McCluskey has said?
On the issue of consent, there absolutely must be a requirement—from an article 8 perspective alone—that the views of the victim are sought.
Both I and Annabelle Ewing know that, in criminal law, criminal prosecution can still proceed—quite correctly—without a victim. The criminal law overrides the personal interest, and proportionality requires that.
In this case, there must be a requirement to ask for consent. If consent is not given, that is very difficult; one can see circumstances arising in which there are problems with the children and everything else. Nonetheless, I ask the Parliament to consider carefully when a notice would go ahead without the consent of the victim. We are talking about civil rather than criminal law, and the rights of the victim must be to the fore, however that aspect is factored in. That is a question for consideration. I totally support DCS McCluskey’s view that it needs to be absolutely clear in the bill, because the question is being raised now—it is not just something that may arise after the bill has been passed.
Whatever side the bill comes down on, views must be sought. The question whether they can be overridden in the situation is clearly a matter for legislation. That would allow us the clarity that we need as lawyers, and it would give clarity to the police, who say that the matter should not be left to their discretion.
Finally, I ask Professor Burton for a comparative perspective. What kind of approaches are taken elsewhere on that specific issue?
There are a variety of approaches across the different European jurisdictions that I have looked at. Some require consent, and others do not. It is an extremely controversial issue, because we want to support as far as possible autonomous decision making for victims. We do not want to replicate the coercive control and the abuse that they have suffered at the hands of the perpetrator of domestic abuse by imposing state control on them.
As far as possible, the victim’s wishes should be ascertained, as they are in criminal proceedings. As DCS McCluskey pointed out, we try to take into account the victim’s views. The legislation as it is drafted is a bit passive in saying that the victim’s views, when they have been sought, should be taken into account. Perhaps there needs to be a stronger requirement to actively seek the views of the victim. However, I do not think, looking at best practice in other jurisdictions, that those views can and should override other elements.
The utility of an emergency barring order can be dramatically reduced if the victim’s consent is required, because that opens the victim up to pressure from the perpetrator of the abuse not to give consent. In a situation of coercive control, we cannot assume that victims are able to give their consent to orders that might well be in their best interests and the interests of their children.
It is right that consent for the notices should not be a pre-condition, but more careful consideration must be given to the longer-term orders. I know that Scottish Women’s Aid has suggested that consent should be a pre-condition for the orders. I also agree with the DCS’s submission in relation to that. Orders without consent are practically unenforceable because you are relying heavily on the victims themselves to report breaches in order for them to be enforced. From a practical point of view therefore, it might well be that there is not much point in having the longer-term order without requiring the consent of the victim, given that it will mean that the victim is crucial to the effective enforcement of the order.
Rona Mackay was next on my list to ask questions on this area, but I do not know that there is anything left for you to come in on.
I have one brief question for DCS McCluskey. You said that your officers seek the views of the person in all cases. When those views are sought and the officer thinks that there is a risk, but the person does not consent, what happens? Are the children and the women left at risk? Will you talk us through the practicalities of that situation?
Detective Chief Superintendent McCluskey
Every case is taken on its own merits, and every set of circumstances is judged individually. When we seek a person’s views about referral or sharing information with a partner organisation, officers are trained to recognise that, sometimes, victims do not recognise the level of risk that they are facing, so a professional judgment has to be made about whether a meaningful intervention can be made through support organisations. The police cannot resolve all the other complex issues. Even when a person’s view is sought and the person says that they do not want to be referred to Women’s Aid or ASSIST or whoever, the officers might consider that the risk is sufficient that the information should be shared. That is the right way to go to enable that kind of holistic assessment of a situation.
Thank you for that. I just want to point out that the women’s organisations said that, from their experience, they have found that women are the best predictors of the risks to them. I just wanted to get your view on that.
Joan Tranent has indicated that she wants to come in on this point.
Can you hear me?
I just want to offer reassurance that, when police attend a domestic abuse incident, if the mother or the victim says that they do not consent to further information sharing, but the police think that there is a significant risk to the children, they can take other routes and an automatic referral to children’s services would be made, if not immediately then further assessment would be done the following morning. There are checks and balances in place if consent cannot be gained at the time.
Thank you, Joan; I think that we caught all of that.
We have about 10 minutes left and I have questions from Rhoda Grant and Liam Kerr.
As well as considering the views of the person who is at risk, police officers have to take on the views and welfare of any associated children before making a protection notice. DCS McCluskey, how will that be done in practice? Are you happy with the drafting of section 4 of the bill on that point?
Detective Chief Superintendent McCluskey
We have emphasised that we would like section 4 to be much clearer. Officers are encouraged to seek the views of children who are in the circumstances of domestic abuse; it is consistent with the Children (Scotland) Act 2020 that they seek those views where possible. However, we are talking here about an emergency situation in which officers will have to make quick-time and dynamic risk assessments and judgments. For me, the difficulty lies in relation to the resources and particularly the time that that requires; it is about the length of time that they have to seek views between the notice and the order.
Are you saying that it is maybe not possible to do that in relation to the notice?
Detective Chief Superintendent McCluskey
I do not think that it will be practically possible on every single occasion.
Should other family members or close friends be included in the notice? At the moment, it is just the person at risk and the children.
Detective Chief Superintendent McCluskey
The new legislation is very much aligned to the Domestic Abuse (Scotland) Act 2018 and the definition of an intimate partnership, which I think is correct. We have frameworks in relation to child protection and adult support and protection and there are other ways in which we can address risk to other individuals. The bill is very specific to domestic abuse and the dynamics of domestic abuse, and it is right that it stays that way.
I am sorry—my question was about domestic abusers who, after being taken out of the situation, turn their attention to family members or close friends in order to continue to perpetrate the abuse through a third party.
Detective Chief Superintendent McCluskey
That should be investigated as a domestic abuse incident and as a crime under the 2018 act. It is absolutely recognised that a perpetrator can use or try to use other family members, third parties and children to perpetrate the abuse on victims. The notices are very much about excluding perpetrators from the family home and keeping the family safe in that home environment in the short term.
This question is for Professor Mandy Burton. How does the bill compare with the UK Domestic Abuse Bill in relation to the points about taking on the views of children?
You are probably going much further in your approach to taking on children’s views, which I can see is aligned with other legislation that you have put in place. Obviously, when it comes to taking into account a child’s views, regard has to be given to their age and maturity.
I reinforce the points made by DCS McCluskey about the time pressures around taking children’s views into account, particularly in relation to the notices. I am afraid that I probably dropped out when the question about the duration of orders was being considered, but I note that the very short time period for the notices makes it impossible to gather all the information and evidence that is needed and to fully take into account children’s views. The question of taking into account children’s views is probably more relevant to the longer court orders than it is to the notices.
A point was made about authorisation being at inspector level, which will build in delay. As was said, the inspector does not attend the scene and will not talk to the children. More junior officers may be reluctant to undertake that type of task and pass the information back up to more senior officers. In England and Wales, the fact that a more senior officer had to be approached for authorisation was a significant barrier to notices being made.
There are significant practical problems in relation to taking into account children’s views in the making of a notice. However, I agree that the approach that the Scottish Government is proposing of taking into account children’s views for the longer court orders is very helpful, and the bill goes a good way towards establishing the appropriate weighting that should be given to children’s views in that process.
Liam Kerr wants to ask about who can apply for an order.
It is basically the same line of questioning that I was exploring with the earlier panel. Section 8 provides that just the police will have the power to apply for an order. Joan Tranent, given that local authorities have powers in relation to other protective orders, why is it your view that they should not have similar powers in this context?12:00
I listened to the earlier points about who else should have the powers, such as health, MARAC and homelessness services. We need to be proportionate here. The police are the first attendees when such incidents occur. Invariably, most incidents happen after hours, and in the past we have always had an emergency social work service on call, but those people often do not know the families that are involved. Police have a good understanding of their local communities and families; therefore, from a Social Work Scotland perspective, I would say that they are best placed to apply for the notice. After that, for the longer-term order, we should think about having a multi-agency approach. As I keep saying, there needs to be a multi-agency, not just a police-only, route.
In initial instances, the police are well suited to attend to the matter and make the appropriate assessment of risk at that moment.
That is in relation to notices. In relation to orders, I see from your submission that your view is that local authorities should not have the power to apply for an order. However, am I hearing that perhaps there is some wriggle room there?
We have stated before that that would require resources and training. In taking out any protection order, whether for adult support and protection or child protection, there is a civil route that local authorities can take. We would need resources, and there would need to be lots of further training, to allow local authorities to apply for such orders.
There would also have to be good communication. Housing comes under local authorities, so there would have to be a joined-up approach. From a Social Work Scotland perspective, I am not able to comment on whether my housing colleagues see themselves as being in a position to advocate for having such powers.
Detective Chief Superintendent McCluskey, you have heard Joan Tranent’s answer and the reference to taking a joined-up approach. In its submission, Police Scotland was concerned about the resource implications of the police being the sole responsible body. Will you talk about those concerns? If, as I think Police Scotland would envisage—[Inaudible.]—are to be extended, how do you see the joined-up approach that Joan Tranent was talking about—[Inaudible.]? All organisations would be working to the same considerations of need. What would need to happen to ensure that the police got all the information about any orders that had been granted, so that you could carry out your enforcement duty?
Detective Chief Superintendent McCluskey
Our colleagues in other organisations have expressed concerns about resources and infrastructure, and we have the same concerns. Significant investment in resources, training, legal services and so on would be required to enable us to implement the provisions, bearing in mind that, on average, 160 domestic incidents are reported to Police Scotland every day.
The timescales are prohibitive. It is fine that the police can issue a notice, but the fact that we have only until the next lawful day to apply for a court order will restrict our ability to engage meaningfully with our partners and have a multi-agency meeting. If that timescale was extended to seven days, we would have the opportunity to take a multi-agency approach and gather in all the relevant information.
I do not think that we should restrict the power to the police. With the right investment and resources, other organisations that have experience of applying for civil orders should be able to do so.
I do not think that members have any other questions. A number of you expressed concerns and reservations about the duration of domestic abuse protection notices and orders under the bill, so I wonder whether it would be helpful to bring them all together. By way of closing remarks, will Gillian Mawdsley bring to the committee’s attention any concerns that she has about the duration of notices or orders? I will ask each witness to do that.
With regard to the notice, as long as it is accepted that it could extend to a four-day period in circumstances when there are court holidays, and as long as it is restricted to absolute immediacy and the short term—[Inaudible.].
With regard to the order, our feeling is that three months—two months and then a further extension—is potentially a very long period. The bill is not clear as to the grounds for extension and what would be required in that regard. I remind the committee that we have referred to a plethora of other interacting civil and criminal orders that are on the horizon. Three months is a very long period when there are other measures that could be put in place. I appreciate that there might be urgency and people might not be able to get an interim interdict, for example, but within the longer period some of those other measures might be obtainable, so there would be no need for the order to exist for such a long time, and certainly not beyond two months.
Detective Chief Superintendent McCluskey
The time limits on the notices probably raise the most significant practical concerns for us. That is very challenging for us in terms of demand on resources and does not allow for a multi-agency approach.
I understand what Gillian Mawdsley is saying about the length of time for which the orders might apply, given the short timescales and it not being only victims’ rights that need to be considered, albeit that safety will always have primacy. In our experience, it can take a lot of time to build a victim’s confidence and to resolve all the complex issues around housing and so on. I am not convinced that two months is long enough to allow for meaningful intervention that is as effective as it could be.
One day is a very short time. A four-day period would be better in enabling people to get a fuller assessment, if that was required. I agree with the police about the three-month period. Things do not move quickly in housing, social work or anything else. More important, it could be a family that very few agencies know. Even three months is a very short time in which to get to know people, build up trust and so on. That is Social Work Scotland’s view.
Professor Burton, you have alluded to the time limits for notices and orders, but would you like to add anything?
Yes, thank you. Both are too short. Forty-eight hours is too short a period and, as the police say, it will create huge practical problems. A period of four to seven days would be much more helpful. The evaluative research on domestic violence prevention notices in England and Wales indicated that their short duration created huge problems and potentially led to a problem of significant underutilisation. We have heard evidence that there is a danger that the orders will be overused, but in reality the empirical research shows the opposite. There is a big danger of underutilisation of the orders and one of the factors that contributed to that, at least in England and Wales, was the short duration of the notices and the practical problems that the police then encountered in applying for the longer-term orders.
I agree with other submissions that two months is a relatively short time for a domestic abuse prevention order to apply. Gillian Mawdsley’s point that other orders, such as interim interdicts, are available, does not cover the fact that those remedies have to be sought by the victims through their own financial resources or, potentially, legal aid, if that is available. In contrast, DAPOs will not put financial and administrative burdens on the victim. Article 52 of the Istanbul convention is very clear that emergency barring orders should be available to victims without financial or other burden. Therefore, more consideration could be given to the duration, to give a practical opportunity to put in place long-term safety planning.
That is clear—thank you. I see that Gillian Mawdsley wants to respond to that, so the last word will go to her.
I will be brief. I would be very concerned about any extension of the notice period. There is an immediacy in the power being exercised by the police. The matter needs to go before a judicial authority at the earliest opportunity. That seems to me to be the proportionality and absolute substance of the bill. I want to stress that point. I understand the practical resourcing implications, but a notice should be used only in an emergency and because of the circumstances, so it is entirely appropriate for the period to be until the first court day. I would be very resistant to any extension beyond that.
Thank you for the opportunity to come back on that, convener.
I thank all our witnesses—Gillian Mawdsley, DCS McCluskey, Joan Tranent and Professor Mandy Burton—for their evidence. I am very sorry that we had some technical issues and that we lost one or two of you for a short period. Please feel free to come back to the committee with any supplementary evidence that you might care to give. We will put a number of the issues that you have raised with us to the cabinet secretary when he appears before us on 12 January next year. You have been very helpful with your time and expertise, so thank you all very much.
I suspend the meeting for five minutes to enable a changeover of witnesses. We will reconvene at 12:16.12:11 Meeting suspended.
12:16 On resuming—
I welcome our third and final panel of witnesses: Paul Short, who is homelessness manager at Fife Council; Callum Chomczuk, who is director of the Chartered Institute of Housing Scotland; Garry Burns, who is from Homeless Action Scotland; and Stacey Dingwall, who is senior policy manager at the Scottish Federation of Housing Associations. I thank you all for joining us this morning.
CIH Scotland said in its written submission that the power to apply for a DAPO should be extended to social landlords. I ask Callum Chomczuk to elaborate on that. Do the other witnesses agree with CIH Scotland’s view? For the sake of time, you can simply say whether or not you are concerned that such an approach could undermine the policy advantages of clarity and consistency that the Government says are associated with giving such powers only to the police.
Callum Chomczuk (Chartered Institute of Housing)
I thank the committee for inviting us to give evidence, and I am happy to comment on the question that Shona Robison raised. We asked that question of our members across the housing profession, principally social landlords, who were keen that the power be extended in that way. Social landlords have a huge amount of experience of making representations to the courts on behalf of tenants—for example, in the context of eviction processes and the removal of people as a result of antisocial behaviour.
DAPOs will be civil orders. If social landlords are able to act, they could be an important source of help for victims of domestic abuse. Many victims of domestic abuse feel uncomfortable about raising issues with the police, given the associations with criminality, but civil orders are different. Given social landlords’ skills and experience and their willingness to take on the new power, we think that the ability to apply for a DAPO would be an appropriate mechanism for them.
I recognise the concerns about making the system overly complex, but the focus is on making the bill’s provisions as useful as possible, so it would be appropriate to extend the bill to enable trained individuals, including housing professionals, to apply for DAPOs.
Can you foresee any issues in that regard? For example, would small social landlords have the capacity to apply for DAPOs?
As part of the bill’s implementation, statutory guidance and training will be developed, which—as previous witnesses have mentioned—is massively important. Shona Robison’s point is especially relevant because we know that social landlords, with some exceptions, do not have in place well-developed domestic abuse policies and protocols. I am hopeful that the legislation process will encourage more landlords to develop better policies and protocols. Ultimately, landlords have a responsibility to take cases to court in respect of antisocial behaviour and eviction processes, and looking after the welfare of their tenants is a core component of that.
There may be examples of where it would be more appropriate for the police to take the lead on taking such cases to court. However, where victims feel concerned about engaging with what they might perceive to be a criminal process, giving social landlords the ability to deal with those issues might be a more effective way to raise such concerns with the courts.
I turn quickly to the other witnesses, starting with Stacey Dingwall. Do you agree with that assessment?
Stacey Dingwall (Scottish Federation of Housing Associations)
Yes—I support Callum Chomczuk’s comments. If the purpose of the bill is to empower social landlords, tenants and victims of domestic abuse in such situations, that would seem to be a sensible approach to take.
In bringing forward the powers in the bill, statutory guidance will—I hope that our submission reflects this—be key for the SFHA’s members in supporting them to put policies in place.
I ask Garry Burns for his views.
Garry Burns (Homeless Action Scotland)
We fundamentally disagree with the extension of the power to housing officers, because the issuing of a DAPN can effectively result in a criminal charge for the perpetrator. We feel that, as the housing officer would be the person who issues a decree for eviction, it would create a conflict of interest for them to be involved at the start of the investigatory period.
I was watching the earlier part of the committee’s meeting. We have already heard that the police have had problems with issuing DAPNs. We believe, therefore, that if such criminal or civil matters are passed to housing officers, who may or may not have had previous issues with the tenants involved, that could create a conflict of interest, It would make it possible for a housing officer to be judge, jury and executioner in assessing whether someone should be evicted from their home.
That is interesting and helpful. I will go back to Callum Chomczuk for his response, but first I would like to hear from Paul Short.
Paul Short (Association of Local Authority Chief Housing Officers)
We support CIH Scotland’s position on landlords being able to take actions. The primary reason is that the first point of contact for people who are experiencing domestic abuse will often be their landlord. The issues that Callum Chomczuk raised about the reluctance of some victims of such abuse to take their situation into what they see as the criminal sphere would be to approach—[Inaudible.]
In addition, landlords are often part of a larger, wider and more multi-agency approach. Local authorities in particular have a long history in that regard, and we have worked in the multi-agency risk assessment conference sphere for quite a long time. Given that background, the committee can perhaps take comfort that our approach would come from a place of multi-agency working.
Thank you, Mr Short. It was not very easy to hear some of your comments—perhaps the problem could be picked up by our tech people.
Perhaps Callum Chomczuk can respond quickly to what Garry Burns said about a potential conflict of interest.
Housing professionals are just that: they are entirely professional. Landlords will be used to dealing with such situations. It is common practice for landlords to take cases to court and to provide the evidence base in order for the court to take action, as has been set out clearly by previous witnesses representing the courts.
In my view, the bill’s overriding objective is to give rights to victims of abuse and ensure that their voices are heard. Providing victims with greater opportunity and different access points lies at the heart of the bill, and giving social landlords and housing practitioners the ability to raise such matters will give confidence to victims who are reticent about going through the police.
I am concerned that if there is only one route to raising a domestic abuse protection order, that might limit the potential benefits. I hear what Garry Burns says, but I disagree on the risks. I think that there are greater risks if the bill does not contain multiple routes for accessing the court, which ultimately puts victims at the heart of the process.
I see that Garry Burns wants to come back in. For the sake of time, I ask him to comment briefly before he begins answering my next question.
With regard to the proposed maximum duration of three months for a DAPO, CIH Scotland suggested in its written submission that that period might be too short where a social landlord is trying to evict a tenant under section 18 of the bill. CIH Scotland noted that, in such circumstances, there might be advantages in providing greater flexibility around the maximum duration for a DAPO.
Do our witnesses agree with that? If so, how long would be necessary? Should the maximum duration be set in legislation or by the court? Should the court have to review the continuation of a DAPO in each individual case to ensure that the measure lasts no longer than necessary?
I will come to Garry Burns first, given that he wanted to come in again on a previous point.
On the previous point, if a housing officer or senior housing officer has significant evidence to demonstrate that domestic abuse is happening in a household, they can provide that to the police, which would allow the police to pick up and investigate the matter. It is not necessary to give housing officers the ability to stop somebody from being accommodated in their own home; we strongly believe that that should sit with the police.
Moving on to the next point, there are some issues around the timescale for a DAPO. You asked whether the duration should be set by Parliament or by the court. I suggest that, given that courts can provide some recourse to proportionality, the question of how long an order should last should sit with the court.
Perhaps the legislation should suggest a limited time period, but the courts should have some discretion in that regard, because it can sometimes take some time for housing associations or councils to start eviction proceedings, given how the courts work. Perhaps the courts should be given some discretion to extend or shorten the length of time for which the DAPO applies, if that makes sense.
Yes, it does. I put the same question on duration to Stacey Dingwall.
There are some potential issues around the proposed duration of three months, which could pass very quickly. I agree that there could be some provision for timescales in the legislation, but the courts should retain an element of discretion in such cases.
I hope that the committee can hear me a bit better now.
I agree that the timescale could be tight, and the process could end up being quite a rush for landlords, so I suggest that it should indeed be—[Inaudible.]
We just about got that.
Given that I was referring to your evidence, Callum, do you want to add anything?
I agree with what has been said. The bill is composed of two main parts, the first of which concerns the introduction of DAPNs and DAPOs and is complementary to the subsequent provisions on social landlords being able to end joint tenancies. We could get into a situation in which an order is applied but the person in question is allowed to return to the domestic setting, while the social landlord may still be trying to go for a formal process of permanent eviction. That creates confusion in the legislation.
Until we are able to ensure that there is a settled process and a settled outcome for the victim and for the perpetrator in respect of their accommodation, it seems appropriate that there should be flexibility around how long an order should last for. I do not think that we can prescribe the length in the bill. If we had a more streamlined court process, we could get to a quicker conclusion, so it is difficult to prescribe that in legislation. We want to see flexibility from the court in interpreting the law.12:30
Should the court have to review the continuation of the DAPO in an individual case?
Yes, that is entirely right. I would like the court to bear in mind that a settled housing outcome is required. It is in no one’s interests for a potential perpetrator to return to a domestic setting while a social landlord is half or three quarters of the way through the process of evicting somebody. That would undermine the whole intent of the bill. Until there is a settled outcome, therefore, it would be inappropriate to have an order come to a conclusion.
In relation to section 18, what are the key issues with the existing powers that are available to people who are at risk under the matrimonial homes legislation and to social landlords under the Housing (Scotland) Act 2001? There will be an opportunity for greater detail later but, in general terms, do you think that section 18 solves the problems that you have identified?
Overall, the current legislation does not empower the victim and the social landlord in those cases, but we hope that the new legislation will. Domestic abuse is a complicated situation and the bill makes it clearer where the appropriate power lies. Most importantly, if they know that the social landlord is empowered to take action, it removes the onus from the victim to do so. That is why we welcome the introduction of section 18.
With regard to the laws that are in place, we heard from previous witnesses that the Matrimonial Homes (Family Protection) (Scotland) Act 1981 has criteria around eligibility. In order to take action, people need to access legal aid or pay for it, so there is a barrier there. Also, under the 2001 housing act, there is a victim-led process, and the victim might have to give evidence in court. None of those are ideal circumstances for people who are going through a difficult process of trying to end a joint tenancy. Given the limitations in the law as it stands, we feel that the provisions that are set out in the bill would be appropriate and, as Stacey Dingwall said, would give the victims the confidence that a landlord can progress that on their behalf, so that they are not forced to go through assessment of criteria or put themselves in the unenviable position of going into court and making representations.
When a tenancy is terminated by the perpetrator of domestic abuse against a survivor, we want to make sure that it is embedded in the legislation that there is no discrimination against the survivor. Should that person have had issues around antisocial behaviour or rent arrears, that should not disbar them from getting a new tenancy, even though the perpetrator of the abuse might be evicted. In section 18 of the legislation, line 25 on page 13 refers to situations where “the landlord wishes” to create a new tenancy. That should not be a wish; it should be a duty to give a tenancy to the victim. If there are issues around antisocial behaviour or rent arrears, they should deal with that in the normal way. However, if we merely want to support people who are going through domestic abuse and survivors of domestic abuse, we should deal with the domestic abuse side first and, if there are issues around rent arrears, that should not disbar that victim or survivor from getting a new tenancy. Many local housing policies would do that. We want the legislation to ensure that, even if a victim has had issues with antisocial behaviour orders or with their landlord, they are entitled to that new tenancy, irrespective of the landlord’s views about that previous behaviour.
At the end of the day, we are dealing with a victim of domestic abuse. If there are other issues, we should deal with those after the person has a new tenancy, which gives them their rights.
Pegged on the back of that, Homeless Action Scotland would also suggest that, as well as evicting the perpetrator of abuse, we should be offering the survivor of domestic abuse the right to move, because a lot of that abuse might have happened in that home. If we accept and go ahead with evicting someone for perpetrating domestic abuse, surely there is an argument to be made that the survivor of that domestic abuse should be allowed a move by the social landlord or local authority. That is completely missing from the legislation. That approach would protect the victim, give them a new home and move them away from the place where they have been tormented for years.
We are moving into areas that Rona Mackay wanted to ask about, so we will come back to a number of those issues in a second. Callum Chomczuk, I see that you want to come in, but be patient, if you would, and we will come back to those issues.
Rhoda, do you have any further questions?
I have one further question. Under section 18, a court must make an order where various conditions associated with the use of the new grounds are met and either it is reasonable to make an order or the perpetrator has been convicted of an offence in the past 12 months relating to his or her abusive behaviour that is punishable by imprisonment. Are you happy with the threshold in the new test, and are you clear about what evidence will be required in court and from whom?
I am happy to answer that. The threshold has to be that there has been a conviction, in civil or criminal court, for domestic abuse. There should be an evidence base and there should have been a police investigation. That must be your minimum threshold, because, as mentioned by different witnesses, the complexities around domestic abuse can make it difficult to ascertain the facts, but at the very least, we should be looking at court orders and civil or criminal convictions for some form of domestic abuse. There is a plethora of scenarios in that regard.
I can see that Callum Chomczuk wants to come in on that. I wonder whether it would be appropriate where there are notices and orders or whether that would be—
I disagree with Garry Burns. That is too high a threshold for this kind of legislation. Housing officers and managers and social landlords, as well as social workers and other professionals, are well experienced and have a well-evidenced understanding of domestic abuse in that setting. Frankly, the victim knows best, and it is often the victim who comes forward to a social landlord to express their concern that they are a victim of domestic abuse and in need of that support. Creating an artificial barrier of a criminal conviction will deter people from engaging in the process and undermine the point about supporting victims.
I want to pick up on what Garry said about moving the victim in order to look after them. That tends to be the process that we have now among social landlords. Most tend to move the victim and the family, and sometimes that is done time and again, because the perpetrator does not want to move. However, we find that that punishes the victim. A great piece of work was done in Fife on that issue. It resulted in a report called “Change, Justice, Fairness”, which explores the experience of victims who have been moved by a system that is supposed to help them. With his experience, Paul Short might be able to speak to that.
I am reticent to make an assumption that we want to move victims. We want to listen to victims. For the most part, they know what is best for them and, in the majority of cases, they would like to stay in their own domestic setting. As drafted, the bill will help to give them that choice to stay in their home.
I know that Garry Burns and Paul Short want to come in, and that Rona Mackay wants to pick up the questioning in this area, so I will invite them to wrap what they want to say into their responses to Rona.
A key feature of section 18 is the obligation on social landlords to provide perpetrators with advice and assistance in relation to the availability of alternative accommodation. What issues does that raise for perpetrators, for people who are at risk, for local authorities and for registered social landlords? I will go to Paul Short first and then to Callum Chomczuk, Garry Burns and Stacey Dingwall.
I hope that my connection has improved and that people can hear me a little bit better.
I want to pick up on a point that was raised earlier about victims. There is a project in Fife that has been running for some time, working with people who have experienced domestic abuse. The key issue that people talk about is their ability to choose either to remain in the home that, in many cases, they love or, where appropriate, to move. It is entirely appropriate to allow people who are experiencing domestic abuse to have—[Inaudible.].
It is also entirely appropriate to work with perpetrators. In Fife, we are lucky to have the Caledonian system, through which we can work with colleagues in other agencies to refer perpetrators on to get assistance. One of the key issues that comes up is housing for perpetrators to be moved to, and the ability of housing officers to have a discussion with perpetrators is also important. We have to be very careful about issues around perpetrators, but we should be able to move them on where appropriate.
The rehousing of perpetrators is absolutely central to the legislation if it is to be effective. We do not want perpetrators to feel that they are being covertly punished; nor do we want any consequences for the victim. Indeed, if the victim knows where the perpetrator is living, that can be a real source of comfort.
Local authorities already have existing homelessness duties. As drafted, the bill provides for advice and assistance, but it is not ambitious enough; in practice, it could mean a lot less. I do not think that this needs to be set out in legislation, but the guidance will have to be quite prescriptive about some of the protocols that we would like to be developed between registered social landlords and local authorities to ensure that perpetrators can be rehoused.
I absolutely recognise that there are small registered social landlords in Scotland and, as Paul Short said, supply is an issue, so stock might well not be available. When we can facilitate a management transfer to another housing association or local authority, that would be appropriate. The provision of advice and assistance could be interpreted as being quite a low-level intervention and I am concerned that it could lead to a perpetrator not being rehoused successfully.
The existing legislation says that if a person is given an interdict to not present themselves at their normal family home, they can present as homeless. I do not, therefore, see the necessity—[Inaudible.]
Under the bill, the police can turn up and issue an order to say that the perpetrator cannot be at their home for the next two or three weeks. That person can either find their own accommodation or present to the local authority as homeless. The bill states that quite clearly—
So you do not think that the perpetrator should be given advice and support per se; they should go through the normal channels.12:45
I am not saying that they should not be given advice and support; I am talking about the immediate issue if, let us say, the police turn up to a domestic abuse incident on a Friday night at 6 o’clock and say, “You need to remove yourself” and issue a DAPN. If the person says, “I’ve got nowhere to go”, the police just need to say, “Turn up at your local council”, because the test for most homelessness is that the person has no place where they could reasonably go. If someone presents to a local authority and says that they cannot go home because they have been charged after a domestic abuse incident, the local authority must give them temporary accommodation. I see no need for a change in legislation to give alleged perpetrators additional protection. That does not mean that people cannot go back to their housing association and ask to be moved to a different place—although the reality of that happening is almost zero. They have the right to homeless accommodation if they are homeless because they have been charged with domestic abuse.
I reiterate that it is important not to underestimate the experience of social landlords—compared with landlords in other tenures—and their important relationships with tenants. We can all appreciate that this year, when social landlords have worked closely with tenants to provide support, particularly around rent arrears that have arisen through no fault of the tenant. Social landlords will certainly work with victims of domestic abuse.
For our members, the provision on advice and assistance goes far enough. As Callum Chomczuk said, a lot of our members are small social landlords and it would not be practical for them to rehouse, given not just stock availability but the potential for proximity to the victim. It is important that the guidance provides for advice and assistance that is not just a tick-box exercise. Proper advice and assistance must be given to enable the perpetrator to be rehoused. We do not want anyone to be directed into homelessness. We would welcome strong partnership working on that.
Are you saying that you do not think that that needs to be in the bill?
I do not think that there should be an obligation to rehouse. There should be a requirement to provide information and assistance.
Garry Burns wants to come back in. Please be brief; that would be helpful.
On the point about housing associations moving people who are victims of domestic abuse, that literally does not happen, which is why so many women and other victims of domestic abuse present as homeless. If they go to their landlord or social landlord and ask for a move because of domestic abuse, they are told to go down the homelessness route—anyone who works in a homelessness advice centre will tell you that that is what victims are told to do.
The idea that housing associations can move people is nonsense. However, they can have working arrangements with other associations that involve moving people to different areas in their locale. Also, there is nothing to stop local authorities moving victims of domestic abuse to another local authority, without people having to go down the homelessness route.
The homelessness route has been shown time and time again to be really bad for the people who go through it. It is there for emergencies and we really do not want to send victims and survivors of domestic abuse down that route when we can have legislation that allows people to move legally within local authorities and housing associations.
Thank you. We appreciate those comments.
John Finnie has been waiting patiently to ask questions of this panel.
I have a specific question for the Chartered Institute of Housing about future reforms and gaps in the legislation. Mr Chomczuk, the Scottish Government advised us that the working group on improving housing outcomes for women and children experiencing domestic abuse, which the CIH co-chairs with Scottish Women’s Aid, plans a second phase of work, which will relate to private sector housing, including owner-occupied and privately rented housing. Will you explain what that work will cover, the timeframe for it and, in particular, whether it will have regard to the unique and often overlooked situation of the Gypsy Traveller community?
Unfortunately, I cannot go into much detail. We have not agreed the scope of the work at all. We have just concluded our work on social housing and trying to improve the housing outcomes for women and children who are experiencing domestic abuse in that sector.
You raise a useful point about the scope of the group’s work. My co-chair from Scottish Women’s Aid and I have not had time to reflect on what that work will explore. The work this year lasted for six to nine months. I hope that the group will start work early in the new year and that something will come out of that towards the latter part of 2021. Looking at the experience of the Gypsy Traveller community may be inappropriate to our scope, but we have not yet pinned down the brief.
Okay, many thanks. Perhaps we will raise that with the cabinet secretary.
That is all the questions that the committee has for this panel. It has been a focused and useful session. I thank Paul Short, Callum Chomczuk, Garry Burns and Stacey Dingwall for their help on the housing elements of the bill. We are grateful to you.
That brings the public part of the meeting to a close. Our next meeting will be on Tuesday 12 January, when we will continue our consideration of the Domestic Abuse (Protection) (Scotland) Bill by hearing from the cabinet secretary.
I thank all members of the committee and all the parliamentary staff who support us: the clerks and—especially, this year—the broadcasting staff, information technology staff and everybody who works behind the scenes. I also thank all the witnesses who have helped us with their time and consideration, not just in this inquiry but in all the inquiries that we have undertaken this year.
As the Prime Minister said, I wish everybody a merry little Christmas this year.12:52 Meeting continued in private until 13:05.
22 December 2020
Third meeting transcript
The Convener (Adam Tomkins)
Good morning and happy new year to everyone who is joining us. Welcome to the Justice Committee’s first meeting in 2021. We have received no apologies this morning.
Agenda item 1 is to continue to take evidence on the Domestic Abuse (Protection) (Scotland) Bill. I refer members to the relevant papers in our pack.
I welcome to the meeting the Cabinet Secretary for Justice, Humza Yousaf, and his officials, all of whom are attending remotely—indeed, all committee business in the Scottish Parliament will be remote for the foreseeable future. I intend to allow up to an hour and a half for questions to the cabinet secretary and his officials on the bill. As we normally do, we will direct our questions to the cabinet secretary, but he can bring in any of his officials at any point if he wishes to do so.
I invite the cabinet secretary to make any opening remarks that he wishes to make before we get under way with the questions.
The Cabinet Secretary for Justice (Humza Yousaf)
Good morning, and happy new year to you all—I think that we can still get away with saying that, although it is mid-January. I hope that you all had a restful break, and I look forward to the evidence session ahead.
I thank the committee for inviting me to give evidence on the Domestic Abuse (Protection) (Scotland) Bill. I have heard with interest the evidence that has been presented to the committee, and I think that it would be helpful if I briefly set out the intended scope and purpose of the protective order scheme. I hope that that will assist the committee in its scrutiny of the bill.
The proposed scheme of domestic abuse protection notices and orders is intended to provide protection and breathing space—I will probably use that phrase fairly often in my evidence—for people who are experiencing domestic abuse, which will enable them to take steps to address their longer-term safety and, indeed, their longer-term housing situation. In particular, it might be quite difficult for a victim of domestic abuse who is living with the perpetrator to take steps to address their longer-term safety, especially if that involves taking action in the civil courts to remove that individual from their home. As some of those who have given evidence to the committee have noted, that could result in a victim of domestic abuse having no alternative to making themselves homeless to escape an abusive partner. I suspect that we, as members of the Scottish Parliament, have all dealt with such cases.
The scheme is not intended to replace existing criminal and longer-term civil measures to protect people who are at risk of domestic abuse; it addresses a very specific situation in which it is not possible to use criminal justice measures such as bail conditions or undertakings to provide protection to a person at risk and the police consider it necessary to take action to provide emergency protection to the person and provide them with breathing space to take longer-term steps to address their safety and their housing situation. That could, of course, include making an application for a civil order, an interdict or, indeed, an exclusion order.
The bill also makes provision to enable social landlords to transfer a tenancy to a victim of domestic abuse. It does that by creating a new ground on which a social landlord can apply for a court order to end the tenancy of the perpetrator with a view to transferring it to the victim of domestic abuse or, if the perpetrator and the victim are joint tenants, to end the perpetrator’s interest in the tenancy and enable the victim to remain in the family home as the sole tenant.
Those provisions will help to improve the immediate and longer-term housing outcomes for domestic abuse victims who live in social housing and wish to continue to live in the family home, including by helping to avoid homelessness. They also help to address the real issue of why victims and their families rather than the perpetrator should have to leave their homes, belongings and, indeed, communities to seek safety, with the perpetrator remaining undisturbed in the family home.
Having the legal ability to end a perpetrator’s tenancy in domestic abuse cases without the victim being required to commence the process themselves will allow landlords to take a more proactive role in supporting and protecting victims of domestic abuse and will enable the victim to remain permanently in the family home.
I am happy to take any questions that the committee has about the bill, and I apologise in advance if members can hear some screaming children in the background.
Thank you very much, cabinet secretary. No apology is necessary, nor will one be accepted, on that front. A number of us are struggling with juggling family responsibilities and work.
Rona Mackay will open the questioning.
Rona Mackay (Strathkelvin and Bearsden) (SNP)
Good morning. I want to ask you about the Law Society of Scotland’s view. You will know that it has questioned whether there is a gap in the existing powers that are available to the police and the criminal courts that necessitates the introduction of the domestic abuse protection notice. What is your response to that?
I have looked over the Law Society’s evidence. I did not get to watch the evidence session with the society live, but I have seen its written evidence. The issue of whether there is a gap in the law has been raised on a number of occasions. For me, the biggest gap in the law relates to the civil orders that are in place at the moment. The onus to apply for an interdict, an interim interdict or an exclusion order is on the victim, and that can be exceptionally difficult. I suspect that, as members of the Scottish Parliament, all of us have experience of domestic abuse cases, and we can well imagine how difficult it must be for a victim in having to apply to a court in such circumstances. There are a number of processes that they must go through before they can apply for a civil order—for example, it must be determined whether they are eligible for legal aid. The scheme under the bill is different, because it will be for the police to apply a domestic abuse protection notice, a DAPN, and then to apply to the court for a domestic abuse protection order, a DAPO. The onus to do so will not be on the victim. That is where I think the biggest gap is.
A number of the other protective measures that are in place require the investigation of a criminal offence. With investigative liberation, as soon as an investigation into a criminal offence had concluded, the suspected perpetrator would be free of any conditions on them. I think that what is proposed in the bill addresses the gap; that is not to say that it might not overlap with bail conditions or investigative undertaking conditions. However, DAPNs and DAPOs are very different. They are unique in that they do not rely on a criminal offence having to have taken place. Those are probably the two areas where I think there is gap that the protection orders plug.
So you do not believe that there is a risk of overlegislation or duplication of powers. Do you think that there will be clear pathways for the police and for victims to use with domestic abuse protection orders?
As I said, I would not consider what is proposed to be a duplication. There could end up being an overlap. If a criminal investigation takes place, there could be investigative liberation, but when the criminal investigation comes to an end, a DAPN could be applied. There will, I hope, be a seamless transition between investigative liberation and a protection notice being put in place, which should mean that there will be no gap in protection for the victim.
I would not say that the bill will result in a duplication of powers. I hope that it will lead to a seamless transition, where that is necessary.
So a domestic abuse protection notice could be described as a safety net for the victim until longer-term measures could be put in place.
Police Scotland has given the committee its views on the matters that you have been discussing with Rona Mackay. Police Scotland feels that the new powers in part 1 of the bill provide an “exceptional” tool for use in exceptional circumstances, and that those powers should not constitute a routine response. Some of the supporting information that the Government published with the bill, such as the financial memorandum, talks about the new powers being used in only 1 to 5 per cent of domestic abuse incidents recorded by the police. Do you stand by the view that the new powers will be used in only one in a hundred, or perhaps five in a hundred, call-outs? Given our current circumstances, is it really a priority for Parliament to legislate on a matter that will be used in only one in a hundred domestic abuse call-outs?
As you were talking, I looked back at the financial memorandum. It is important to put on record that we are not making specific estimates. If you have the financial memorandum in front of you, you can see that it provides a range of illustrative estimates of what the likely costs would be for certain levels of use of the power. There is no central estimate of what the level of use will be, but there are estimates of what the cost would be if the power was used in, for example, 1 per cent of cases.
You are essentially correct. Use of the power will depend on Police Scotland’s operational approach. We can look at other jurisdictions where there are similar protective orders, although those are different policing landscapes, but, ultimately, it is the operational approach taken by Police Scotland that will determine how often the notices or orders are used.
The question of whether this is the best use of parliamentary time is interesting. I did a bit of quick arithmetic. I have statistics that show that Police Scotland attended over 60,000 domestic abuse incidents in 2018-19. If applications for orders are made in only 1 per cent of incidents, then 600 orders will be made every year, affecting 600 families and their children. If you multiply that by five to reflect the upper end of the anticipated usage, thousands of families will be helped and will be protected from harm, so my answer is that this is a good use of Parliament’s time and resources.
Depending on the approach that Police Scotland takes, these orders and notices might be used far more frequently than in 1 to 5 per cent of incidents, in which case we would be talking about tens of thousands of people. They are designed to be used in exceptional circumstances. I hope that that answers the question.
If it is your view that the new powers are exceptional tools for exceptional circumstances, and if that is also Police Scotland’s view and mine—which it is—should the bill not be amended to reflect that and to say so? Should the bill not say that those powers are intended to be exceptional, rather than routine?
How would you define “exceptional” in the law? We could debate what “exceptional” means, but that would affect operational matters. If we put something directly into the wording of the bill, we would limit Police Scotland’s operational flexibility because we would have to define what “exceptional” means and might have to produce an exhaustive list of exceptional circumstances. That might leave gaps.
Police officers have had training that relates to the new act. We must trust them to use their judgment. It might be that, because of the efficacy of protection notices in providing immediate breathing space even for a couple of days, the protection notices and orders are used a lot more frequently than we think they will be. If it is the judgment of police officers that an order is necessary for the protection of potential victims, we have to allow the police to apply that judgment.10:15
Police Scotland told us that the bill should also be clear about the interaction of part 1 with pre-existing requirements in the criminal justice system such as home detention curfew and electronic monitoring. Several witnesses, including the witness from Police Scotland, said that the bill needs to be clear on how the new measures in part 1 will interact with other requirements in criminal law for a person to remain a minimum distance from their home, including where there is electronic tagging, for example. What is your view on that? Is that a legitimate concern? If so, does the fix need to be in the bill?
It is a legitimate question, and I certainly would not close my mind to having that in the bill. I will consider that. I read the evidence from Police Scotland about its concerns on the issue. However, I do not think that the challenge is particularly unique. At the moment, we could well envisage a situation in which somebody is issued with an exclusion order and has a child contact order. Ultimately, there has to be a balance between how those matters interact with each other.
I will set out how I envisage the process working. If somebody who is on home detention curfew with electronic tagging, as you mentioned, is issued with a DAPN—and, after that, potentially a DAPO—it will be for Police Scotland to communicate that to the Scottish Prison Service and, ultimately, it will be up to the SPS to make a judgment call.
The SPS would have to take two things into consideration. First, if the person who is subject to the DAPN and who is under HDC has to move to another address, the SPS will have to consider whether, operationally, the HDC can continue. Can we fit the radio frequency box at a different address, and how quickly can we do that? Will it be suitable for the person to remain on HDC from a logistical perspective? Secondly, and probably more importantly, the SPS will have to ask itself whether a person who is subject to a DAPN and who is therefore suspected of engaging in abusive behaviour towards person B is in effect in breach of their conditions. Are they a suitable candidate to stay in the community or should they be recalled to custody?
Where HDC is involved, those conversations will have to happen between Police Scotland and the SPS. With release on licence, there will have to be conversations with the local authority. It is pretty routine for Police Scotland to have such conversations with the SPS on potential breaches of HDC. However, if it is Police Scotland’s view that there needs to be a specific provision in the bill, I am happy to consider that.
You make it sound so easy. You just used the word “routine”. Police Scotland told us:
“We are asking police officers to respond to emergency situations, to risk assess and make judgment calls on matters that might counter court-imposed orders. It needs to be really clear what takes primacy there, and that is not for us to decide; it needs to be explicit in the legislation.”—[Official Report, Justice Committee, 22 December 2020; c 26.]
If it is as easy, straightforward and routine as you have implied, why did we hear that from Police Scotland? Why is Police Scotland so anxious about the matter?
You are asking me a different question. The quote that you reference mentions a court order. HDC is obviously not a court order. In your previous question, you referenced electronic tagging, which is very much a decision for the SPS to take. That was why I answered the question in that way.
In relation to court orders, I assume that you are talking about child contact orders or other orders relating to children. My opinion and the Government’s opinion is that a DAPN would supersede any other court order. A breach of a DAPN and, in time, a DAPO would be a criminal offence. It would not be legitimate for a person to express a view of wanting to contact their children because of a previous court order and then breach a DAPN or a DAPO. It would be pretty unusual if clarity was needed that a sheriff, for example, could impose a DAPO regardless of what other court orders might be in place, but we could consider providing that clarity if that would give all those involved some reassurance. A court order is very different from HDC or being released on licence.
That is very helpful. Rhoda Grant wants to pick up that line of questioning.
Rhoda Grant (Highlands and Islands) (Lab)
The confusion relates partly to the fact that notices will be imposed by the police; it appears that there will be something of a pecking order, if a notice will supersede what has been imposed by the court. I think that the bill will need to include reference to the fact that that will happen, otherwise the whole justice system will be put in a difficult place. If it is the case that somebody who has access to children through the courts could be issued, by the police, with a notice preventing them from getting that access, that needs to be clear in the bill. Will the cabinet secretary consider stage 2 amendments that would make that clear?
I am always open minded about stage 2 amendments that the committee might suggest or that committee members might lodge. Rhoda Grant has described what is probably an unlikely scenario, in the sense that we are dealing with situations in which a potential perpetrator and victim live together. If they have children together, they will probably be in that house. One would think that it would be less likely that there would be a child contact order in such a case, because they are all living and, therefore, interacting together. However, I appreciate that we could envisage other situations in which a DAPN or, in time, a DAPO might, as you say, interact with a child contact order.
My clear opinion is, given that a breach of a DAPN or a DAPO will be a criminal offence, that there would be no legitimacy in a person simply expressing that their having a civil order allows them to see their children and that that takes primacy; that would not be the case. I am certainly happy to consider whether we could clarify that in the bill. Equally, if members were to lodge stage 2 amendments, we would certainly give them consideration.
You said that a notice or order would be put in place only when people were living together. Is not it the case that one could be put in place if people had recently parted after a relationship? One imagines that, if there was clear evidence of domestic abuse taking place, the person would not be issued with a notice but would be arrested, taken into custody and charged with that offence. I am talking about the gap that exists when there is, perhaps, not evidence to charge someone with an offence, but there is a strong indication that abuse is taking place.
You are absolutely right that notices and orders could also apply to ex-partners. I am certainly not saying that that would never be the case; I am saying that I do not envisage that there would be that interaction. You are right that there will almost certainly be cases in which a DAPN or a DAPO will interact with a child contact order or another order relating to children, so we have to discuss that matter.
My argument is that it is pretty clear that a DAPN—or, in time, a DAPO—would supersede any civil order. Bear in mind, also, that the sheriff must take into account representations made by the person to whom a DAPO applies, as they must equally take into account any that are made by the individual to whom a DAPN applies. We would expect that individual to say, “By the way, I have a court order to see my children”; that would have to be taken into account. A more general question is whether we can do anything to give greater clarity on that in the bill, which I will consider.
Annabelle Ewing (Cowdenbeath) (SNP)
Good morning. Section 4 deals specifically with DAPNs. The cabinet secretary will be aware from having noted the evidence that has been taken thus far that some concerns have been raised about the scope and clarity of that provision, which raises issues about proportionality. Specifically, the concerns include concerns about the evidential threshold, which is “reasonable grounds for believing”, but there is no further fleshing out of the scope, or reference to risk.
Police Scotland, I think, said in its evidence that its initial understanding was that the provision would apply to cohabiting couples, but that it seems to have been extended to include, for example, couples in an intimate relationship who are not cohabiting. Their concern is that there might be a lack of clarity that will impact on the police on an operational front and will, therefore, potentially raise issues about proportionality in terms of the European convention on human rights. What is your response to those concerns?
Again, those are legitimate questions to ask. Proportionality is an important element to consider in the bill. We are talking about restricting somebody’s liberty in some way—quite severely, actually—without a criminal offence having been committed. Therefore, proportionality and necessity are absolutely imperative.
ECHR compliance has been a key consideration. Obviously, I cannot delve into legal advice, but I am not giving away any state secrets in suggesting that we are, as for any bill that we bring forward, assured that it complies with ECHR and human rights obligations.
We might discuss this later, but that is why it is our view that a DAPN can last only for the 48 hours that we have recommended in the bill. I noticed in evidence—from Scottish Women’s Aid or Police Scotland; I cannot remember—the suggestion to increase the time for a DAPN to four days, five days or even a week. For me, that would have serious ECHR implications. We want to make sure that there is appropriate judicial and court oversight of the action that has been taken, as soon as is practically possible. The person has not technically committed a criminal offence.
The first part of Annabelle Ewing’s question was about making domestic abuse protection notices. Without going into too much detail, I contend that section 4 is pretty clear about when a notice should be applied and what the tests are for that. If there are concerns about areas that we could make clearer or strengthen, I will, of course, take those concerns away and look at them.
Thank you. A colleague will look at the duration of notices in more detail. I welcome the cabinet secretary’s undertaking to look again at section 4.10:30
Police Scotland gave strong evidence at our meeting on 22 December; it is, of course, the police who will have to carry out the actions that the bill proposes. The police want to be assured, to the extent that that is possible on a matter of law, that what they will be asked to do is clear and will brook no real argument, or will result in as little argument as possible. It is therefore incumbent on us all to work together to see what can be done in that regard.
Police Scotland’s understanding has been that domestic abuse is about a course of conduct, but the bill’s focus is on a single act. Police Scotland is keen that we reflect on such matters in order to get the bill as right as we can, which we have an obligation to do. I very much welcome the cabinet secretary’s undertaking today to look again at the evidential threshold. We look forward to the outcome of those further deliberations.
I invite John Finnie to pick up the questioning from here. Liam Kerr will follow him.
John Finnie (Highlands and Islands) (Green)
Good morning, cabinet secretary and officials. I advise that I am a member of the cross-party group in the Scottish Parliament on men’s violence against women and children. That is pertinent, given the issues that I will raise with the cabinet secretary regarding Police Scotland’s response to the bill, and which my colleagues Rhoda Grant and Annabelle Ewing have already touched on.
A suite of measures is available to Police Scotland at the moment to deal with the scourge of domestic violence. Can the cabinet secretary explain what would be different, were the bill to pass unamended, from what happens at the moment in the response of police officers who go to a scene? We know, for example, that a DAPN would have to be authorised by someone of the rank of inspector or above, who would likely not be at the locus.
I suppose that there would not, in the initial phases, be much difference. Again, we can look at how similar orders unfold in other legal jurisdictions and different policing landscapes, such as in England and Wales, where, we know, the majority of similar protective notices are issued when an individual is in police custody or detention.
I envisage a similar situation in Scotland, whereby police officers will attend an incident and determine whether there are reasonable grounds to take somebody into police custody because they suspect that a crime has been committed. The police will charge that individual if, on further investigation, they believe that they have enough evidence that the person has committed a crime. However, if the police believe that there is not enough evidence but that the individual meets the test in section 4—which we just discussed through the previous question—they can make that case to an inspector and then apply a domestic abuse protection notice, which will eventually result in an application to a court for a protective order.
I do not know whether that helps Mr Finnie; I believe that that is how things will work in the majority of, but not all, cases.
Thank you. When there is insufficient evidence to charge the individual, where would the suspect be when deliberations take place between the police officers who attended the locus and the inspector?
In the majority of cases for similar orders in England, the person is in police detention. As we have discussed, the police can hold a person in custody—of course, I have no need to tell John Finnie this, given his experience—when there are reasonable grounds to suspect that a crime has been committed. The police might decide, on further investigation of the facts, that there is not enough evidence to determine whether the person has committed a crime and must be released. However, if the test in section 4 is met, the police will go to someone with the rank of inspector or above to apply for a DAPN.
The other scenario would be that officers attend a locus to which they have been called for a suspected domestic abuse incident, but do not arrest the individual or take them into police custody. On return to the police station, the officers might determine that the threshold that is set out in section 4 has been met, so they will speak to an inspector or to somebody whose rank is above that, a DAPN will be issued and the officers then return to the locus. The perpetrator might no longer be there, in which case the immediate harm to person B no longer exists. It is not unusual for Police Scotland to want to speak to a person who is not in the locus where the police expect them to be. The police would then use their normal procedures to track down the person and issue them with a DAPN.
As the convener said at the outset, the process has been presented as being straightforward. I get that, and I most certainly want the option to be available. However, I see in it some frailties that are, perhaps, about the relationship between the status of the individual to whom the notice is to be issued—including their location and whether they are a witness, suspect or accused at the time—and their level of compliance with the police.
The cabinet secretary will know that Police Scotland believes that it is necessary to have further discussion on the circumstances that might amount to a breach of a DAPN, and it gave some examples in its written submission. It said:
“Where an officer wants to issue a DAPN”
but an arrest has not been made,
“the officer has no powers to require the perpetrator to remain with them while the process is completed.”
Police Scotland continued that it is unclear whether,
“If the perpetrator refuses to remain with the officer”,
the perpetrator could be “arrested for a breach”, which I imagine would be challenging if a DAPN had not been issued.
As a headline, we all want the best protections and good law, but we also want practical law; we do not want to make things more difficult. We have already heard from Police Scotland that there would be challenges. What do you think would happen in those circumstances?
I agree with what John Finnie said about all the stakeholders who have presented evidence having an overarching desire to ensure that we do everything that we can do to protect victims of domestic abuse. There is no doubt that Police Scotland and the other stakeholders that are probing and scrutinising, as the committee is doing, have every right to do so.
As John Finnie was talking, I was looking over some material that I have in front of me. The test for making a DAPN would be that there were “reasonable grounds for believing” that the person had been abusive to the person at risk. That is very similar to the test that the police must apply when they arrest somebody—they must have reasonable grounds to suspect that the person has been involved in commission of a crime.
I think that, in most instances, as has been the case in England and Wales, an arrest would be made and the attending constables would make a determination as to whether there was further evidence of commission of a crime. If not, they might go to an officer of the rank of inspector or above to issue a DAPN.
In cases where the police do not have that power, or in which they think that it is inappropriate to make an arrest, there could be no breach of a DAPN until a DAPN was imposed. If an individual who had not been issued with a DAPN stayed in the family home, they would not be in breach of a DAPN. There is no dubiety about that. However, if that needs to be looked at and strengthened, I am, of course, happy to do that.
Is there any possibility of the notice being seen as an alternative in situations where there is an insufficiency of evidence to confirm that domestic violence has taken place? It could be described as a poor second, if you like.
I would not characterise it as a poor second—if anything, it is a good substitute. I suspect that, as MSPs, we have all dealt with a case involving an individual who is a victim of domestic abuse but where the police are unable to act. I can think of one such case in my constituency. A constituent came to see me about their daughter—the police had said to her, “We genuinely believe that you are a victim of domestic abuse but, having gone through the facts of the case, we cannot back it up with corroborative evidence.”
I would not describe the notice as a poor second. It provides a safety net—as Rona Mackay described it—for victims of domestic abuse where there may not be sufficient evidence to bring a case. Instead of allowing the abuse to be perpetuated and the situation to become worse for the person who has to live with the abuser, a notice—and, eventually, an order—can be put in place to protect them.
Before I bring in Liam Kerr, I have a follow-up question on the current line of questioning. Cabinet secretary, I completely share the view that you and John Finnie have expressed that we all—not just the stakeholders who have given evidence, but every member of the committee—want to have in place effective rules and procedures to tackle domestic abuse. There is no doubt about that in my mind. However, I am very disturbed by the evidence that we have had from Police Scotland on the detail of the bill.
In light of what you said to John Finnie, I will quote a bit more evidence. Police Scotland said in its written evidence that not just “further guidance” but further “consultation” is “required” on how DAPOs, and DAPNs in particular, will relate not only to how the courts impose orders, but to other aspects of ordinary family law, including rights of contact and custody. In oral evidence to the committee on 22 December 2020, Police Scotland said:
“We have engaged frequently with the drafters”
of the bill
“and have tried to emphasise our concerns. We need clarity about where the”
“will sit in relation to court-imposed orders”
as well as ordinary family law rights. It went on to say:
“We are not clear, and we need that clarity on how the orders”—
“are going to work together.”—[Official Report, Justice Committee, 22 December 2020; c 36.]
The committee has also heard evidence on those matters from the Faculty of Advocates, the Sheriffs Association, the Summary Sheriffs Association, Social Work Scotland and the Scottish Women’s Rights Centre.
You know all that, cabinet secretary. You know what evidence is on record and what the committee has heard. In the three weeks that have elapsed since the committee heard evidence from Police Scotland, what conversations have you had with Police Scotland in order to ensure that you and your officials fully understand its concerns? What have you said to Police Scotland to try to alleviate those concerns?
Nobody should be under any illusion about how seriously the committee takes the evidence that we have heard from Police Scotland on the practical operability of the bill. Nobody doubts the good intentions that underlie the bill, but we are talking about its practical operability, and the concerns that we have heard from those on the front line are really quite worrying.
Again, I hope that I have not given the impression during this evidence session that I am dismissive of those concerns, as I certainly am not. On the question of how DAPNs, and potentially DAPOs, interact with current orders, I have said on a number of occasions that I am more than happy to look at how we can make that more clear in the text of the bill. In addition, if members lodge amendments at stage 2, we will give those serious consideration.
My officials have been speaking to Police Scotland; most recently, I raised the matter directly with the chief constable in conversation, and we agreed to continue the discussion at official level. I also told him that he is more than welcome to continue to discuss the issue with me directly.
You are right to say that there are operational concerns from Police Scotland; it would be silly for me to deny that, having seen the evidence that is on record. Nonetheless, I give the committee an absolute assurance that we are more than happy to look at what we can do to provide further clarity in the text of the bill. I hope that, in this session, I am able to give you the Government’s view on where we think that clarity exists in relation to the primacy of a DAPN and a DAPO, in particular because a breach of either is a criminal offence.10:45
Liam Kerr (North East Scotland) (Con)
Good morning, cabinet secretary. I wish to pick up on the lines of questioning from both John Finnie and the convener, sticking with the practicalities and the interrelationships between the DAPN and the DAPO.
In its submission, Police Scotland raised a point about what would happen if a perpetrator refused to provide an address so that they could receive notice of the DAPO hearing, and specifically whether that would constitute a breach of the DAPN, even though the requirement to provide an address is not a condition in the notice. Can you advise us on that point, so that Police Scotland can have some clarity on it? Picking up on the convener’s question, where will that clarity be set out, so that there is no ambiguity?
I am looking at the bill now. Under section 6(4), the police
“must ask ... for an address”
so that the notice of the hearing can be provided. You would think that it would be in the interests of the person on whom a DAPN has been served to provide an address. If they refuse an address, that means that they would not receive any notice of a DAPO hearing.
The member is of course correct in his articulation that, technically, there is no legal requirement for the person to provide such an address, so I can see some merit in our considering additions to the list of requirements and prohibitions contained in notices under section 5—in particular, the question whether to include the provision of an address. That is a good point; I would welcome the committee’s further view on it, but I will take it away. The member is right: the police must ask for an address, but what if an address is not provided? Technically, what people must provide is not set out in the bill. That is a good point, and I will examine it in further detail. Perhaps we can clarify the matter.
Forgive me: what was the second question? [Interruption.] I thought that there was a follow-up question.
I am not quite sure what happened there, but it looks like we are done with Liam Kerr’s questions. Rhoda Grant is next, followed by Shona Robison.
The obligations under the domestic abuse protection notice relate to the person at risk and to any children, but there is no opportunity for it to relate to anybody else, such as family members or close friends, who can often become a target. If somebody cannot get at the person they were abusing, they often turn to loved ones or other people who are close to that person, continuing their abuse against them, almost in substitution for the abused person. Does that create a situation where abuse can continue, with family members lacking protection? Will you examine that as something on which there could be a stage 2 amendment, in order to assist people who will be at risk when someone is being put out of a house, which is a difficult time?
I have been looking through the bill again in relation to the point that Rhoda Grant makes. Although I sympathise with the point, the challenge lies in the question of proportionality, which Annabelle Ewing discussed. It is important for us to consider that, particularly in relation to the DAPN, which does not have judicial oversight. The balance must be between empowering the police to protect the person at risk from domestic abuse and any children who might be involved, and respecting the rights of a person against whom a DAPN has been issued but who has not committed a criminal offence.
It is a delicate and challenging balance to get right but, in relation to Ms Grant’s question, we must ask ourselves whether it is right to give the police a power to prevent a person from seeking to communicate or communicating with their partner’s colleagues or mutual friends without any judicial oversight.
The answer to that question might be yes, for the protection of the individual or other people. However, I would have to take legal advice on the matter in relation to the ECHR implications, because it would be quite challenging to impose that level of restriction without any judicial oversight.
Indeed, how wide would that circle of people with whom the individual would be prevented from communicating be? What is the definition of other family members—an uncle or auntie—friends and colleagues? In light of the evidence, I would of course consider the committee’s views on the question, but proportionality would be my key concern.
I understand that. I am thinking of where a victim would go for support. Anyone who knows anything about domestic abuse knows that support structures are often the first to disappear before abuse takes place, because the abuser tries to alienate family members. A victim might turn to one or two people as a bolthole or somewhere to go. Those people are at huge danger at a time in the relationship when the abuser is forced out of their home. If the number of those people was limited, could the bill consider their protection, not only for themselves but for the victim, who might go to them?
[Interruption.] I am not sure whether we have lost the cabinet secretary.
We might have lost him. I hope that we can get him back, because we cannot really take evidence from the cabinet secretary without the cabinet secretary.10:51 Meeting suspended.
10:57 On resuming—
Welcome back, everyone. I am sorry about that. I think that we have the cabinet secretary back with us. I cannot see anything on my screen at the moment, but I hope that I can be heard. Rhoda Grant was questioning the cabinet secretary when we lost the connection. I ask her to start her question again and we will pick up from there.
I was asking about close family and friends. Where there is domestic abuse, friends and family tend to be the first who are pushed away. Someone who is suffering from abuse tends to have very few contacts who provide a place of safety or bolthole for them, and their abuser will be very aware of who they are. In those circumstances, can steps be taken to protect those people in order to allow the victim of abuse to access that support? It would not apply to everywhere that the victim was likely to be, but the victim would be clear about who was in danger at that critical point.
I hope that you can now see and hear me. I apologise to the committee for the connection problem. I think that my Government officials have also dropped off, so I suspect that it is probably a problem with the Scottish Government network. I am now joining you via a different network.
You are absolutely right, of course, Ms Grant. We know well that, in many instances, a perpetrator of domestic abuse will try to alienate the victim’s family and friends from them. That point is indisputable and you articulate it well. I absolutely guarantee that I will give consideration to what you have said in advance of stage 2. My primary consideration in that regard will of course be the protection of the victim, but the secondary consideration—actually, I think that it will be of equal importance—will be whether we have the balance right between proportionality and protection in terms of the ECHR, particularly for a DAPN, for which there will not be any judicial oversight.
I take the points that Ms Grant makes; she makes them well and clearly from an informed perspective, so I will take those away and consider them in advance of stage 2.11:00
These notices and orders are with regard to the victim, but in other countries children can access such notices and orders in their own right, with an advocate working on their behalf under child protection. Have you given any thought to allowing these orders and notices to be issued on behalf of a child, with the correct support in place?
As you know, the police issue a DAPN and then apply to a court for a DAPO, but they would take into consideration the children who are present in any family circumstance. The DAPN can be applied to protect somebody who is 16 if they are the victim, but you make a good point; in a family circumstance, excluding the perpetrator from the home will then protect any children who are there. If there are other protective orders in other countries and jurisdictions that would give further protection for children, I would be open to looking at those. We all know that—this was part of the debate on the recent Domestic Abuse (Scotland) Act 2018—the impacts of domestic abuse on children are fundamental and can affect them very much, not only in the present but in later life. I am happy to take that point away and consider whether there are any gaps in that part of the bill.
Cabinet secretary, it looks as if a number of your officials are back with us now so, as before, if you want to bring them in, please feel free to do so.
Shona Robison (Dundee City East) (SNP)
I will pick up on an area that we touched on earlier, particularly in the questioning by Annabelle Ewing: the duration of a DAPN which, as you know, can be as little as two days, depending on where the weekend falls. I am sure that you will be aware of the evidence from Police Scotland and Professor Burton, who say that that is not long enough and that it could create significant practical problems in relation to the police’s ability to apply for a DAPO. Professor Burton goes on to say, with reference to what happened in England and Wales, that there is a risk that the new powers will be significantly underused in practice because of that. I hear what you have said so far on the ECHR implications and the need for judicial oversight, but are you willing to revisit the proposed duration of a DAPN on the basis of those criticisms? Is there a way of balancing the need to apply the ECHR and judicial oversight with having some flexibility around the 48 hours?
I have seen and heard a fair bit of the evidence on the question of whether 48 hours is long enough; it depends on where the weekend falls, but the question in general is whether 48 hours is long enough for a DAPN. I refer back to my previous answer; what we are talking about is pretty serious: legislating to severely restrict somebody’s liberty in a way that excludes them from their family home and possibly takes them away from their children without them having been charged for a criminal offence. They have not, by the state’s recognition, committed an offence. It is important for us, as a state, to have judicial oversight of that restriction of liberty and of the interference in their privacy and their right to a family life as soon as is practically possible. Any extension of that causes me concern. That is not to say that I would not revisit it, based on the evidence that I have heard. We have been discussing whether we have the right balance here.
Professor Burton’s evaluation of domestic violence protection notices in England and Wales suggested that the 48-hour timespan was a barrier to police using those powers. The United Kingdom Government stuck to the 48 hours, despite that evaluation evidence. I do not know definitively, but I suspect that that was because there were similar ECHR concerns to those that we have.
I take the point that having only 48 hours available can create a significant barrier. We should remember that the courts can grant interim domestic abuse protection orders. That three-week period can give more time for the police to speak to other agencies, for discussions between agencies, for reports to be provided to the court and for there to be assessment of any other current civil orders. A full DAPO can be applied after that.
That is helpful. I welcome the fact that you are looking at that again. I note that the same issues have arisen in England and Wales with regard to the two-day restriction and concerns about the ECHR. The committee will have to look further at the idea of an interim DAPO.
You will have seen that the weight of opinion from those who gave evidence was that the proposed maximum duration of three months for a DAPO was likely to be too short. A number of organisations pointed to court proceedings relating to longer-term safety that would not be concluded in that timeframe. For example, any eviction proceedings by social landlords would not be concluded within that timeframe. In the light of what the committee has heard, is that something that you would reconsider as the bill progresses?
In short, yes; I found that evidence persuasive. There are still ECHR considerations. Judicial oversight is important, but we must also consider whether any extension of the order would interfere with a person’s right to a family life. Notwithstanding that, the arguments that I have heard about eviction and transfer of tenancy have reminded me that those processes can take longer than three months. The individual could apply for an exclusion order or an interim interdict, but the onus to do that would be on them. Therefore, there is a persuasive argument for us to revisit whether DAPOs could be extended in specific circumstances.
I do not have a definitive answer on whether we will do that. I will have to discuss the proportionality of that proposal, and its ECHR implications, with the law officers. However, I found the evidence compelling and I will look, in advance of stage 2, at whether it might be possible to extend a DAPO beyond three months in certain circumstances.
Rona Mackay wanted to ask questions in the same area. I do not know whether she has anything to add or whether her questions have been covered.
I have a brief question, convener.
The bill team confirmed in our first evidence session that a DAPO could be breached by stalking, which, obviously, could carry on for some time. Does that add weight to your decision to reconsider the issue of extension of orders? Might sheriffs want to extend an order in cases in which there is stalking?
Potentially. Forgive me, but I will have to look again at how the issue interacts with stalking, although the point is well made. For me, the extension of a DAPO would probably be aligned to whether other court proceedings were taking place and whether there were criminal proceedings. If the individual involved was under criminal investigation for stalking, for example, we might wish to consider that.
I am talking somewhat off the top of my head. We would need to think about how we would legislate for an exception—it would have to be an exception—to enable a DAPO to be extended beyond three months. However, the points that Rona Mackay makes are well made. I know that she has an interest in the issue of stalking and has raised it over the years. We will certainly consider that as part of considering extension of DAPOs.
I am conscious of time, so I shall put one quick question to the cabinet secretary, on multi-agency working. Police Scotland told the committee that it would value multi-agency input to the processes, particularly when it is preparing to apply for a DAPO. However, as you know, the bill does not expressly provide for that and—according to Police Scotland, anyway—nor does it include timescales that would support multi-agency working in practice. How do you respond to that? Are Police Scotland’s concerns valid and, if so, how will you address them?
Again, I certainly do not dismiss the questions that Police Scotland has raised and the concerns that it has articulated. It is important for not just the committee but the Government to understand, probe and listen to those points.
I would have concerns if we were to mandate operational practice in the bill. I am not saying that the member is suggesting that we should do that, but mandating interagency working and the timeframe for it to happen would be of concern to me, and I would not want to do it. There is a two-day window for the DAPN, which could make multi-agency working difficult, because 48 hours can be challenging. However, the court will be able to provide an interim order for a three-week period, which could assist with multi-agency working and give Police Scotland more time to pick up the phone to local authorities, social landlords and so on. I hope that the three-week period is an adequate timeframe.
I think that, as MSPs, we can all agree that it is not unusual for Police Scotland to take a multi-agency approach locally. In fact, in the majority of cases that the police deal with that involve domestic incidents, there is multi-agency working with the local authority social work department and potentially the school when children are involved. It is not an unusual operational practice. However, if the member is suggesting that we should have something on that in the bill, I would need to give that serious consideration, because I am not sure how that would look.
I suppose that the short answer to the question is that we will of course listen to the concerns that Police Scotland has and will try to work through them as we approach stage 2.
Fulton MacGregor (Coatbridge and Chryston) (SNP)
I have a brief question on training. The financial memorandum suggests that police training on the bill might be delivered through a two-hour course making use of an e-learning package. Will that be enough to ensure that front-line officers have a good awareness of the new powers, or will the training be implemented through existing training channels as well?11:15
I am just getting the financial memorandum up on my screen.
It is worth stating that, in recent years, Police Scotland has had extensive training on domestic abuse, in relation to the Domestic Abuse (Scotland) Act 2018 in particular. You will remember that there was a delay—well, it was not so much a delay, but there was a period of one year between the passing of the bill and the commencement of the act. The purpose of that was to allow training on coercive control and so on to be completed. It would be fair to say that police officers have had a fair degree of very recent training on domestic abuse.
On the point about training through e-learning, I stress again that that is a matter for Police Scotland, which will determine whether an e-course or in-person training is more suitable. We are happy to work with Police Scotland in that regard, but it should be said that the information in the financial memorandum is very much based on the information that Police Scotland provided as it pertained to the organisation.
I have a quick follow-up question. If, as the bill makes its way through Parliament, further concerns are raised about how police officers might be trained in relation to the new orders, will the Government be open to discussions with the police with regard to what is currently in the financial memorandum?
Yes—again, it is not unusual for there to be amendments at stage 2, or even at stage 3, that may give a different shape or feel to a bill, or in this case add an additional pressure on Police Scotland, so we continue to discuss such matters with Police Scotland as the bill progresses through the parliamentary process.
I turn to the issue of the victim’s consent. As things stand, that is not a requirement in the bill with regard to either the DAPN or the DAPO. It seems, from the evidence that we received, that there is a strong feeling that, in respect of the DAPO, there should be a requirement to obtain the victim’s consent. Some felt that that should be the case for the DAPN as well. What is your view on that evidence?
I listened to and read the evidence to the committee with great interest. Again, I emphasise that I am not dismissive of the concerns that have been raised. I am probably less minded to consider such a requirement for a DAPN. The DAPN comes, in effect, in the heat of an incident, in particular where coercive control is involved. If consent was required, one could imagine—knowing about domestic abuse, as we all do—that that could be manipulated by a perpetrator. For the DAPN, therefore, I am not minded to revisit the issue of consent—although if the committee has a strong view on that, I would reconsider.
With the DAPO, the issue is more finely balanced and more challenging, but I would still have the same overriding concern. From everything that we know about coercive control in particular, a perpetrator could continue to perpetrate their abuse by manipulating the victim to ensure that she—it would often be “she”; it is in 80 per cent of cases—does not give her consent.
The evidence from Scottish Women’s Aid in that regard was particularly interesting. It said that, when it comes to a DAPO, there should be a requirement for consent, but the court should have the flexibility to override that where it believes that coercive control is at play. Having considered that matter over the past few weeks, I find it quite difficult to understand how we could legislate for that. Flexibility would have to be given to courts and the judiciary through guidance or perhaps through court rules—I am not sure.
I will certainly consider the issue of consent in relation to a DAPO, but I have an overarching concern and an overriding worry about how an individual might be manipulated into not giving their consent.
In relation to the operability of a DAPN, it is a fair point to make that the need for prior consent could, I imagine, present sometimes insurmountable difficulties and would place yet another burden on Police Scotland. However, there is a case for requiring consent for a DAPO, not least because the order could last three months. It is difficult to see how it would all pan out in practice if the DAPO was not issued in accordance with the wishes of the victim. As the cabinet secretary said, I imagine that there are ways of recognising the importance of that issue from a practical perspective while perhaps allowing the courts some discretion in the matter. I look forward to, potentially, having sight of a stage 2 amendment in that regard.
My questions follow on from Annabelle Ewing’s line of questioning. Over the years, the committee has heard quite a lot of evidence on the importance of having child-friendly ways of taking children’s views. I know that the cabinet secretary has committed to that, as have all committee members, through the barnahus work that is taking place and the recent Children (Scotland) Act 2020. In the context of this bill, how will we ensure that the courts take children’s views in a child-friendly way and that children feel supported in the process?
You are right that there has been a lot of progress on the matter over the years. Again, I reference the evidence suite in Glasgow city centre, which committee members might have visited. It is a very child-friendly space, which includes a sensory room and appropriate facilities that are built around taking evidence from a child. That is one example of how things have moved on from previous years.
In relation to a DAPO or, indeed, an interim DAPO, it would be for the independent judiciary and, ultimately, the Lord President to decide how children’s views are taken in a child-friendly manner. I note that, as part of their work, judges get training on how to handle such matters. They also have what they call their equal treatment bench book, which includes extensive guidance on how to treat children in a court setting.
I am happy to consider the matter. Fulton MacGregor will be aware of the work that we are doing through incorporation of the United Nations Convention on the Rights of the Child. Such issues are at the forefront of our mind, but we have to accept that, quite rightly, how a number of those matters are dealt with in court is for the judiciary to determine, rather than for us to mandate in law.
The bill will make Police Scotland the sole body that can apply for a DAPO. During our evidence sessions, we have heard some concerns about that—specifically, whether that risks cutting off options for affected individuals. I am interested in the cabinet secretary’s thoughts. Does the fact that Police Scotland will be the sole body that can apply for a DAPO risk cutting off options for affected individuals who might be reticent about going to the police? Could that put undue pressure on police resources?
On the second point, we have the financial memorandum. If, for example, as the convener asked about in his opening question, there is much greater usage of DAPNs and many more applications for DAPOs than we have estimated, that will be part of future budgetary discussions with Police Scotland.
The wider question whether we should enable other bodies to apply for a DAPO is an interesting one. There would be some potential unintended consequences, which we have to be really alive and alert to. Scottish Women’s Aid, for example, articulated some of those concerns. This is not to diminish the work of social landlords or social housing providers at all, but I ask whether they have the same knowledge and training as Police Scotland around domestic abuse.
I have just talked about how Police Scotland officers attend 60,000 domestic abuse incidents a year and will have had the extensive training that I spoke about in relation to the Domestic Abuse (Scotland) Act 2018. It is unlikely that a social landlord or social housing provider would have the same extent of training or knowledge of domestic abuse incidents that Police Scotland has. Therefore, there could be some unintended consequences.
In considering the matter, I read the evidence with great interest and noted that there is an order-making power in the UK bill to allow other bodies to be added at a future date, after consultation and discussion. We may want to consider at stage 2 whether to add a similar order-making power to the bill that would allow other bodies to be added, so that they could apply for DAPOs at a future stage. I am probably more attracted to that course of action, as opposed to adding specific bodies to the bill at this stage.
I am grateful for that answer. I will move on.
Throughout this session, we have talked a lot about the financial memorandum and the costs that will be associated with the bill. As well as the one-off training costs that we have heard about, I think—off the top of my head—that the financial memorandum estimates that there will be recurring annual costs to Police Scotland of between £700,000 and nearly £4 million, depending on how often officers use the powers in practice. The obvious question is whether the Scottish Government will give Police Scotland any extra funding to support its role in relation to the bill.
Discussions would, of course, take place between Police Scotland and the Scottish Government. If Police Scotland said to the Scottish Government that there is far greater usage of the notices and far more applications for the orders than was estimated in the original financial memorandum, the Government would have to take that into account in future budgetary discussions and ensure that Police Scotland was awarded the appropriate resource to do its duties. In essence, therefore, the answer would be yes. We would ensure that Police Scotland was funded appropriately to take forward all its duties, including in this area. However, that will clearly depend on what Police Scotland’s operational practice is and whether it goes above and beyond what is in the financial memorandum.
Can I press you on that, cabinet secretary, so that I am absolutely clear on what you have just said? I think that you said that if the use is greater than what is covered in the financial memorandum, there is the potential for Police Scotland to get more money. If the bill is brought in in its current form, you say that it will incur one-off training costs and annual costs of £700,000 to £4 million for Police Scotland. Do I take it that, if that is what it costs, Police Scotland will be given no more funding to implement the bill? Is that correct?
No, that is not the case. Again, you are delving into the territory of spending reviews. If issuing of DAPNs and applying for DAPOs were within the range in the financial memorandum—the £0.7 million to £4 million that you quoted—that would, of course, have to be part of considerations during a budgetary discussion in a budgetary process. That would absolutely be part of that conversation and consideration. However, you are asking me whether I can nail down exactly what the Police Scotland budget will be come 2022-23 or any other future year. Based on the financial memorandum, we would, of course, have to discuss that at the appropriate time.
The short answer to your question is yes, we would ensure that Police Scotland is appropriately resourced to carry out its duties.11:30
So new money will be given to Police Scotland for the implementation of the bill, and it is not expected to find that money out of its existing budget.
No. On financial memorandums, if there is a recurring cost, it is helpful for us to understand how much we would need to ensure is available for funding Police Scotland in future years. However, we cannot, of course, take just one element of Police Scotland’s budget and say that X amount needs to be given because a cost is being incurred in light of this particular issue. There might be savings in other areas, and additional income that Police Scotland gets in any given year—because of events that take place, for example. The budget would have to be balanced appropriately. However, that element of the budget would, of course, be part of any discussion about future policing resources.
I want to talk about DAPOs and where they sit in the range of available options. DAPOs are relatively short-term orders, and it is clear that the existing system remains very important. The existing system is also, of course, very complex, and take-up of some orders is very low. I am interested in what impact assessment of DAPOs you will do. We are at the stage in the parliamentary cycle at which forward planning might be a bit challenging, but if your Government were to be returned, would the existing system of civil orders be the subject of a review? I see merit in that. If so, what would be the likely timeframe?
I am not considering a wholesale review of civil orders, and I would be careful not to pre-empt any manifesto commitment or to presume that we will be returned to government.
However, there have been consultations on civil orders in recent years. I am sure that committee members will be aware that, for example, the Government consulted in 2018 on changes to improve the effectiveness of exclusion orders. The matter has been considered. The Scottish Law Commission is working on a project on cohabitants’ rights, which will no doubt touch on some civil remedies and civil orders.
Some of the work has, therefore, already been done, and I am not convinced that there is a need for a wholesale review of civil orders if the bill is passed. Forgive me, but I do not have a definitive answer at this stage on whether we would do such a review in future years. I would not rule it out, but I would have to be convinced of its merit and that it would be the best use of the Government’s time and resource.
Do you acknowledge that introducing something else into the mix has the potential to overlap—I think that that word was used earlier—and therefore has wider implications?
Yes—I accept that that is the case. If the bill is passed, there will be consistent and constant monitoring and evaluation of how DAPNs and DAPOs interact with current civil orders. We would do that with the provisions of any bill that is passed. I would not rule out a wider review if that is merited, but at this stage I need to be convinced that it would be the best use of our Government resource and time.
Okay. Many thanks.
The cabinet secretary referred a moment ago to exclusion orders—in what some might view as a somewhat cluttered landscape—which I believe were introduced by the Matrimonial Homes (Family Protection) (Scotland) Act 1981. For a number of reasons, uptake has not set the heather on fire. Are exclusion orders being used more since the 2018 review took place? The issue of overlap is important; if exclusion orders are not the way forward, perhaps some elements of that approach that are still relevant should be carried forward into the bill. The two issues are interlinked.
Forgive me—I would have to look at the detail. I do not have the information in front of me, so I will write to the committee on how often exclusion orders are used. Annabelle Ewing is absolutely right, though; I bow to her superior knowledge of the introduction of exclusion orders.
One issue that came out clearly in the consultation in 2018 was that there was not great awareness that exclusion orders exist and are a remedy that people can seek. We have been working on raising awareness of exclusion orders and must do more on that.
I suppose that the big difference between an exclusion order and a domestic abuse protection order is that with a DAPO the onus is not on the victim of domestic abuse. Again, we can perfectly well envisage how difficult applying for an exclusion order might be for a victim of domestic abuse—especially if they are in a toxic and controlling relationship in which their every movement is under scrutiny by the perpetrator, as is often the case in domestic abuse relationships. We hope that it will make a big difference that the DAPO will be applied for by Police Scotland.
Ms Ewing is absolutely right that there are common issues between exclusion orders and DAPOs. We have to be alive and alert to those, but the big difference will be that the onus is not on the victim, but on Police Scotland, to apply for a DAPO.
We move to part 2 of the bill, on social landlords. John Finnie has questions.
I have just one question. As you know, committees always enjoy getting competing evidence on an issue. We have that in respect of the ground that can be used under section 18. We heard from Homeless Action Scotland that there needs to have been a criminal conviction or at least a police investigation. The Chartered Institute of Housing Scotland, however, thinks that that is too high an evidential threshold and puts greater emphasis on the judgment of housing professionals and the person at risk.
I noted your comment that housing professionals have some knowledge. What evidence will be required before a social landlord can use the new ground? How will the Scottish Government ensure that social landlords know what is expected of them in that regard?
I read the evidence with great interest; you are right to suggest that it is somewhat conflicting. My overriding concern is that requiring a criminal conviction—which some have suggested we should, as the committee heard in evidence—would severely limit the usefulness of the provisions. We are trying to address a gap in the law that often, unfortunately, affects domestic abuse cases in which there might be insufficient evidence, but in which there is a strong suspicion that domestic abuse is taking place and reasonable grounds to believe that there is abusive behaviour. I am not in favour of moving to that threshold.
As members of the Scottish Parliament, we probably all have often experienced social housing landlords collecting evidence to support criminal or civil court actions. It is not unusual for social housing landlords to be part of evidence gathering—in particular, when it comes to children and domestic abuse cases.
I take the point; if Parliament passes the bill, we will have to work closely with social landlords and other key stakeholders to develop guidance on the provisions. That work will have to cover the type of evidence that will be required when social landlords look to raise proceedings to end or transfer tenancies. We have to make that clear. We will work with the appropriate social landlords to do that, and we will provide the necessary guidance to assist with it.
That is very reassuring. I am finished. Thank you, convener.
Thank you, John.
I do not think that there are any further questions from members of the committee about the bill, so I thank the cabinet secretary for his evidence this morning. I am sorry that we had one or two technical glitches along the way, but I think that we got there in the end.
12 January 2021
15 December 2020
22 December 2020
12 January 2021
What is secondary legislation?
Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:
- bring a section or sections of a law that’s already been passed, into force
- give details of how a law will be applied
- make changes to the law without a new Act having to be passed
An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).
Debate on the Bill
A debate for MSPs to discuss what the Bill aims to do and how it'll do it.
Stage 1 debate on the Bill transcript
The Deputy Presiding Officer (Linda Fabiani)
We shall now carry on with that very important business, which is a debate on motion S5M-23983, in the name of Humza Yousaf, on the Domestic Abuse (Protection) (Scotland) Bill at stage 1.15:30
The Cabinet Secretary for Justice (Humza Yousaf)
I begin by apologising to you, Presiding Officer, and to the entire chamber. I was getting ready to log on before the end of Ms Forbes’s statement, and I can only cite a technical malfunction. I had been on the phone to our information technology team earlier in the day to resolve the issue, and I thought that it had been resolved, but clearly it had not, so forgive me. I apologise to you, Presiding Officer, and to all members who are in the chamber or present remotely.
I am pleased to open the stage 1 debate on the Domestic Abuse (Protection) (Scotland) Bill. The bill is an important additional piece of the Scottish Government’s overall approach to improving the way in which Scotland deals with the scourge of domestic abuse. Much progress has been made in recent years through, for example, the new offence of domestic abuse and increased support for those who experience domestic abuse, all delivered through the prism of the equally safe strategy. However, there is always more to do, and the bill is part of those necessary further steps.
I intend to respond to a number of issues that were raised during the scrutiny process. First, I thank members of the Justice Committee, the clerking team and all those who gave evidence on the bill. That evidence helped to shape the comprehensive and helpful stage 1 report that was produced swiftly following completion of the oral evidence sessions.
Before I address the specific points that were raised in the report, it is important that I set out briefly what the bill actually does. Part 1 of the bill creates a new scheme of domestic abuse protection notices and domestic abuse protection orders. The notices and orders will be used to protect people who are at risk from abusive behaviour by a partner or an ex-partner where there is an immediate risk of abuse.
The bill empowers senior police officers to be able to make a very short-term domestic abuse protection notice, which can remove a suspected perpetrator of domestic abuse from the home of the person who is at risk. It can also prohibit the suspected perpetrator from approaching or contacting the person at risk, and it can apply a limited number of other very specific conditions. The notices can be made prior to consideration by a court, and they are intended to allow for protection to be put in place immediately, where police consider that necessary.
The bill also contains the power for a court to make a domestic abuse protection order, which can have effect for up to two months initially and is capable of being extended for up to three months in total. The system of orders is designed to allow for judicial oversight very quickly following the imposition of a domestic abuse protection notice. The police are required to apply to the court for an order within one court day of making a notice, and the court is required to hold a hearing in relation to the application by the following court day. That is an important procedural safeguard to protect the rights of any person who is subject to a police notice. The police can also apply for an order without first making a notice in a case in which they consider that an order is required to protect a person who is at risk of harm but the level of urgency is not such that a notice requires to be made.
The measures are intended to complement existing criminal and civil processes by providing a new means of protecting a person who is at immediate risk without requiring action on the part of the person at risk. Crucially, the measures are independent of any criminal investigation, as there may not be sufficient evidence to proceed with a criminal prosecution and unlock existing criminal court powers to impose special conditions of bail or remand, for example.
Part 2 of the bill makes provision to enable social landlords to transfer a tenancy to a victim of domestic abuse. It does so by creating a new ground on which a social landlord can apply for a court order to end a perpetrator’s tenancy with a view to transferring that tenancy to the domestic abuse victim, or, where the perpetrator and victim are joint tenants, ending the perpetrator’s interest in the tenancy and allowing the victim to remain in the family home as a sole tenant.
Having the legal ability to end the perpetrator’s tenancy in domestic abuse cases will allow social landlords to take a more proactive role in supporting and protecting victims of domestic abuse and in enabling victims to remain permanently in the family home without requiring the victim to commence the process themselves.
I suspect that I am not the only member to have seen a number of cases, unfortunately, in which a victim of domestic abuse felt that their only option was to flee the family home and become homeless. That cannot be right, and the bill seeks to redress that problem.
It is important to reflect on the core issues that the measures in the bill seek to address. At the moment, a person wishing to obtain protection from domestic abuse, particularly in relation to keeping a perpetrator away from the home, can do so only if the perpetrator enters the criminal justice system or if they themselves take out a civil order against the perpetrator, in which case the onus is on the victim.
We know that it can be very difficult for a victim of domestic abuse who is living with a perpetrator to take steps to address their long-term safety, particularly if that involves taking action in the civil courts to remove the perpetrator from the home. Some who gave evidence to the committee noted that that can result in a victim of abuse having no alternative but to make themselves homeless to escape that abusive partner.
The new scheme of protection notices and orders is therefore intended to fill a gap, given that someone who is experiencing domestic abuse is more likely to lack the freedom of action to pursue a civil court process to remove a suspected perpetrator from a shared home. The measures will also provide a person who is at risk with short-term breathing space that will enable them to consider both what longer-term steps they may wish to take to address their safety and that of their family, and their future housing options. The longer-term steps will depend on a victim’s particular circumstances, but could include the pursuit of existing civil measures, such as an application to a civil court for an interdict or an exclusion order.
Enabling social landlords to end a perpetrator’s tenancy in domestic abuse cases also seeks to address the real issue of why the victim and their family should have to leave their home, belongings and community to seek safety and sanctuary while the perpetrator remains undisturbed in the family home.
I welcome the Justice Committee’s support for the general principles of the bill. However, I acknowledge that during the committee’s scrutiny a range of issues were raised that are important to the eventual successful implementation of the legislation. Every committee member, from across the parties, confirmed their support for greater protection for domestic abuse victims. However, there was concern about some of the operational impact of domestic abuse protection notices and orders and their interoperability with other civil remedies. I hope to be able address those key areas in the rest of my remarks.
There is a definite need for full and effective scrutiny of those operational matters. I have discussed the issues that the Justice Committee raised with me with the chief constable of Police Scotland. The committee has also heard direct feedback from Police Scotland about some of the implementation challenges.
I will instruct an implementation board, led by the Scottish Government, which will bring together all the key agencies affected by the new legislation, including Police Scotland. Although some of the operational issues raised during scrutiny will be for the implementation board to consider as guidance is prepared on the use of the legislation, some policy matters also need to be addressed.
The Justice Committee’s report discussed the threshold of the test before a notice or an order can be imposed. I am in discussions with Police Scotland and can advise that we are looking at whether the test of future harm that requires to be met before a notice can be imposed should be set at “significant” harm. We will keep Parliament updated as that discussion continues, but members will not be surprised to hear that Scottish Women’s Aid and other victim support organisations have real concerns about increasing the evidential threshold. I will continue those discussions with Police Scotland and victim support organisations. Given the seriousness of removing a perpetrator from their home, it may be appropriate to set the threshold at a higher level.
I am pleased that the committee supported the length of time for which notices and orders can run. There is a careful balancing act with such timescales—keeping them as short-term protections, while respecting the rights of the person who is subject to the notice or the order, bearing in mind that that person has not been convicted of a crime. I consider that the bill strikes the appropriate balance.
The committee report also discusses the way in which the views of children can help to shape decisions about whether notices or orders should be imposed. There is a considerable challenge in balancing the fundamental policy intention of the bill, which is to provide immediate protection for those at risk of domestic abuse, while ensuring that the views of affected children are taken into account. The bill provides that the welfare of children is a key factor for the court when deciding whether to impose an order, if those children would be affected by such an order. Where the court is considering imposing an order with provisions that would relate to directly to a child, the bill emphasises that any views of that child of which the sheriff is aware should be taken into account.
I can confirm that we will consider carefully whether further provision is needed to ensure that the overarching policy intention of immediate protection for those at risk of domestic abuse can be delivered.
I look forward to the debate. I commit to considering all suggestions for how best the bill can be improved and, importantly, how effective operationalisation of the new system of orders and notices can be delivered. If we can deliver on both those aims, we can ensure that there is new and improved protection available for those at risk of domestic abuse.
I commend the general principles of the bill to Parliament.
That the Parliament agrees to the general principles of the Domestic Abuse (Protection) (Scotland) Bill.
The Deputy Presiding Officer (Christine Grahame)
As most members taking part in the debate are doing so remotely, there is no opportunity for interventions. If members want slightly longer for their speech—a minute or more—they should feel free to take it, as we have time in hand.
I call Adam Tomkins, on behalf of the Justice Committee.15:43
Adam Tomkins (Glasgow) (Con)
This is a simple bill that raises quite complex problems—problems that the Justice Committee has not found easy. As we heard from the cabinet secretary, the bill does three things, each of which is designed to sharpen the effectiveness of the tools that we have to combat domestic abuse, and combat it we must. Every year, Police Scotland is called out to something in the region of 60,000 incidents of domestic abuse. That is 5,000 every month and nearly 1,200 every week. Each incident consumes, on average, nine hours of police time. The social costs are massive, to say nothing of the horrific impact on the victims of crime.
Let me say a word about the three new tools that the bill provides for, the first of which is the domestic abuse protection notice or DAPN. A DAPN enables the police to impose requirements on a person when the police have reasonable grounds to believe that the person is engaged in abusive behaviour. Such a notice is said to be an emergency measure. A breach of its conditions is a criminal offence, and its effects can be severe—forcing a person to leave their home and, if necessary, preventing them from approaching or contacting their family.
The second tool—the domestic abuse protection order or DAPO—is imposed not by the police but by a court of law. Wherever a DAPN is issued, the police must apply to the court for a domestic abuse protection order on the very first court day after the notice is issued. The hearing must be held and concluded in court on that day.
A DAPO may impose any condition on a person that may be imposed by a DAPN but, unlike the notice, the order may remain in force for up to two months, extendable to three months on a further application to the court. A breach of any condition that is imposed by a DAPO is a criminal offence. It needs to be understood that the effects of a DAPO on a person may be severe, excluding the person from their home and depriving them of contact with their family.
The third tool relates to housing. The bill gives social landlords a new power to evict a tenant where the tenant has engaged in abusive behaviour. That new power will sit alongside other powers that are already contained in Scots law, for example in the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and the Housing (Scotland) Act 2001.
The Justice Committee took evidence on the bill in December and this month. As well as hearing from the bill team and the cabinet secretary, we heard from stakeholders such as Scottish Women’s Aid and the Scottish Women’s Rights Centre, from the Law Society of Scotland and academics, from Police Scotland and from housing experts such as the Chartered Institute of Housing in Scotland and Homeless Action Scotland. I thank all the witnesses who helped the committee with our scrutiny. I again thank our tireless clerks and the Scottish Parliament information centre for all their work in supporting the committee through a fast-paced inquiry. I also thank the Government for its response to our stage 1 report, which was received earlier this week.
Our report focuses on two concerns, the first of which is whether the new powers that the bill contains are necessary and how they will fit alongside the plethora of other powers that the criminal justice system already has for dealing with family disputes and domestic abuse. The second concern is whether the new powers are compatible with Scotland’s human rights obligations.
The committee had no hesitation in supporting the policy intentions that underpin the bill. The committee supports the underlying policy intentions whole-heartedly and unanimously. However, good intentions, while they are a necessary ingredient of good law, do not of themselves guarantee that the law that we make is fit for purpose. The committee was anxious to ensure that the powers conferred by the bill are capable of being operated and implemented effectively.
The committee’s anxieties in that regard were amplified when we took evidence from Police Scotland. Detective Chief Superintendent Samantha McCluskey told us that she had a variety of doubts and puzzles about how the new powers contained in the bill, in particular the power to issue a domestic abuse protection notice, will work in practice. What is the evidential threshold that must be crossed before a notice is imposed? What should the police do in the event that there is not only an accusation of domestic abuse but a counter-accusation?
As Detective Chief Superintendent McCluskey said, that situation is
“very challenging for officers on the ground.”—[Official Report, Justice Committee, 22 December 2020; c 29.]
How should the conditions that are imposed under a DAPN sit in relation to other court-imposed orders or restrictions such as bail conditions? Could a failure to issue a DAPN open the police to potential liability in the event that subsequent abuse occurs? Whereas the police have become used to working in a multi-agency way, in partnership with others such as social workers, it is not obvious in cases of domestic abuse how issuing a DAPN on a person can be undertaken other than by the police alone. In all those operational respects, DCS McCluskey told us, clarity is needed. She said that it would be necessary to
“build a bit of confidence among police officers, who will be expected to make decisions and build the public’s confidence in our response”.—[Official Report, Justice Committee, 22 December 2020; c 31.]
The committee drew attention to those operational challenges in our conclusions and recommendations, and the cabinet secretary devoted several paragraphs of his response to our report, detailing how the Government, in consultation with Police Scotland, intends to ensure that those challenges are met and overcome. We have just heard from Mr Yousaf that the Government accepts that some of that work will be challenging in practice and will require careful implementation. I welcome both the tone and the content of what the cabinet secretary said on that point.
I will close by saying something about convention rights. It is clear that the powers to issue a DAPN and to make a DAPO interfere directly with human rights—most obviously, with the right to private and family life in article 8 of the European convention on human rights. Like most rights in the convention, that one is of course not absolute, but interferences with it need to meet two key tests: they must be necessary in the public interest and they must be proportionate.
I share the cabinet secretary’s view that, as drafted, the bill is likely to meet both those tests, but a key component of that judgment rests on the fact that both a DAPN and a DAPO are short-term measures. The longer that either is permitted to endure in any particular case, the greater the risk that a court will find a violation of convention rights.
Even this brief overview shows that there is a lot in the bill. Ideally, one would have wanted to be able to scrutinise it at a less frenetic pace, but we are where we are. Although the committee drew attention to the range of issues and concerns that I have outlined in my remarks, it is content to recommend—again, unanimously—that Parliament approve the general principles of the bill at decision time this evening.15:51
Liam Kerr (North East Scotland) (Con)
I confirm that the Scottish Conservatives will vote in favour of the principles of the Domestic Abuse Protection (Scotland) Bill at decision time tonight. We share the chamber’s condemnation of domestic abuse as a scourge on our society and welcome any attempt to address it and get justice for victims.
In his remarks, the cabinet secretary set out succinctly and well the rationale that underlies the bill. Consideration of the matter is particularly important at the moment, because we know from published data that domestic abuse has risen in Scotland over the past three years—the number of domestic abuse charges were at a four-year high in 2019-20.
At its core, the bill has three basic aims: first, to protect a person at risk of domestic abuse in the immediate term by the giving of a power to a senior police officer to issue a domestic abuse protection notice—DAPN—on a suspected perpetrator of abuse. Secondly, the bill sets out the further legal steps that might be taken to ensure the longer-term safety of a person at risk and specifically gives the civil courts the power, on application by the police, to grant a domestic abuse protection order—DAPO—for up to three months in relation to the perpetrator.
Finally, the bill provides protections around housing, which I am pleased to see. I recall that I proposed an amendment to the bill that became the Domestic Abuse (Scotland) Act 2018, which called for a review of measures that, among other things, would have excluded someone from a person’s house if they presented an immediate danger to the other person or a child.
As the convener has just made clear, the Justice Committee considered the bill on a tight timescale and I am grateful to the clerks, witnesses and to my colleagues for the way in which they approached the process. That shortened timeframe is important to keep in mind, because all members take the view that, although this is an important piece of legislation with excellent aims, it is far from a finished product with regard to precision in drafting and practicality.
The committee was unequivocal that serious practical concerns over the bill would need to be addressed prior to approval at stage 3. It took that position because both legal bodies and the police in particular had signalled outstanding issues with the bill’s drafting, which could mean that its powers—perhaps not regularly used—could prove to be difficult to use in practice.
Officers on the ground must be able to use the law with confidence. I have no doubt that colleagues will talk at length on the bill’s issues, but I will focus my remarks on some of the key concerns that were raised by the police. Police Scotland raised concerns about the unilateral decision making that the bill outlines, particularly in relation to DAPNs. Its submission stated that for the police to be able to issue DAPNs
“without any consultation is not in step with the established partnership approach currently taken across public protection to address risk.”
Police Scotland reminded the committee that, where emergency measures such as those that are outlined in the bill are taken, that is usually done with a
“core group of statutory partners”
“have a key role in decision making from the outset.”
Police Scotland proposes that the risk identified must be in line with sexual offence prevention orders, which are well defined. It considers that other statutory and third-party agencies should be able to apply for a DAPO.
On the provisions in section 8, in which only the police can make such an application for an order, Police Scotland noted that
“reliance on a single organisation, such as Police Scotland, to apply the legislation, not only creates a significant and potentially unmanageable demand on a single service, but is out of step with the established partnership approach in Scotland.”
I am grateful to Scottish Women’s Aid, whose helpful briefing today makes a useful suggestion in that regard.
Police Scotland also flagged that the timeframe for DAPNs creates substantial operational challenges. In its written submission, it flagged that the necessary information technology and information sharing, the additional demand on officers, who—I think that I heard the convener of the Justice Committee mention this—spend an average of nine hours dealing with each domestic incident that they attend, and the logistical implications of ensuring legal representations at hearings create
“substantial challenges for the police”
and require sign-off from a senior officer. The Justice Committee heard that senior officers are typically desk based and do not routinely attend at the scene, so how that works in practice is key.
Furthermore, as the committee recommended, it will be important at stage 2 to define what a “reasonable excuse” for breaking a DAPN or a DAPO might be, because there are no examples or definitions in the legislation.
In summary, the concerns include, but are not limited to, the threshold for evidential proof—an issue on which the cabinet secretary responded in his letter, and on which Scottish Women’s Aid has made interesting points; the challenges of risk assessing at the scene; whether there is conflict with the ECHR; how breaches will be dealt with and what constitutes a breach; any liability of Police Scotland on a failure to act; and where DAPNs sit with other court-imposed sanctions or orders relating to children.
Perhaps where all that gets us to is that we need reassurances from the Scottish Government that the police will be appropriately resourced to apply the new legislation. The police must be adequately resourced to respond appropriately when assessing and imposing DAPNs, or dealing with DAPOs, and on enforcement. That will need training, which requires money and time.
In his response to the committee’s report, the cabinet secretary said that he will create an implementation board, which will examine how to bring in the proposed new powers of the police and courts against suspected abuse. The board will involve key partners, including Police Scotland. He said that
“the Implementation Board will carefully consider what guidance and training is required for police officers and others”
“the operational processes required to enable an application for a DAPO to be prepared in line with the timescale set out in the Bill will be considered”.
That is good. However, leaving that aside, I do not see in that the cast-iron commitment to overall resourcing. It feels a bit like this is being back-loaded. Why would that not have been done in preparation for the bill? The cabinet secretary mentioned in his speech that he has spoken to the chief constable about those issues. Ought that not to have been done in advance?
In the same area, I note that the Law Society of Scotland—of which I remind members that I am a member—suggested that
“What would have helped is prior modelling to identify how and in what circumstances ... a DAPO will be used to provide effective short-term remedies.”
The Law Society also said that, although some of the matters that were raised in the Justice Committee’s report might be picked up by the implementation board,
“there needs to be some effective scrutiny, monitoring and evaluation provisions within the Bill including reporting to the Scottish Parliament.”
The Scottish Conservatives will support the bill, but the significant concerns about its operational and resourcing impacts must be addressed if it is to become law, otherwise it could be undermined from the start.
Every effort possible must be taken to prevent domestic abuse. The bill is another attempt to address this vile problem in society. As ever, we will work constructively with the Government to achieve that end.
The bill seeks to provide victims of domestic abuse with the protection that they need, and we are absolutely supportive of that principle. The Scottish Conservatives will always stand up for the victims of crime, and that is why we are very pleased to support the bill at decision time tonight.15:59
Rhoda Grant (Highlands and Islands) (Lab)
I, too, thank the clerks, SPICe researchers and witnesses who assisted the committee in arriving at its report on the Domestic Abuse (Protection) (Scotland) Bill at stage 1.
The Scottish Labour Party supports the general principles of the bill. Women and families who face domestic abuse need protection. Yet, too often, it is left to them to flee their homes and find their own protection through the courts, at their own cost, and often with very little knowledge of the justice system. They are often afraid to do so in case it triggers more violence. The point at which a relationship is over is often the most dangerous for victims of domestic abuse, and it is frequently the time at which such abuse can result in murder. It is wrong that victims of domestic abuse should have to organise their own protection. Our criminal justice system should be there to protect people, and that should mean everyone. It is a sad reflection on our society that that currently does not happen for victims of domestic abuse.
Proving such abuse is difficult, because it is hard to identify. By its very nature, it is an offence that is carried out in private, within the family home. It is seldom witnessed and can take many forms. Sadly, despite the work of the Parliament and subsequent Governments, we have still not seen an end to such abuse, and the bill provides the opportunity to put in place another form of protection. It is not a new concept; such orders are used the world over to provide additional protection. It is therefore disappointing that the bill is a bit of a dog’s dinner. It feels as though whoever designed it did not really understand the systems that exist or the very nature of domestic abuse. I sincerely hope that the Parliament will be able to make the bill workable as it makes its way through stages 2 and 3.
Domestic abuse has a detrimental effect on a child’s life: their resilience and self-esteem are damaged, as are their life chances. They do not even need to witness or experience it themselves—the tension and fear that surround them create fear and insecurity within them. Although children are offered protection under the bill, it is attached to their parent. I truly believe that children must have access to such protection in their own right. The NSPCC in Scotland has reported a 30 per cent increase since last April in referrals made to agencies regarding children in abusive households. That comes at a time when children are more isolated—they are trapped in abusive households, without the respite and support that going out to school brings.
The incidence of domestic abuse has increased, therefore its impact on children has increased. If children are contacting agencies for support when they witness such abuse at home, surely they themselves should be entitled to protection and to have the abusive parent removed, as happens in other countries such as Australia and New Zealand. Such a measure is not often used, but it can be another protection for children.
The nature of domestic abuse is such that the victim often covers up the crime, either because they fear retribution or because of their total lack of self-esteem, which has been systematically removed by their abuser. Therefore it is important that all victims have a right to such protection.
The issue of how domestic abuse protection notices interact with other measures, such as home detention orders or child custody orders, needs to be clarified in the bill. Such notices are an emergency intervention: they require no judicial oversight and can be put in place by senior police officers. The legislation therefore needs to be very clear about how and when notices will take precedence over other orders, especially those handed down by courts. It is right that notices have precedence in an emergency, but that needs to be made clear in the bill. If a domestic abuse protection order is subsequently sought, there will be oversight by a sheriff and during the court process steps can be taken to resolve any conflicts with other orders that might occur.
For instance, if the subject of a domestic abuse protection notice is also the subject of a home detention order, there will need to be a mechanism for their home base to be changed for the purposes of implementing that order. Some witnesses said that the imposition of a notice might indicate a breach of a home detention order, which might then necessitate the perpetrator’s return to prison. However, given that a notice is issued only where there is no proof of a crime to enable the subject of the notice to be arrested, charged and held in custody, I am unclear about how that could be considered a breach of a home detention order.
There are also child custody arrangements which may have been imposed through a court. We need to clarify how they interact with notices. We often hear of terrible cases where child custody and access rights are imposed by the court which leave the victims of domestic abuse in life-threatening situations.
Access arrangements are often used to continue the abuse and children are used as weapons, which damages not only the victim but the children. That is yet another reason for a child to have those protections in their own right.
That all needs to be very clear on the face of the bill. It needs to be clear that those notices and orders take precedence over any contact or custody rights of the person who is subject to them.
Notices and orders also bar someone from entering their own home. There is a reason for that. Too often, we see the victim of domestic abuse and their children having to flee their home and become homeless. The bill will help to ensure that they can remain in their own home. However, the bill is unclear on what steps will be taken to ensure that the subject of the notice has access to housing immediately if they have nowhere else to go. That is important, especially if they are subject to a home detention order that keeps them at that home; it is also important to avoid homelessness. It is also right that the abuser is forced to leave their home because that allows the person who is being abused to remain at home with their family.
The bill is necessary, but the framing has not been well thought out. I hope that the committee, working with the cabinet secretary, can put that right at stage 2 because, if it is in good order, the bill will provide a lifeline to victims of domestic abuse.
The Deputy Presiding Officer
Thank you, Ms Grant. Liam McArthur will open for the Liberal Democrats.16:06
Liam McArthur (Orkney Islands) (LD)
The Scottish Liberal Democrats strongly support any attempt to improve protection for those at risk of domestic abuse, particularly when they are living with the perpetrator of that abuse. In that context, we will be happy to support the principles of the bill at decision time, not least because they broadly reflect the policy adopted by the Scottish Liberal Democrats back in 2019.
That said, and as others have mentioned, it is clear that work is needed to address the practical concerns raised by various witnesses at stage 1, not least Police Scotland. However, I will start, as others have done, by thanking all those who have helped the committee to get to this point, notably the witnesses who gave both written and oral evidence, our clerks and SPICe. They and we have not been helped by the truncated timeframe for scrutiny, which the convener referred to. Given the nature and the complexity of the issues raised by the bill, that is far from ideal.
However, the principles of the bill are sound. They reflect those of the Istanbul convention, which is already in place in countries such as the Netherlands, Austria, Germany and Spain as well as in England and Wales, all of which have introduced short-term protective orders aimed at tackling domestic abuse.
In Scotland, as the cabinet secretary reminded us, current civil measures place the onus on the victim to apply for orders. Under the bill, the police would be able to impose a protection notice and thereafter apply to the court for a protection order, which could place requirements and prohibitions on a suspected perpetrator of domestic abuse. Those include removing a suspected perpetrator from a home shared with the person at risk of abuse and prohibiting them from contacting or otherwise abusing the person who is at risk while the order is in effect.
As well as protecting those at risk of domestic abuse, we need to improve outcomes for victims in relation to housing. Creating a new ground on which a social landlord can apply to the court to end the tenancy of a perpetrator of abusive behaviour, with a view to transferring the tenancy to the victim, is another welcome step. It matters—we know that over 60,000 domestic abuse instances were recorded by Police Scotland in 2018-19. At the same time, around 4,500 homelessness applications were made due to a
“violent or abusive dispute within a household”.
The vast majority of those applications were from women, half of whom had children. Domestic abuse is the single biggest reason for a homelessness application by women.
Those alarming numbers were on the increase before Covid, and nobody seriously expects that trend to have been reversed during the pandemic; indeed, the situation is quite the reverse, as the NSPCC reported earlier this month.
Therefore, the provisions of the bill are welcome and timely. Nevertheless, in a practical sense, as the committee heard repeatedly, the bill as drafted lacks clarity. The Law Society said that there is a risk of
“a proliferation of potentially overlapping measures”.
Indeed, the Government acknowledged the existing criminal and civil law provisions that could be used to remove a suspected perpetrator of abuse.
The thresholds for DAPNs also give rise to concerns for the Law Society, relating to the evidential basis that will be required for the police to take such a step. That needs to be proportionate if it is to be consistent with an individual’s ECHR rights. A DAPN can be imposed only by a senior police officer at the rank of inspector or above, but how would that work in practice?
There was also some disquiet about the threshold for taking action, as the phrase “reasonable grounds for believing” is at odds with the existing threshold, which opens up the potential for confusion. Although witnesses did not expect the power to be used extensively, greater clarity is essential.
The committee heard mixed views on the question of what the maximum duration of a DAPO should be. The Scottish Women’s Rights Centre and Scottish Women’s Aid argued that the proposed three-month period is too short, but concerns were also expressed about the ECHR implications of going beyond that, and my committee colleagues and I certainly understood and empathised with that.
Seeking the consent of those who are deemed at risk before implementing a DAPN or DAPO might be problematic, but the committee heard compelling evidence about the need to ensure that women’s voices are heard and reflected in the process, and the bill will need to find a way of achieving that. Although an automatic referral to support organisations might be a step too far, a presumption or even an opt-out provision as proposed by Scottish Women’s Aid does not seem unreasonable. Police Scotland assured the committee that such referrals routinely take place, but placing such a provision in the bill might offer further reassurance.
The point that the Shetland domestic abuse partnership made about the age threshold deserves further consideration. A perpetrator need not be 18 or over and can be as young as 16, so the bill needs to reflect that fact. That is also a reminder that, sadly, domestic abuse blights every community across Scotland. In my constituency, the campaign “Tak A Stand Orkney. It Does Happen Here” effectively says it all. I commend those behind the campaign for the work that they do in encouraging the reporting of abuse.
The bill is important; it can deliver real improvements for those who are affected by domestic abuse. However, changes are needed at stage 2 to give it the clarity, certainty and scope that it requires to be effective. I look forward to working with committee colleagues to achieve that goal. In the meantime, the Scottish Liberal Democrats will of course support the bill at decision time.16:12
John Finnie (Highlands and Islands) (Green)
As my colleagues have done, I give the usual thanks to everyone who has brought us to this point.
I say at the outset that my legitimate criticism of the bill is not at odds with my unequivocal support for addressing the scourge of domestic abuse. Like other members of the Justice Committee, I have been active in the field, and I declare an interest as a member of the cross-party group on men’s violence against women and children. However, we do not make laws for the sake of it. We want to make good and effective law, and law that is evidenced as being needed. We want law that will make a positive difference.
The Domestic Abuse (Scotland) Act 2018, which was considered by the Justice Committee, overhauled the criminal justice approach. It identified a gap, which related to
“keeping a perpetrator away from their home”.
That equated to a need for a law.
That of course stems from the Istanbul convention, to which the Scottish Government expressed a commitment in “Equally Safe: Scotland’s strategy for preventing and eradicating violence against women and girls”. The convention states that legislative measures should be taken to ensure that
“in situations of immediate danger, a perpetrator of domestic violence”
“to vacate the residence of the victim or person at risk”,
and that there should be measures
“to prohibit the perpetrator from entering the residence of or contacting the victim or person at risk.”
That approach is necessary and seems straightforward but, unfortunately, the proposed legislation, or at least its application, is not. Police Scotland seems uncertain about how it might use the power and talks about “exceptional circumstances”. Members of Parliament, in scrutinising legislation, need to understand how it will work. The policy aim is clear and is to protect people who are at immediate risk. That is good, and the bill could do that, but what if the alleged perpetrator has left the scene? What role does the bill have in that situation? Will police have the power to detain someone pending the granting of a DAPN? Is such a power in the bill or elsewhere?
Another policy aim is to create time for further legal steps, but the timeframes are tight—an application must be made to the court on the next court day. What if, following the granting of a notice, the court decides not to grant an order?
Other members have alluded to the fact that the Law Society of Scotland mentioned the risk of
“a proliferation of ... overlapping measures”,
but it is fair to say that Scottish Women’s Aid does not see it like that. It believes that the measures in the bill are not intended to replace existing criminal measures, and that the routine criminal justice response should always be the first consideration. It thinks that the bill addresses a very specific situation in which it is not possible to use criminal justice measures. If that is the case, one might reasonably ask what happens at the moment in the circumstances in which the bill is intended to work—nothing? One would hope not. If there is a gap—I think that we accept that there is—does the bill fill it?
The policy memorandum states:
“There are a number of existing criminal and civil law provisions currently in effect which can be used to remove a suspected perpetrator of abuse from a home they share with a person at risk or otherwise prevent them from contacting the person at risk.”
My wish, and that of the Justice Committee, is to understand where the proposals in the bill fit with the existing arrangements.
Another policy aim of the bill is to reduce the chance that the person at risk becomes homeless or feels that he or she, rather than the suspected perpetrator, must find somewhere new to live. What of the suspected perpetrator? There might be insufficient evidence to arrest that person; they might not be subject to investigative liberation; and there might be insufficient evidence to take them to court. Is a police officer to deny that individual access to their residence?
In the Scottish Government’s response to the committee’s stage 1 report, the cabinet secretary said:
“I would like to take this opportunity to clarify that a senior constable, in making a DAPN, will not be acting as a court of law”.
Is that really the case? It seems to me that that is not a particularly helpful response. I would argue that
“acting as a court of law”
is exactly what the bill asks officers to do. That is precisely why there must be no dubiety about what is expected of them, or about what proof or evidence is needed.
I say again that it is a big step to sanction the police to advise an uncharged, unconvicted person who may be subject to no other civil or criminal restraints on where they can go, who they can engage with or where they can stay. Every police officer has to justify their decision making and explain their rationale, particularly when they place restrictions on a citizen. An officer will ask themselves, “What are my powers? In what circumstances can I exercise them? What is the right of redress for the individual?”
The policy memorandum mentions the fact that DAPNs and DAPOs are likely to interfere with people’s rights, but as that has been touched on by other members, I simply acknowledge that the matter has been covered.
The Justice Committee had significant concerns about the practicalities of the ability of Police Scotland to use the powers in question in the way that is intended. The cabinet secretary has told us that there will be further consultation with Police Scotland about how the powers can be used, but the Scottish Government should be well down the road from there. There was compelling evidence from Police Scotland, the Law Society and others that further consultation and clarity were required on how DAPNs are expected to work in practice. That is quite a serious criticism, given the stage in the legislative process that we are at.
In relation to breaches of DAPNs, the cabinet secretary said in the Scottish Government’s response:
“I consider that the Bill is clear”.
If the bill is clear, can the cabinet secretary outline what legal power there would be to detain someone who was not under arrest, pending the issuing of a DAPN?
I like flow charts—that is how my mind works. I would like to know what the options are, and for them to be laid out in that way. The Law Society put it more correctly when it said that prior modelling to identify how and in what circumstances such measures will be used would have been helpful.
I am conscious of time, so I simply say that it is reasonable to expect greater clarity on what are exceptional powers, which we are told will be used only in exceptional circumstances. It may be that I am very slow on the uptake. A sample scenario would be of great help.
Of course, the reality for victims is very bleak. The bill can play a part in resolving that, but only if we resolve all the issues that I have mentioned. I will leave it there.
The Green Party will support the bill at decision time.
The Deputy Presiding Officer
I remind members that there is a little time in hand for them to run over their time.16:19
Rona Mackay (Strathkelvin and Bearsden) (SNP)
The importance of the bill that we are debating to the victims of domestic abuse cannot be overstated, and I am more than happy to agree to its general principles at stage 1 today. I thank the bill team and the clerks for their exceptional work to prepare the stage 1 report within an extremely tight timeframe. There is much ground to cover on the detail of the bill, but I know that colleagues will pick up on the areas that I will be unable to cover. Indeed, many have already done so.
The Domestic Abuse (Protection) (Scotland) Bill is indeed a milestone. The orders that will be issued will provide emergency safety measures to victims, 80 per cent of whom are women and children, by removing the alleged perpetrator from the home and barring contact with the person at risk. That will be a safety net for people who desperately need it. The bill will also improve outcomes for victims by giving social landlords the power to end the tenancy of a perpetrator. Domestic abuse is the main cause of women’s homelessness in Scotland.
Crucially, the bill will give the police the power to issue a domestic abuse protection notice before applying to the civil court for a domestic abuse protection order. The significance of that is huge. It means that the victim, when she is at her most vulnerable, will not have to go through the court process herself and will not incur legal costs. The orders are not intended to replace existing criminal measures, but they will protect victims in cases where it is not possible to apply those measures but there is an imminent risk to safety.
Evidence that the committee received questioned whether there is a legislative gap to fill, given that we have non-harassment orders, civil protection orders and emergency barring orders. My view is that there is most definitely a gap and that the orders will fill it, providing immediate safety to victims by removing the perpetrator and barring further contact.
Traditionally, until now, it has been women and children who are forced to leave the family home in cases of domestic abuse. That is unfair and inhumane for both the victim and the children, who may be uprooted from their home, school and familiar surroundings through no fault of their own. They are guilty of nothing, yet they pay the price. That is why the orders are so important and necessary, particularly now, with levels of domestic abuse soaring during the pandemic. Dr Marsha Scott, chief executive of Scottish Women’s Aid, said:
“The publication of this Bill is a milestone moment for women, children and young people experiencing domestic abuse who for years have asked us why it should be them, rather than their abusers, who have to leave their homes, pets and belongings to seek safety.”
In its stage 1 report, the committee spoke of operational concerns in respect of Police Scotland. The convener and others articulated many of those well, so I will not repeat them. However, I am extremely pleased that the cabinet secretary has said that he will continue to engage with Police Scotland and key stakeholders to discuss their concerns. For legislation to be good, it must be workable. To that end, the cabinet secretary has confirmed that, if the bill is passed, he will set up an implementation board that is chaired by the Scottish Government to examine operational matters.
The timing and length of DAPNs and DAPOs featured heavily in our evidence taking. In order to be ECHR compliant, there is a short timescale for the senior constable who proposes the DAPN to apply for a court order, and the committee accepts that. The maximum duration of a DAPO will be three months, with some flexibility for extension in certain circumstances. Again, we believe that that is reasonable given that it is an emergency order, although there may be issues to do with eviction and rehousing. Those could be addressed at stage 2.
I am passionate about the bill and I am particularly delighted that the breach of an order will be a criminal offence. An example of a breach would be stalking by a partner or ex-partner where an order has been issued. More than half of stalking offences are committed by an ex-partner.
In 2019, I proposed a member’s bill to introduce stalking protection orders, which the police could apply for on behalf of the victim. The proposal was paused in order to evaluate the effects of the newly introduced Domestic Abuse (Scotland) Act 2018. If the bill that we are debating today is passed, another legislative gap will be filled, and I could not be happier about that. However, we know that stalking usually takes place over a period of time and it may last longer than three months if no arrest has been made. I will therefore consider lodging an amendment at stage 2 to propose that the order be eligible for extension in cases of stalking breaches.
Section 4 relates to the police paying attention to the victim only when they are aware of the woman’s views. I believe that the views of women and children should be actively sought, as should the woman’s consent to an order. To issue an order without consent would be to further disempower the victim. Where coercion is suspected, which is often the case, an interim order could be issued without consent in order to allow time for further investigation with a view to criminal action.
In relation to the evidential threshold for issuing orders, as the cabinet secretary has outlined, women’s organisations have expressed concern over the wording of “significant harm” in the Government’s response to the committee. I am sure that that is something else that can be addressed at stage 2.
There is so much to welcome in the bill. At last, abused women and children will have emergency protection that has so far been lacking—a safety net for them and any children involved. There are issues to be resolved, as we have heard, but I know that the Government will work with stakeholders to make this vital piece of legislation work for everyone. We owe it to so many silent victims who are living in fear. The legislation is the beginning of the end for perpetrators of abuse, and I urge members to vote to agree to the general principles of the bill at decision time.16:25
Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)
I welcome the Domestic Abuse (Protection) (Scotland) Bill at stage 1. Scottish Conservatives will always stand up for victims of abuse and we will support the general principles of the bill.
Scottish Women’s Aid and the Law Society of Scotland, to name two organisations, have welcomed the bill’s proposed powers, which are intended to fill a gap in legislation, or, as my colleague Adam Tomkins said,
“sharpen the effectiveness of the tools that we have”
to help those who may be experiencing domestic abuse. The powers aim to reduce the risk that a person has to make themselves homeless in order to provide a safe pathway to other forms of safety.
Sadly, we know that domestic abuse is on the rise in Scotland. The number of domestic abuse incidents recorded by Police Scotland has risen in the past three years, from 58,108 in 2015-16 to 60,642 in 2018-19. It is concerning to see the number of incidents rising, but, as I have previously said in the chamber, that must be seen through the prism that perhaps more victims feel confident and empowered to come forward.
I thank my local women’s refuge, Border Women’s Aid in Hawick, for its important work. It has worked tirelessly to help women gain freedom from abusive relationships. It provides safe accommodation and specialist support for up to a year for women and their children who have left abusive homes. Through its excellent outreach service, it supports many women in the community who currently live with abuse while they plan for a life beyond it.
We have come a long way in supporting victims, but there is still a lot more work to be done. I believe that legislation must go further in tackling the domestic abuse issues that occur post separation, which I will touch on later in my speech.
I want to make two main points regarding how we can strengthen the bill to help the system to empower victims. Many members have discussed both these issues in the debate.
First, we welcome the two new powers: the power for courts to make the domestic abuse protection orders and the power for the police to make domestic abuse protection notices. However, we have concerns about their implementation. I thank my colleague Liam Kerr for raising points during the passage of the Domestic Abuse (Scotland) Bill in 2018. He proposed an amendment to the bill that would have called for a review of measures that would have, among other things, excluded someone from a person’s house if they presented an immediate danger to that person or their child.
The Justice Committee, the Law Society of Scotland and Police Scotland have noticed issues with the current drafting of the powers. On section 4, the Law Society has questioned whether a DAPN is a proportionate measure in the context of the relevant rights under the European convention on human rights. It remains uncertain how a DAPN will be issued in practice, and the bill does not appear to make a specific power available to the police to remove a suspected perpetrator to the police station in relation to a DAPN.
The committee has noted those concerns and they will be dealt with at stage 2, following proper consultation with Police Scotland, to ensure that the new powers are fit for purpose and effective.
Secondly, I want to touch on the important issue of financial abuse, especially post separation. We know that when a victim leaves a perpetrator, there can still be ties that unfortunately link them to that person. Lack of money and financial resources is the main reason why women return to abusive partners post separation, and economic barriers and a lack of financial independence are the main factors in why women stay in abusive relationships.
According to the Co-operative Bank and Refuge, one in five women and one in seven men in the UK have experienced domestic abuse from a current or former partner and one third of victims did not tell anyone at the time that they were being abused.
We know that the UK Government has provided £22 million to support tackling domestic abuse and sexual violence in the community access support services and £10 million to domestic abuse safe accommodation charities. That has helped many people in difficult situations.
Just this week in the House of Lords, Baroness Lister has been instrumental in bringing amendments to the committee stage of the UK Domestic Abuse Bill. Her amendments seek to ensure that those who were previously personally connected are protected from any coercive and controlling behaviour, including economic abuse that occurs post-separation.
Post-separation coercive and controlling financial abuse is widely recognised. I am glad that banks such as the Bank of Scotland and the Royal Bank of Scotland have been supportive of victims and have set out guidance and best practice for employees on how to treat sensitive situations, such as victims accessing bank accounts or closing accounts that they have with abusive partners.
There are provisions in the Domestic Abuse (Scotland) Act 2018 to cover coercive behaviour, even if the people are ex-partners. Section 3(3)(c) of the Domestic Abuse (Protection) (Scotland) Bill refers to
“controlling, regulating or monitoring person B’s day-to-day activities”.
I am not a member of the Justice Committee, but will the cabinet secretary clarify in his closing remarks whether financial abuse post separation is covered in the bill and whether the new notices and orders are able to deal with coercive financial abuse post separation?
In conclusion, the Conservatives support the general principles of the bill, but there are issues that require to be addressed. As my colleague Liam Kerr said, many stakeholders, such as Police Scotland, have significant concerns about the operational and resource impacts of the bill. Those concerns must be addressed if the bill is to become law; otherwise, it could undermine any convictions that take place under it. The proper financing and resourcing of our police force to ensure that it can continue its good work is crucial to the bill’s efficacy and the tackling of domestic abuse. I urge the Scottish National Party Government to ensure that our police officers are fully equipped to root out an evil that continues to be a scourge on our society. The support groups, charities and victims of domestic abuse need to be listened to so that the Scottish Government can get it right.16:32
Fulton MacGregor (Coatbridge and Chryston) (SNP)
As a member of the Justice Committee, it gives me great pleasure to speak about the bill. As we have heard, the bill builds on the important legislation that came into force last year, which gives the police and prosecutors the powers to ensure that those who participate in coercive or controlling behaviour are held accountable for their actions. Make no mistake: such behaviour is domestic abuse, and it is now treated as such.
Case numbers are going up, but that should not be surprising. That may not necessarily represent higher prevalence; rather, people may feel more able to report such behaviour, and there is a clear message from the Government and society that it will not be tolerated. We should welcome that.
The bill will offer additional protection to those who are at risk of domestic abuse, especially in cases in which the person is living with the abuser. A person should feel safe in their own home. During these times of lockdown, when we cannot leave our homes, the bill could not be more timely. More money and restriction exemptions have been put in place to support those who are suffering, but the reality still remains that lockdown negatively impacts victims of domestic abuse. Options to move in with other family or friends may not be as readily available as they usually would be because of concerns about household mixing and virus transmission. People may be unclear about whether they can leave a situation, or they may even be told by an abuser that they cannot do so. Kids are not in school—we have already heard about that from Rona Mackay—and, of course, there is massive strain on our emergency services. All of that means that many victims are, even more than is usually the case, suffering in silence.
The bill will apply to all those who are at risk of domestic abuse. However, we know that women are disproportionately affected: they represent around 80 per cent of victims.
The Scottish Government is determined to protect everyone from domestic abuse and, at the same time, it will continue to implement the equally safe strategy, with a focus on supporting women and children who are at risk of abuse. With the bill, the police and the courts will gain powers to remove suspected abusers from victims’ homes and ban them from re-entering them.
If the bill passes, it will bring into force a domestic abuse protection order that allows courts to impose requirements on suspected perpetrators. It will allow for the removal of a suspected perpetrator where they share a home with someone at risk, and contact will no longer be allowed.
The bill also provides a power for the police to, where necessary, impose a very short-term domestic abuse protection notice ahead of applying to the court for a DAPO. The DAPN is intended to be very short term in its effect, lasting until the court reaches a decision about whether to impose a DAPO or an interim DAPO. The bill proposes that a DAPO could last for up to three months in total. In committee, we heard from witnesses who supported that, including Scottish Women’s Aid, the Scottish Women’s Rights Centre and Professor Mandy Burton of the University of Leicester, who all believe that there is a need for new powers, as, in their view, a gap exists in the protection afforded to women under existing powers.
Another groundbreaking aspect of the bill is that it will give social landlords the power to end or transfer the tenancy of a perpetrator of domestic abuse to prevent a victim from becoming homeless and enable victims to remain in the family home. Tenants who are affected by domestic abuse should not have to leave their family home—we all agree on that. However, it is often the case that children are also shared in such a situation, which makes it harder for someone to find suitable accommodation, and the upheaval can be deeply traumatic on top of what has already taken place. It is recognised that, by allowing for a transfer of tenancy, victims and their families will be able to stay in their home without having to seek temporary accommodation or declare themselves homeless. Many victims stay in a relationship with their abuser because they have nowhere to go and cannot fathom the ordeal of leaving their home and finding suitable accommodation. That part of the bill will help put a stop to that situation and help redress an imbalance that has been around for some time.
As we have already heard, however, there are issues to be discussed further at committee. It is fair to say that the bill as it stands is not the finished article; every speaker, including the cabinet secretary, has reflected on that today.
Concerns have been raised about the suggested evidential threshold that would enable a domestic abuse protection order or a domestic abuse protection notice to be made. As we heard, the justice secretary has confirmed that a Scottish Government-led board will be established to ensure the effective implementation of proposed new measures to protect victims of domestic abuse.
We have also heard concerns from several speakers about significant operational and resourcing challenges for Police Scotland. I am delighted that the cabinet secretary has indicated that there will be on-going engagement with Police Scotland on those issues, because, from the evidence that we heard—[Inaudible.]—would be required.
Shared Parenting Scotland, as well as the convener and others, have raised concerns about the bill’s compatibility with human rights, including the concern that an alleged perpetrator who is subjected to a DAPN or DAPO may not have actually committed an offence. Those who have those concerns can be reassured that they have been heard and considered by the committee, but they should also understand that we need to balance those concerns against the possibility of not doing more to protect victims and the devastating consequences that can occur when we do not act decisively. Much as with the previous domestic abuse legislation that the Justice Committee considered, it is important for people to know that the committee takes into account all those issues, but we have to have—[Inaudible.]—when doing that.
Scottish Women’s Aid has played an instrumental role in the development of the bill and has made recommendations to members to improve it further. Those include strengthening the definition in section 1 on the application of DAPNs and including in section 4 a more robust duty to actively seek the views of women and, where practicable, children, as well as adding appropriate wording around the test and the thresholds on imminent risk. In section 8, it recommends adding a more robust duty to actively seek the views of children and including the need for consent of women, and an amendment to the categories of applicant for a DAPO. In sections 9, 13 and 18, it recommends extending the duration of DAPOs to allow section 18 proceedings to conclude—we have heard concerns about that, as Liam McArthur pointed out. I welcome the cabinet secretary’s engagement with Scottish Women’s Aid on those issues. Given that group’s expertise in the area, I think that we need to consider all those suggestions very carefully as we move the bill through Parliament.
I am not sure of my time, because I am at home and have not set a clock—my apologies. I conclude by saying that I am confident that the bill will make much-needed changes to the lives of victims of domestic abuse, and I urge members to support its general principles at decision time.16:39
Pauline McNeill (Glasgow) (Lab)
First, I thank the Justice Committee for its close scrutiny of this important bill. The pandemic has sparked a plague of domestic violence that the United Nations has called a “shadow pandemic”. We are told to stay home and stay safe, but unfortunately for a lot of women, their home is not safe. Close the Gap notes that one in four women experiences domestic violence in her lifetime.
Women are not subjected only to physical abuse; they are subjected to coercive control. The Domestic Abuse (Scotland) Act 2018, which sought to criminalise coercive control, was a very significant development in the law.
The lockdown has inadvertently given abusers the means by which to further restrict their partners’ freedom and is threatening their safety. Scottish Women’s Aid reports that two thirds of survivors who identify as currently experiencing abuse told the organisation that the abuse started during Covid-19 lockdown restrictions.
The existing system of civil protection orders in Scotland offers predominately longer-term protection to the person who is at risk, so the bill seeks to add new immediate and short-term powers and adds to the legal resource for people who are at risk of domestic abuse.
The bill brings us into step with a range of countries including England, Wales, the Netherlands, Austria, Germany and Spain, which have introduced short-term protective orders that are aimed at tackling domestic abuse.
The bill also proposes two new powers that do not require that the consent of the person who is at risk be exercised. A senior police officer will have the power to impose a domestic abuse protection notice on a suspected perpetrator of abuse, and the power will be available to the civil court, on application by the police, to grant a domestic abuse protection order against the perpetrator of abuse. The bill proposes that that would last up to three months in total. Those new powers will have legal effect only in Scotland, and not in the rest of the United Kingdom.
The vast majority of victims of domestic abuse are women, although children are also victims. Children experience short and long-term cognitive, behavioural and emotional effects as a result of witnessing domestic abuse. Only this week, it was reported that the NSPCC is concerned that, during the period of the pandemic, the risk of young people suffering terrible consequences from domestic abuse has intensified. The NSPCC helpline for adults service is increasingly worried about children, and has heard from neighbours who report hearing children crying and incessant arguing in nearby homes.
The average monthly number of domestic abuse referrals from the NSPCC to Scottish agencies including the police and local authorities has risen from 32 in the first three months of last year to 42 in the last two months. Calls to the NSPCC helpline have risen by more than 50 per cent across the UK. Joanna Barrett from NSPCC Scotland said this week that
“With families facing increased pressure behind closed doors, lockdown restrictions have made some children more vulnerable to experiencing domestic abuse, as well as other forms of abuse and neglect.”
We believe that the protections in the bill need to apply equally to children who might have been direct victims of abuse.
Section 18 of the bill proposes a new power for social landlords to end a tenant’s interest in a tenancy when there has been domestic abuse. That matter was brought to my attention by the Chartered Institute of Housing and by Scottish Women’s Aid. The section intends to help tenants who have been affected by domestic abuse to remain in the family home and avoid moving into temporary emergency accommodation.
I note the contribution of the homelessness and rough sleeping action group and Scottish Women’s Aid, which have done incredible work in that area. Dr Marsha Scott, the chief executive of Scottish Women’s Aid said:
“Domestic abuse is the leading cause of women’s homelessness in Scotland”.
“We have long said that Emergency Protective Orders will make an immediate and significant difference for those women and children, offering them respite and breathing space as they seek support and safety.”
The role of social landlords is also key, but as other members have said, it is one of the aspects of the bill that will need to be tested to ensure that it is compliant with human rights law. I have a question for the minister who closes the debate. What happens to a perpetrator when they are removed from the home? Is there an obligation to house them?
I support the general principles of the bill. Once again, the Scottish Parliament has shown that it is leading the way in challenging domestic abuse for the women, children and others who are affected by it. When the legislation has gone through Parliament and undergone its scrutiny, it will make a very significant contribution.16:45
Shona Robison (Dundee City East) (SNP)
Like others, I begin by thanking the Justice Committee clerks for all their hard work on the bill so far, and the witnesses who provided extremely valuable evidence to the committee.
The Covid-19 pandemic has highlighted the importance of protecting women and girls who find themselves isolated and vulnerable due to the actions of an abusive partner. The “Stay at home” message has been particularly difficult for many women who are victims of domestic abuse because their home is not a safe place for them to be. In the year 2018-19, reported incidents rose by around 2 per cent, but in the early part of 2020, particularly during the first lockdown period due to the pandemic, the number of incidents was 9 per cent higher than it was for the equivalent period in 2019.
The bill will apply to all who are at risk of domestic abuse, but we know that women are disproportionately affected and represent 80 per cent of victims. The bill builds on legislation that came into force last year, which gave police and prosecutors greater powers to target people who engage in coercive or controlling behaviour. A person’s home should be a place of safety; the new orders that will be introduced will give victims of domestic abuse the space and time that are needed in order to address their longer-term safety and their housing situation.
The bill creates additional protection for people who are at risk of domestic abuse, particularly people who live with their abuser. The police and courts will, under the new legislation, gain powers to remove suspected abusers from victims’ homes, and to ban them from re-entering.
The bill will also allow social landlords to end or transfer the tenancy of a perpetrator of domestic abuse in order to prevent a victim from becoming homeless by enabling them to remain in the family home. That was welcomed by Dr Marsha Scott from Scottish Women’s Aid, who said:
“Domestic abuse is the leading cause of women’s homelessness in Scotland, with women often facing the impossible choice between living with an abuser and making themselves and their children homeless.”
The bill creates additional protection for people who are at risk of domestic abuse through trying to fill a gap by allowing immediate protection for a short time for a person who is experiencing domestic abuse in order to keep them safe while they work out their next steps.
Police and courts will gain powers to remove suspected abusers from victims’ homes by providing courts with a new power to make a domestic abuse protection order, which can impose requirements and prohibitions on a suspected perpetrator of domestic abuse. As I said earlier, that includes removing them from a home that they share with a person who is at risk, and prohibiting them from contacting or otherwise abusing that person while the order is in effect.
Where does the member stand on giving consideration to allowing third-party organisations such as victims groups to file applications for DAPOs?
I have some sympathy for that. We would need to explore the suggestion further to consider which organisations might be included. It would not be without its difficulties, but it is something that the committee should explore.
The bill also provides a power for the police to impose, where necessary, a very short-term domestic abuse protection notice ahead of applying to the court for a DAPO. Barnardo’s Scotland welcomed the measure and said that the new legislation would protect and safeguard victims and their families. It stated:
“Often abuse victims don’t want to move out of the home because they don’t want their children to experience upheaval. It is imperative that where possible the perpetrator is held to account and removed from the family home.”
The bill will also allow social landlords to end or transfer the tenancy of a perpetrator of domestic abuse in order to prevent a victim becoming homeless by enabling them to remain in the family home. Part 2 of the bill proposes a new power for social landlords to do just that.
The bill is intended to improve the immediate and longer-term housing outcomes for domestic abuse victims who live in social housing—that will be extremely valuable—by creating a new ground on which a social landlord can apply to the court to end the tenancy. Alternatively, where the perpetrator and victim are joint tenants, an application can be made to end the perpetrator’s interest in the tenancy and enable the victim to remain in the family home. Those are important measures.
I am pleased that the Justice Committee has backed the general principles of the proposed legislation, while highlighting some of the issues that need to be considered further and making recommendations on how the enhanced protective orders could operate effectively.
I welcome the commitment from the Cabinet Secretary for Justice to establish an implementation board to ensure that there is clear guidance on use of the legislation. As the cabinet secretary and other members mentioned, there are issues that require further consideration, including concerns about the suggested level for the evidential threshold that would enable a DAPO or a DAPN to be issued.
As other members have mentioned, there are also concerns around operational matters, which have been raised in particular by Police Scotland. I welcome the cabinet secretary’s commitment to continue to discuss with stakeholders their concerns about those and other matters that are raised in the stage 1 report, as the bill progresses to the next stage.16:51
The debate has been interesting. It is clear that the bill is required and that it has the potential to save lives, so we need to get it right. The bill has unanimous support, but members from all parties have expressed concerns about how it has been drafted and how it will work in practice.
John Finnie asked whether the bill fills a gap. Sadly, there is a gap that needs to be filled. Victims are often forced to leave their home and become homeless because they have suffered abuse. Many will return home because they are unable to cope with homelessness, and the abuse then continues—if anything, it gets worse, because the perpetrator knows that their victim has no other option. As Shona Robison said, many victims stay simply because they cannot face the homelessness that they would experience if they decided to leave.
A number of members talked about the evidential threshold for the use of a DAPN or a DAPO, and asked how people would know when those measures should be used and whether the test should be one of significant harm. I believe that that would set the bar far too high; I agree with Rona Mackay’s call for caution in setting such a bar. How would we define “significant harm”? I believe that if there is a reason to suspect that domestic abuse has occurred or will occur, a notice must be put in place. As Pauline McNeill pointed out, the notices cover coercive control as well, and any threshold that is put in place needs to take that into account.
Like others, I welcome the announcement that an implementation board will be set up to work through the concerns. That needs to happen before stage 2, but it should have happened earlier; I agree with Liam Kerr that it should have been done well in advance of the bill’s introduction.
A number of members raised issues that have to be dealt with regarding the implementation of the bill. There are things that simply do not work. Liam Kerr highlighted police concerns about the lack of partnership working and the question of who can apply for an extension. The proposal that a DAPN can be issued by an inspector or someone above that rank caused concern, because it was pointed out that an inspector would very seldom attend a report of domestic abuse. However, perhaps that would provide for checks and balances in the system, because a constable who attended a domestic abuse complaint would have to go back to the inspector and persuade them that a notice needed to be put in place as they suspected that there would otherwise be a risk to the victim of domestic abuse.
Those things have not been made clear in the bill, and people are left wondering how it will work in practice. The implementation board must deal with such issues quickly, so that we can ensure that the bill is fit for purpose and does what it is intended to do.
A number of speakers talked about how the views of children, and not only those of the victim, should be sought before a notice or order is put in place. That would be almost impossible with notices, which are to be used in emergency situations. The sheriff should certainly seek children’s views, as well as those of the victim, before an order is put in place. That must be done in a way that does not further traumatise the child. I am glad that the cabinet secretary is looking at that.
Pauline McNeill and Liam McArthur talked about the NSPCC’s findings on the need for protection for children. During the pandemic, there has been a frightening increase in the number of children seeking help due to domestic abuse. We must put protection in place for them—they should be protected in their own right by the bill.
A number of speakers mentioned human rights. Adam Tomkins asked whether the bill’s provisions are in keeping with human rights. I believe that they are; they are certainly in keeping with the Istanbul convention, which the Scottish Government has signed up to. The court will have judicial oversight of domestic abuse protection orders, and the subject of such an order can also make representations to the court. Their human rights are in no way infringed.
There were concerns that the length of time for which the notices and orders will apply could lead to human rights violations. Notices will go to court very quickly; indeed, the police expressed concerns about how quickly that will happen. Given that there is no judicial oversight of the notice, the sooner that it is in court, the better. The order, however, must apply for long enough to allow the victim to find protection in their own right and to have that put in place.
Pauline McNeill also talked about whether removing someone from their own home affects their human rights and whether they have to be rehoused. We must remember that the bill exists because women and children are being forced out of their homes every day by domestic abuse. Redressing the balance to ensure that it is the perpetrator who leaves is the right thing to do. However, at stage 2, we must consider whether the police have a responsibility to ensure that the perpetrator is not made homeless.
We support the general principles of the bill and will vote for it at decision time.16:58
Margaret Mitchell (Central Scotland) (Con)
I thank the Justice Committee and the clerks for the stage 1 scrutiny of and report on the important Domestic Abuse (Protection) (Scotland) Bill.
Sadly, and despite all efforts to the contrary, domestic abuse is still with us. Worse still, it is on the increase, with the number of incidents recorded by Police Scotland rising in the past three years. More concerning still is the fact that abuse has increased dramatically during lockdown as victims of domestic abuse have been trapped with their abusers. While we are all encouraged to stay home and keep ourselves safe to tackle the pandemic, the unpalatable truth is that home is not safe for everyone. When abuse, either physical or coercive and controlling, becomes intolerable, victims are forced to flee the family home, with all the disruption, anxiety and practical difficulties that that entails. They, and their children, may become homeless.
When someone seeks protection from domestic abuse under the existing civil law, the perpetrator can be kept away from the home can only if they enter the criminal justice system, or if the person at risk applies for a civil court order against the perpetrator.
The bill seeks to fill what has been described as a gap in the law by improving the protections that are available for those in coercive, controlling relationships who are at risk of domestic abuse, particularly when they live with the perpetrator. It provides the courts with a new power to make domestic abuse protection orders, which, when in effect, can prohibit a suspected perpetrator from contacting or otherwise abusing the person at risk. Where necessary, the police have the power to impose a short-term domestic abuse protection notice in advance of an application to the court for a DAPO.
Abusive behaviour is defined as behaviour that
“a reasonable person would consider ... likely to cause ... physical or psychological harm.”
The list of abusive behaviour is non-exhaustive and can include a single incident or a consistent pattern of abusive actions.
The bill creates a new ground for social landlords to apply to the court to end the tenancy of the perpetrator of abusive behaviour with a view to transferring the tenancy to the victim or ending the perpetrator’s interest in the tenancy, where the perpetrator and victim have a joint tenancy, and enabling the victim to remain at home. Those are good measures, which are aimed at avoiding homelessness and improving the immediate and longer-term social sector housing outcomes of domestic abuse victims.
However, various stakeholders have pointed out that the three-month maximum timescale for a DAPO may be too short to ensure that eviction proceedings can be completed. Furthermore, Police Scotland has stressed that DAPNs and DAPOs, which can require the perpetrator to leave the home that they share with the victim, should be used only where absolutely necessary, and not routinely. How often and exactly when and where DAPNs and DAPOs can be used needs to be clear. Additionally, there are some concerns that, in seeking to provide improved protection for victims, the rights of suspected perpetrators under the European convention on human rights may be infringed.
Although the bill’s objective of ensuring adequate protection for victims from their abusers is welcome, the concerns of key stakeholders must be addressed. For example, section 4 provides that only a senior police officer is able to issue a DAPN. Police Scotland and the Law Society of Scotland have questioned how that would work in practice, because senior officers are generally desk bound and rarely at the scene of a domestic abuse incident. Also, the senior officer must have “reasonable grounds” to believe there has been abusive behaviour and issue a DAPN. The Law Society questioned what “reasonable grounds” means in practice. Would a neighbour’s anonymous tip-off be sufficient, even if the victim disputes the claim? Any DAPN test must be clear and carefully considered.
Sections 7 and 16 provide that it is an offence to breach a DAPN or DAPO without a “reasonable excuse”. No explanation or examples are given as to what would constitute a reasonable excuse for breaching a DAPO or DAPN, yet both breach offences can result in not only a fine but a prison sentence. Clarification here is therefore essential. Police Scotland has legitimate concerns that officers could be held liable for failing to issue a DAPN when required or wrongly issuing one. The need for further training and guidance for police officers has been stressed. It has also been stressed that the police should be adequately resourced to, as Scottish Women’s Aid states,
“ensure the effective implementation of the Bill”.
The Scottish Conservatives know how important the bill is to the victims of domestic abuse and we whole-heartedly support its general principles. However, we consider that the bill requires considerable revision. The significant concerns about how some provisions will work in practice cannot be left to an implementation board to resolve, and they must be addressed at stages 2 and 3 to ensure that the bill protects domestic abuse victims to best effect and that police officers are sufficiently resourced and trained to properly discharge the extensive new powers that the proposed legislation gives them.17:05
This has been a very good debate. I welcome the contributions from across the chamber, and I welcome the fact that each and every member we have heard from will support the general principles of the bill at decision time, following this stage 1 debate, for which I am grateful.
I am also grateful for members’ feedback. I know that, in the midst of a global pandemic, it is difficult to have the conversations that we would normally have had on the bill—the process has undoubtedly been truncated—but I appreciate the fact that we have a comprehensive stage 1 report. Once again, I thank the Justice Committee for its report, the clerking team for the effort that it put in and all those who gave evidence to the committee.
I will spend some time addressing some of the areas of concern that were raised by members—I have taken a fair number of notes on some of them. A number of members, including Rhoda Grant, John Finnie, Rachael Hamilton and Liam Kerr, raised the interaction of a DAPN or DAPO with other core orders, particularly those relating to the children of the person against whom a DAPO is made.
To be clear from the outset, it is a criminal offence, as the bill highlights, to breach any of the terms of a DAPO or a DAPN without reasonable excuse. The fact that a contact or residence order was in effect would not change that; it would not prevent a DAPN or DAPO from taking effect. I note the committee’s view, as articulated by a number of members, that the bill should make provision to make that absolutely clear. I will give careful consideration to that recommendation. However, I would need to ensure that an amendment to that effect would not risk calling into question provisions in other legislation where the issue is not made explicit. As ever, I would wish to ensure that such an amendment would not introduce any unintended adverse consequences. I should add that it is not unusual for courts to take into account child contact orders in imposing other orders, such as exclusion orders or non-harassment orders.
A number of members referenced home detention curfew in relation to the interaction of a DAPO or a DAPN with requirements on a person to remain at a particular address. Rhoda Grant, in particular, mentioned that issue in her opening speech, and I addressed it when I gave evidence to the committee. The answer is quite straightforward in a sense. The police may well impose a DAPN if they think that one is necessary to protect a person at risk of domestic abuse, and the court may well impose a DAPO if it considers that one is necessary for the same reason, although doing so may affect existing conditions to which a person is subject, such as staying at a particular address as part of their release on HDC. When a DAPN or DAPO is imposed, it will be for Police Scotland to ensure that the information about that development is passed on to the relevant agency. For HDC, that will be the Scottish Prison Service, and for release on licence, it will be the local authority supervising officer and the Scottish ministers.
Effective operational engagement will clearly be needed. It will essentially be for the authorities concerned—the SPS or the local authority supervising officer—to determine whether the individual can remain on HDC or under their licence conditions without being recalled back to custody, or whether the circumstances of the imposition of the DAPN or DAPO merit recall. I will ensure that the issue is discussed at the Government-chaired implementation board, but I do not think that it is as complex as some members perhaps—[Interruption.] I will continue.
A number of members also raised the potential extension of powers so that other organisations could apply to the courts for a DAPO, particularly local authorities and registered social landlords, which often have to respond to domestic abuse cases.
In some cases, it might be helpful for such organisations to apply for a DAPO on behalf of a person at risk rather than have to approach the police. I know that the Justice Committee has indicated in its report that that could be considered in the future. If Parliament passes the bill, and in light of experience of the scheme’s operation, I agree that it could be considered.
A number of members, including John Finnie, Pauline McNeill and Rhoda Grant, raised the question whether the suspected perpetrator should be offered more than advice and assistance. I carefully listened to opinions on that point and remain of the view that the provision in the bill is appropriate. My concern is that, if we were to impose a further duty on social landlords, they might be reluctant to use the powers that the bill provides. Existing homelessness legislation places a duty on local authorities to provide support and accommodation to those who present as homeless.
John Finnie said that he was concerned that the bill gives the police the powers of a court of law. I have a fundamental disagreement with him on that point, which I am happy to take further in conversation with him offline. It is because we are so concerned about the ECHR implications of any DAPN and because we believe that judicial oversight is required for such significant powers that the timescale within which a police officer has to apply to the court for a DAPO—they must do so on the next court day—is so narrow. I am happy to take those issues up with John Finnie.
Rachael Hamilton asked how DAPNs would be issued in practice. I refer her to similar provisions in England and Wales, where the majority of protective orders are issued at the police station. I take the point that, in some cases, an individual might refuse to go to a police station. In those cases, the police could return to the address and issue an individual with a DAPN. If that individual was not at their address—which is not an uncommon situation for Police Scotland to face—the police would use the necessary powers to track down that individual.
Rachael Hamilton also asked about financial abuse. That comes under the definition of domestic abuse; I should add that ex-partners are also covered in the bill. However, it may be an issue if individuals live separately, in which case a DAPO might not be the correct remedy.
The debate has been good and has helped me to understand members’ main concerns. I look forward to working with members across the parties to address a number of them.
Regardless of the concerns that individual members and their parties have, I have no doubt that we are all united in ensuring that the police have every possible tool to help tackle the scourge of domestic abuse—a cancer in our society that has been of great concern, particularly during lockdown periods. I commit to working with members across the chamber, operational partners and victim support organisations, and I look forward to further engagement on the bill.
28 January 2021
Vote at Stage 1
Vote at Stage 1 transcript
The Deputy Presiding Officer (Lewis Macdonald)
There are three questions to be put as a result of today’s business. The first question is, that motion S5M-23983, in the name of Humza Yousaf, on stage 1 of the Domestic Abuse (Protection) (Scotland) Bill, be agreed to.
Motion agreed to,
That the Parliament agrees to the general principles of the Domestic Abuse (Protection) (Scotland) Bill.
The Deputy Presiding Officer
The second question is, that motion S5M-23959, in the name of Kate Forbes, on the financial resolution on the Domestic Abuse (Protection) (Scotland) Bill, be agreed to.
Motion agreed to,
That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Domestic Abuse (Protection) (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.
The Deputy Presiding Officer
The final question is, that motion S5M-23972, in the name of Graeme Dey, on approval of a Scottish statutory instrument, be agreed to.
Motion agreed to,
That the Parliament agrees that the Health Protection (Coronavirus) (International Travel and Public Health Information) (Scotland) (No 2) Regulations 2020 (SSI 2020/444) be approved.Meeting closed at 17:18.
28 January 2021
Stage 2 - Changes to detail
MSPs can propose changes to the Bill. The changes are considered and then voted on by the committee.
Changes to the Bill
MSPs can propose changes to a Bill – these are called 'amendments'. The changes are considered then voted on by the lead committee.
The lists of proposed changes are known as a 'marshalled list'. There's a separate list for each week that the committee is looking at proposed changes.
The 'groupings' document groups amendments together based on their subject matter. It shows the order in which the amendments will be debated by the committee and in the Chamber. This is to avoid repetition in the debates.
How is it decided whether the changes go into the Bill?
When MSPs want to make a change to a Bill, they propose an 'amendment'. This sets out the changes they want to make to a specific part of the Bill.
The group of MSPs that is examining the Bill (lead committee) votes on whether it thinks each amendment should be accepted or not.
Depending on the number of amendments, this can be done during one or more meetings.
First meeting on amendments
Documents with the amendments to be considered at the meeting on 23 February 2021:
First meeting on amendments transcript
Item 3 is stage 2 consideration of the Domestic Abuse (Protection) (Scotland) Bill. For that purpose, members should have with them a copy of the marshalled list and the groupings for debate. I also refer members to paper 2 in our pack, which is a letter about the bill from Police Scotland, which members will recall gave evidence to us at stage 1.
Before we start, I remind everyone that, as this is a fully virtual meeting, we will use the chat function on BlueJeans as the means of voting electronically. When I call a vote, I will ask members to type Y in the chat function to record any votes for yes. I will then do the same for votes for no, for which members should type N, and abstain, for which they should type A. Then the clerks will collate the results and I will read out and confirm how each member has voted. If a mistake is made and a member’s vote is incorrectly recorded, or if there are any issues with voting, please immediately let me know by typing R in the chat box before I move on to another vote, as once we have moved to another vote, we cannot go back.
If we lose connection with a member at any point, I will suspend the meeting and try to get the member back into the meeting. If we cannot do so after a reasonable period of time, I will have to deem that member as not present and then consider with the deputy convener whether we can fairly proceed with the meeting or whether we will need to postpone until next week.
If that is clear and there are no questions, we will make a start.
Section 1—Persons to whom domestic abuse protection notices and orders may relate
The first group concerns domestic abuse protection orders and notices and the requirement for persons A and B to live together. Amendment 1, in the name of the cabinet secretary, is grouped with amendments 2 to 4.
Thank you, convener. I will speak to amendments 1 to 4, which were lodged in my name. I welcome this stage 2 session.
During the scrutiny of the bill, important consideration was given to the practical and operational challenges of the bill. The convener has referenced the Police Scotland letter on some of those challenges. In particular, there was concern about the potential volume of cases in which domestic abuse protection notices and orders may be used.
The primary purpose of the protection orders, as well as the protection notices, is to allow for short-term, emergency protection for a person who is at risk of domestic abuse. That provides them with breathing space and with time free from the risk of interference by their abuser to take their own longer-term steps to address their safety and possibly their housing situation. As members will be aware, the need for that protection is most acute when person A, the alleged abuser, and person B, the person at risk, live together. In that situation, person B is more likely to lack the freedom to take the action that is necessary to protect themselves.
It has always been anticipated that the DAPNs and DAPOs would be used predominantly where person A and person B live together. Recognising that, and following discussions with Police Scotland and Scottish Women’s Aid, I ask members to support amendments 1 to 4. They add a requirement that person A and person B must live together some or all of the time as one of the conditions to be met in order for a DAPN or DAPO to be made.10:00
Amendment 3 is the main amendment. It amends section 1(1) of the bill with the effect that DAPNs and DAPOs can be made only if, in addition to the existing conditions as to age and relationship, person A and person B live together some or all of the time. That approach ensures that a DAPN or DAPO can be used in a case where a person lives with their partner some of the time but may, for example, have another home where they sometimes live.
Amendments 1 and 2 make minor adjustments that are needed to pave the way for the new sub-paragraph that is inserted by amendment 3, and amendment 4 is a minor technical change to reduce the risk of confusion arising from a redundant reference elsewhere in section 1.
I move amendment 1.
No members are indicating that they wish to speak in the debate on the group, so I invite the cabinet secretary to wind up and press amendment 1.
I have nothing to add in winding up and I am happy to press the amendment.
Amendment 1 agreed to.
Amendments 2 to 4 moved—[Humza Yousaf]—and agreed to.
Section 1, as amended, agreed to.
Section 2 agreed to.
Section 3—What constitutes abusive behaviour
The next group is on what constitutes abusive behaviour: additional examples. Amendment 28, in the name of Rachael Hamilton, is grouped with amendments 44 and 45.
I am not sure that we have Rachael Hamilton with us, so I will—
Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)
I am here.
Oh, you are there. Would you like to move—
Yes. Would you like me to speak to the amendment? Convener, can you hear me?
I take the opportunity to explain the intentions behind amendment 28. It centres on the financial abuse that can arise when a perpetrator can still gain access to assets or money that belong to a survivor. An example of such would be a perpetrator, or person A, who can access a joint bank account in the name of the survivor, or person B, and coercively control them through financial means, even once the relationship has ended.
It has been widely recognised that financial abuse, which is a form of domestic abuse, can continue to occur post-separation. According to the Co-operative Bank and Refuge, one in five women and one in seven men in the United Kingdom have experienced financial abuse from a current or former partner, and one third of victims did not tell anyone at the time.
During the passage of the Domestic Abuse (Scotland) Bill, the question was raised as to whether financial abuse was sufficiently encompassed by the definition of “abuse”. I engaged comprehensively with stakeholders on the ground work for amendment 28, including with the local charity, Border Women’s Aid. I have incorporated action points that it raised.
The amendment uses the same definition as “economic abuse” in the UK Domestic Abuse Bill, which is going through Westminster. Amendment 149, tabled by Baroness Lister in the House of Lords, follows a similar line of motivation to my amendment.
I engaged with the Law Society of Scotland, which said:
“At the Society, we have not become involved in the detail of the conduct or behaviour which may form part of the reasonable grounds for a DAPN as we considered this was much for the Government in their policy objectives for the Bill.
We suspect that this is rather broadly framed but it could be useful to examine what is considered to be or amount to reasonable grounds which remains a concern as to exactly how much evidence is required before a decision by the police is made for a DAPN to be made.
The problem with money related matters is that it would need to be some form of continuing conduct—not on one occasion and also it may depend on other financial arrangements between both parties”.
I clarify that I intend the provisions to cover continuing forms of conduct, not a one-off occasion.
Amendment 28 is a probing amendment. It seeks clarification from the justice secretary as to whether victims and survivors of domestic abuse are fully protected against coercive control in a financial context. In addition, it seeks to ensure that, when a DAPO or a DAPN is issued, financial abuse is taken into account under the powers in the bill.
I move amendment 28.
I thank Rachael Hamilton for lodging what she has described as a probing amendment. It is helpful to have this discussion, so that we can provide absolute clarity on the record. I also thank Border Women’s Aid for engaging with Rachael Hamilton, for raising the issues and for doing the good work that it does in its local area.
The amendments in the group are well intentioned, and Rachael Hamilton has raised the issues with me previously, in the chamber. It is important that the definition of abuse that is used in the bill is wide enough to ensure that financial abuse of the kind covered by amendment 28 and the sharing of intimate images covered by amendments 44 and 45 are included in it. I hope to give Rachael Hamilton an assurance that those aspects are absolutely covered in the definitions that we are using in the bill.
The amendments in this group are unnecessary. I am also concerned that they could have some unintended adverse consequences, and I will come to that in a second.
Members are aware that section 3, as it is currently framed, provides a description of “What constitutes abusive behaviour” by “person A”. The test is very much modelled on the definition of “abusive behaviour” that is used for the domestic abuse offence contained in the Domestic Abuse (Scotland) Act 2018. That definition was developed following some extensive engagement with stakeholders, including Scottish Women’s Aid, ASSIST, Police Scotland and the Crown Office and Procurator Fiscal Service. The intention was to provide a comprehensive statutory definition of what constitutes domestic abuse.
Section 3 makes it clear that
“Behaviour which is abusive of person B includes (in particular)”
two types. The first is
“behaviour directed at person B that is violent, threatening or intimidating”.
The second type, which is particularly relevant to Rachael Hamilton’s amendments, is behaviour that is abusive of person B by reference to the effect that the behaviour is intended to have or that
“would be considered by a reasonable person to be likely to have”
on person B.
The approach is intended to bring all behaviour that is controlling, coercive and emotionally or psychologically abusive within the scope of DAPNs and DAPOs. The list of relevant effects includes
“controlling, regulating or monitoring person B’s day-to-day activities”
“depriving person B of, or restricting person B’s, freedom of action”.
As such, the conduct that is set out in amendment 28 in particular is captured by the definition of “abusive behaviour” in the bill.
Amendments 44 and 45 are equally important in the matters that they probe. Where a partner or ex-partner threatens to disclose or discloses an intimate image of person B, that would already be captured by the definition of “abusive behaviour” under the bill. Specifically, section 3(2)(a) covers
“behaviour directed at person B that is violent, threatening or intimidating”.
Also, section 3(3)(e) provides that abusive behaviour includes behaviour that has as its purpose, or is likely to have as its effects,
“frightening, humiliating, degrading or punishing person B.”
That definition would capture sharing or threatening to share intimate images of person B without their consent. The definition in section 3(2)(a) may also capture such behaviour, depending on the exact circumstances.
It is important to remember that the description in section 3 is non-exhaustive. Therefore, it remains perfectly possible for the court to determine that behaviour is abusive, even if it does not fall within the scope of section 3, provided that the court is satisfied that a reasonable person would consider that the behaviour is likely to cause person B to suffer physical or psychological harm.
Although the definition of “abusive behaviour” in the bill already covers the areas included in the amendments, I have some concerns about the practical effects of those amendments. If they are agreed to, they would result in the definition of abusive behaviour in the bill being inconsistent with the widely supported definition of abusive behaviour that was used in the Domestic Abuse (Scotland) Act 2018. Its inclusion could have unintended consequences by calling into question the operation of the domestic abuse offence. That would not be at all desirable. Although specific further provision in those areas is well intentioned, it is not needed.
I hope that that answers Rachael Hamilton’s questions. I note that Scottish Women’s Aid has provided a briefing in which it raised similar concerns. In those circumstances, I ask Rachael Hamilton not to press amendment 28 or move the other amendments in the group. If she chooses to do so, I urge members to vote against them.
I ask Rachael Hamilton to wind up, and to press or withdraw amendment 28.
I thank the cabinet secretary for that clarification. I want to comment on the current situation in which women, through mainstream media, are being held hostage to images in the possession of other people. Such images can be used to coercively control a victim by someone threatening to release or distribute them. Ultimately, they can be used as an instrument of control. I appreciate the cabinet secretary’s acknowledgement of such serious matters.
I am satisfied that both financial abuse and the threat of revenge porn are covered by the 2018 act and that no further specific provisions are required. I will not press amendment 28.
Amendment 28 withdrawn.
Amendments 44 and 45 not moved.
Section 3 agreed to.
Section 4—Making of domestic abuse protection notice
The next group of amendments concerns domestic abuse protection orders and notices: the requirement for immediate or imminent risk of abusive behaviour. Amendment 5, in the name of the cabinet secretary, is grouped with amendments 11, 12, 14 and 17.
At stage 1, the committee heard from Police Scotland that there was some concern that the bill was not sufficiently clear that the DAPNs are intended to be emergency measures to address those cases in which there is an immediate risk of harm. Detective Chief Inspector Sam McCluskey said
“There is no component of risk in section 4. That is really important. People use the term ‘emergency order’; the police officer’s decisions on such an order will be risk-based.”—[Official Report, Justice Committee, 22 December 2020; c 28.]
On the back of that evidence session, we engaged extensively with Police Scotland—as we had prior to the introduction of the bill—and it expressed similar concerns regarding the test to be used by the court for making a DAPO and when it would be appropriate for the police to make an application for a DAPO. Following that engagement, we decided to introduce amendment 5.
As the bill stands, the police can make a DAPN only if they consider that there are reasonable grounds for believing that it is necessary to protect person B from abuse by person A during the period before a sheriff can make a DAPO or an interim DAPO. Similarly, when a court is considering whether to make a DAPO, it can only do so when it considers that that is necessary to protect person B from the risk of abuse.
By virtue of the necessity test and in view of the fact that a DAPO can run only for two months—extendable up to three months on application—I consider that it is implicit that the sheriff would have in mind whether person B was at an immediate or imminent risk of harm in deciding whether it was necessary to make a DAPO. However, in light of the concerns expressed, I consider that there is some merit in making that clear in the bill.
Amendment 5 adjusts the test for making a DAPN, so that the police are required to have reasonable grounds for believing that the DAPN is necessary to protect person B from the risk of immediate abusive behaviour by person A. “Immediately” is defined as meaning in the period before a sheriff could make a DAPO or an interim DAPO.10:15
Amendments 11 and 12 make consequential changes to section 6 in respect of the information to be contained in relation to a DAPN.
Amendment 14 adds a third issue to the matters as to which the sheriff must be satisfied in order to make a DAPO. Its effect is that the sheriff can make a DAPO only when
“there is an immediate or imminent risk of person A engaging in further behaviour which is abusive of person B”.
Amendment 17 provides that, in deciding whether it is necessary to make a DAPO to protect person B from abusive behaviour by person A, the sheriff can have regard to any risk of abusive behaviour that might occur at a later time, as well as to the immediate or imminent risk of abusive behaviour that requires to be present before a DAPO is made.
Members will be aware that other jurisdictions often refer to similar powers as “emergency barring orders”. These amendments are intended to more clearly focus part 1 of the bill on cases in which the risk to person B from person A is likely to manifest itself immediately or imminently if protection is not put in place, while still allowing protection to be put in place as necessary for up to two months.
I move amendment 5.
Rhoda Grant (Highlands and Islands) (Lab)
I am concerned about adding the term “immediately” to the bill, because it seems to me that someone who is in danger needs to be protected. The inclusion of “immediately” puts another barrier in front of the police, who might have to assess whether the threat is immediate or whether that person is in danger. If the person is in danger, they should have protection. I would like some clarification on that issue.
As no other member has indicated that they wish to speak in the debate on this group, I invite the cabinet secretary to respond to what he has heard and to wind up.
I can give some reassurance to Rhoda Grant, but if what I have to say does not reassure her, I highlight that we extensively discussed the issue with Scottish Women’s Aid. The members will note from the briefing that they have received that Scottish Women’s Aid is in support of these amendments for the reasons that I have already outlined. All that they do is clarify the use of, and the test for, a DAPN as an emergency order—which is its purpose.
You will remember that, in my stage 1 evidence, I discussed potentially lodging an amendment around the creation of a higher threshold of test—the significant harm threshold—but it became clear from our engagement with Scottish Women’s Aid that such an amendment would not be supported. Therefore, we decided to clarify that the emergency powers of a DAPN are to be used only as an emergency order and that there has to be a risk of immediate or imminent harm.
Of course, a risk of harm in the future could also be taken into consideration, particularly when a sheriff is considering a DAPO, as I have already said. The addition of “immediately” should not do anything to alter the test at all but should make it clear that a police officer has to consider the risk of immediate or imminent harm.
Amendment 5 agreed to.
The next group of amendments is on a child living with person B being able to apply for a domestic abuse protection notice or a domestic abuse protection order. Amendment 46, in the name of Rhoda Grant, is grouped with amendment 47.
Domestic abuse damages a child’s life. Their resilience and self-esteem are damaged, as are their life chances. They do not need to be a victim of or to experience domestic abuse themselves—the tension and fear that surround them create fear and insecurity within them.
Although children are offered protection under the bill, it is attached to their parent. I truly believe that children must have access to such protection in their own right. The NSPCC in Scotland has reported a 30 per cent increase in referrals made to agencies regarding children in abusive households since last April. That comes at a time when children are more isolated. Children are trapped in abusive households without the respite and support that getting out to school brings.
The incidence of domestic abuse has increased, and therefore its impact on children has increased. If children are contacting agencies for support when they witness such abuse at home, surely they should be entitled to protection and to have the abusive parent removed. That happens in other countries, such as Australia and New Zealand. Such measures are very seldom used, but they can offer another protection for children. My amendments seek to do that.
Amendment 46 relates to domestic abuse protection notices and amendment 47 relates to domestic abuse protection orders. They would allow a child to seek a notice or order for the protection of a parent from domestic abuse. That protection would extend to the child with the removal of the abusive parent from the home.
I move amendment 46.
I will speak to Rhoda Grant’s amendments 46 and 47. I listened to her remarks, but I am still slightly unsure about what the practical implication or effect of the amendments is meant to be. I hope that she can clarify that in summing up.
It is important that we have heard from Rhoda Grant about the real and negative impact that domestic abuse can have on children. I know that she has a long history of efforts in the area, and the amendments seek to respond to a very important issue. However, as I have said, I am not entirely sure what is being sought by the amendments.
I know that Rhoda Grant said at stage 1 that she would lodge amendments to provide for a DAPN and a subsequent DAPO to directly protect a child, but I am not sure about the practical effect of amendments 46 and 47, because they would allow a child to apply for a DAPN or a DAPO on behalf of their abused parent or carer. We should be reminded that the bill does not allow that for the abused parent or carer themselves; it is the police who would issue a DAPN and then apply to the court for a DAPO.
If the intention of the amendments is to provide for a supplementary DAPN or DAPO to explicitly protect a child, such an approach would not be consistent with the nature of the short-term protective measures in the bill. As members know, those are concerned with protecting a person who is at risk of domestic abuse from further abusive behaviour by their partner or ex-partner in order to provide breathing space for the person who is at risk to consider their longer-term options. Any requirement or prohibition in a DAPN or a DAPO must be necessary for the purpose of protecting a person who is at risk of abusive behaviour by their partner or ex-partner. The operation of a DAPN or a DAPO may have the indirect effect of protecting a child who resides with person B from the effects of domestic abuse—for example, through the removal of person A from the shared home and the imposition of conditions that prohibit person A from contacting or approaching, or attempting to contact or approach, any children who usually reside with person B. However, if there is a need for direct protection of a child, there is a separate child protection regime. My view is that that regime should be used for seeking protective measures for a child where necessary.
If Rhoda Grant’s intention is that a child should be capable of applying for a DAPN or a DAPO on behalf of a parent—that seems to be what the effect of her amendments would be—I cannot support that. I do not consider that it would be appropriate for the bill to contain provisions that would enable a child and, indeed, put the onus on a child to seek to engage in those processes on behalf of an abused parent. If a child is concerned about their parent or carer being the victim of domestic abuse, the appropriate mechanism would be for the child to report such concerns to the police directly or through a trusted adult, who may then respond appropriately to the individual facts and circumstances of the case. That may, of course, result in the imposition of a DAPN and application for a DAPO.
Such an approach would also create an inconsistency with the current approach in the bill, whereby the person at risk could not apply for a DAPN or a DAPO, but a child could.
For all those reasons, and in order to get a bit more clarity on the intention behind the amendments, I ask Rhoda Grant to seek to withdraw amendment 46 and not to move amendment 47.
One of the difficult things about domestic abuse is that the victim often hides the crime. The conduct that has gone on before the time when the victim decides to ask for help is often lost, simply because the victim has covered up that crime. However, a child will be aware of the crime that was committed and will be damaged by being a witness to it in some way. That does not mean that the child himself or herself is abused; it means that the child is living in a household in which domestic abuse occurs.
The bill does not offer a child any protection in their own right. The cabinet secretary has rightly said that there is child protection legislation for a child who is abused, but that legislation relates to physical abuse to a child. In this case, the child is damaged not by direct abuse but by the abuse of their parent. Therefore, there is a gap in which a child is not protected from the damage caused to them by the abuse of their parent.
My amendments seek to allow a child, possibly through a third party, such as the NSPCC, to ensure that the police will investigate and put a notice in place if the child raises the alarm to say that domestic abuse is occurring. The same should happen with an order through the sheriff court. It is important that a child can request and get that kind of protection for their parent if they are aware that that abuse is happening.
I do not intend to press the amendments at this stage. I wish that the cabinet secretary would discuss what I am trying to achieve, because there is a gap in the legislation. The last thing that I want is for us to need to go back to the legislation in future. That seems to happen every time we pass domestic abuse legislation—we realise that there is a gap, and we go back to fill it. There is a huge amount of domestic abuse legislation, and it is very piecemeal. I request discussions on the matter with the cabinet secretary. I will not press the amendments now, but I will probably bring them back at stage 3.
Amendment 46, by agreement, withdrawn.
We move to the next group of amendments. Amendment 6, in the name of the cabinet secretary, is the only amendment in the group.
Amendment 6 would strengthen the requirement that must be met for a domestic abuse protection notice to be imposed under section 4 of the bill. Members know that section 4 provides for a system of notices, which are short-term protective measures designed to keep a person safe from the immediate risk of domestic abuse. Given the nature and purposes of notices, it is critical that an appropriate balance be struck between the immediacy with which the need for such notices might arise and the procedural requirements that are placed on the police before a notice is imposed.
Unduly burdensome procedural requirements for making a notice might lead to delays in securing protection. In some cases, the aim of providing immediate protection for those at risk of domestic abuse could be compromised. Equally, the procedural requirements, especially in respect of views from those parties directly affected by a notice, should be sufficient to effectively inform police decision making.
Section 4(3) of the bill requires the police to take into account, among a number of other matters, any representations made by person A and any views of person B before making a decision to impose a notice. We have considered carefully whether the procedural requirements in that area should be clarified and made stronger. That is exactly what amendment 6 seeks to do.10:30
Amendment 6 seeks to replace the current requirements that I have outlined and instead place an explicit responsibility on the police to
“take such steps as are reasonable in the circumstances”
to establish whether person A and person B have any views in relation to the notice that they wish to be taken into account and, if they do, to obtain those views. There is a requirement for the senior constable to take into account any such views before making a DAPN.
The new provision that is proposed in amendment 6 strikes a better balance in strengthening the procedural requirements, which will help to inform decision making, while acknowledging that DAPNs are very short-term notices that are used in cases in which the immediate risk of harm needs immediate action. In particular, the police will have the responsibility to
“take such steps as are reasonable in the circumstances”.
Exactly what will be reasonable will depend on each situation. In our view, it would be unhelpful to be more prescriptive than requiring the police in each situation to assess what steps might be reasonable in the circumstances.
I consider amendment 6 to be sensible and pragmatic. It will improve the requirements that fall on the police before they can make a domestic abuse protection notice. That will help to strengthen the decision-making process. I ask members to support the amendment.
I move amendment 6.
Amendment 6 agreed to.
Section 4, as amended, agreed to.
Section 5—Content and effect of notice
Amendment 7, in the name of the cabinet secretary, is grouped with amendments 8, 9, 23 and 24.
Amendment 7 responds to concerns expressed by Police Scotland that a suspected perpetrator could seek to frustrate the system of notices and orders by failing to comply with a request under section 6(4) of the bill to provide an address at which they can be notified with details of the hearing that must be held when a DAPN has been given.
Amendment 7 gives the police discretion to decide whether to make it a requirement of the notice for person A, at the time that it is delivered, either to provide an address at which person A can be notified with the details of the hearing, or to undertake to provide such an address within a specified time or attend a specified police station at a specified time for the purpose of being given the notice of the hearing. Person A would be required to comply with any undertaking that was given.
The purpose of that discretionary requirement of a notice is to allow the police to assess whether it is necessary to make use of that requirement to ensure that notice of the hearing for an order can be given in each case. If the police decided to use the requirement and person A failed to comply without reasonable excuse, an offence would be committed under section 7 of the bill.
Amendment 8 is consequential. It provides that, unlike other requirements of a notice, which take effect when the notice is given to person A, any requirement that amendment 7 introduces takes effect only at the point when person A fails to provide an address when asked to by the constable giving the notice.
Amendment 9 is consequential. It provides what is meant by the word “specified” in amendment 7.
Amendments 23 and 24 are also consequential. They adjust references to the responsibilities of the chief constable to give person A notice of the hearing to be held when a DAPN has been issued. The changes reflect the different ways in which notice might be given by virtue of amendment 7.
I move amendment 7.
Amendment 7 agreed to.
Amendment 8 moved—[Humza Yousaf]—and agreed to.
Amendment 10, in the name of Rhoda Grant, is in a group on its own.
Amendment 10 makes it clear that a domestic abuse protection notice takes precedence over any other orders that are in place. It would not be ordinary for a notice that was issued by the police to take precedence over a court order. Therefore, the amendment makes it clear that the notice has precedence in the specific circumstances in which the threat of abuse is immediate until it can be considered by a court.
At stage 1, the committee recommended clarifying that position explicitly in the bill. The amendment would ensure that there was no doubt for those who were subject to a notice or for anyone who issued and enforced a notice about the situation in relation to other rights and orders that might be in place.
Amendment 10 would apply for only a short period until a notice went to court. At that time, existing orders could be amended by the court to ensure that the correct protection was in place.
I move amendment 10.
I thank Rhoda Grant for lodging amendment 10, which would add provision to section 5 to make it clear that any prohibition or requirement in a DAPN must be complied with, notwithstanding any existing court order that made contrary provision. The issue was aired quite extensively during stage 1 scrutiny—I was certainly questioned on it during my oral evidence session.
The example of child contact orders was given during stage 1 scrutiny. The DAPN is a very short-term protective order for a person who is at risk of domestic abuse, and it is appropriate that the police have the powers to prohibit a person who is subject to a DAPN from approaching or contacting a child, who would usually be living with the person at risk. The effect of a contact or residence order is always subject to other lawful measures that may be taken in relation to a child.
As I said in my stage 1 evidence, my view is that it is a criminal offence to breach any provision in a DAPN without a reasonable excuse. The fact that a contact or residence order was in effect would not change that. However, having considered Rhoda Grant’s amendment 10, I agree that it might be useful to include the matter in the bill, solely for the avoidance of doubt.
I support the intention behind amendment 10, but there are some technical issues with it. The mechanism through which the bill requires that the measures that are imposed by a DAPN are complied with is the creation of an offence. We would prefer to find a way to express the desired position that works with the mechanism rather than cuts across it by introducing a separate reference to the measure that is required to be complied with. We also wish to further check that a broad reference to any pre-existing court order will not have any unintended effects.
On that basis, I ask Rhoda Grant to seek to withdraw amendment 10. I commit to working with her ahead of stage 3 to deliver her policy intent, to which I am sympathetic, through a stage 3 amendment.
I welcome the cabinet secretary’s support for the intention behind amendment 10. I am willing to seek to withdraw my amendment and to do further work ahead of stage 3.
Amendment 10, by agreement, withdrawn.
Amendment 9 moved—[Humza Yousaf]—and agreed to.
Section 5, as amended, agreed to.
Section 6—Further requirements in relation to notice
Amendments 11 and 12 moved—[Humza Yousaf]—and agreed to.
Section 6, as amended, agreed to.
Section 7 agreed to.
Before section 8
Group 8 is on enabling other agencies to apply for a domestic abuse protection order. Amendment 29, in the name of Liam Kerr, is grouped with amendments 30 to 33, 35 to 38, 42 and 43.
Liam Kerr (North East Scotland) (Con)
Amendment 29 would introduce to the bill the concept of a supporting agency. A supporting agency is one that would have appropriate training to deal with cases of domestic abuse. The Scottish Government already works with various domestic abuse agencies and has a clear understanding of organisations that have such training.
Amendment 29 would allow those supporting agencies to apply for a domestic abuse protection order. Under the bill’s current provisions, only the police will be able to make such an application. In its written submission, Police Scotland stated that it would be prudent to extend that power to other agencies that have experience of dealing with domestic abuse cases. It noted not only that those agencies have more expertise on the matter, but that the proposal would reduce the burden of work that the police would be obliged to conduct under the bill. Scottish Women’s Aid was supportive of the idea of allowing relevant agencies to apply for a domestic abuse protection order.
Under amendment 29, the regulations that would set out which agencies could be included would be subject to the negative procedure. My amendments 30 to 33, 35 to 38, 42 and 43 would introduce provisions for the supporting agencies into the appropriate areas of the bill, such that the police and supporting agencies would be able to apply for domestic abuse protection orders. The amendments would ensure that the appropriate obligations for making an application for a domestic abuse protection order would apply to supporting agencies.
I move amendment 29.
No other member has indicated that they wish to speak in the debate, so I call the cabinet secretary.
[Inaudible.]—and the other amendments in the group, lodged by Liam Kerr. At present, the bill empowers the police, but no other agency or organisation, to apply for a DAPO. As Liam Kerr said, the issue has come up on a number of occasions during the committee’s consideration of the bill. I am sympathetic to the idea of that power. The other amendments in the group are consequential to amendment 29 and would adjust the provisions of the bill to reflect the existence of the regulation-making power.
Again, I reference the committee’s stage 1 report, which indicated that the majority of evidence that the committee heard supported the police as being the “appropriate body” to apply for a DAPO, and that
“The Committee also heard evidence that future consideration could be given to broadening out the scope of those who can apply for DAPOs, but only in circumstances where such bodies are properly resourced so as to avoid unintended consequences”.
I listened carefully to what Liam Kerr had to say about training. I consider that there is merit in future proofing the legislation to allow other bodies, possibly, to be added to the list of those that can apply for a DAPO. We have to ensure that there is appropriate training. We know how much training Police Scotland has had in relation to domestic abuse, and therefore it would be incredibly important that any other body that had the power to apply for a DAPO was also well trained and appropriately resourced.
However, at this point, I ask Liam Kerr not to press his amendments. I will commit to working with him ahead of stage 3 to develop suitable amendments. The reason for that is to allow for consideration of how we best future proof through adding a regulation-making power. Such a power is the right approach. However, I might be the first cabinet secretary in history to suggest that the scrutiny should be strengthened. I do not think that it should be done by negative procedure, as proposed in amendment 29. Given the importance and the issues that have to be considered, it would be better for the procedure to be affirmative. That would give Parliament a greater chance to scrutinise and be reassured that any bodies that were being added were fully ready to take that responsibility when it comes to training, resource and all the other matters that I have discussed.
There are also technical deficiencies in the proposed regulation-making power, but I do not need to go into those in detail.
I ask Liam Kerr not to press his amendments. I am sympathetic to what he is trying to achieve. I offer to work with him ahead of stage 3 to develop suitable amendments that can deliver the policy intent that he and I would like.
Rhoda Grant has indicated that she wishes to speak. I remind members that, in debates, they should speak before the cabinet secretary responds, so that he can respond to all the points that have been made. I call Rhoda Grant.10:45
I am not making a substantive point—I simply want to say that I support the amendments. It is important to give visibility to organisations such as Scottish Women’s Aid, because on many occasions they will know an awful lot more about domestic abuse than the police do, and they might be the first port of call for victims.
I invite Liam Kerr to wind up and say whether he wishes to press or withdraw amendment 29.
I thank the cabinet secretary and Rhoda Grant for contributing to the debate, and for acknowledging that they are sympathetic to what my amendments are trying to achieve.
I recognise that there are challenges with training and resourcing in particular, and I listened carefully and favourably to the cabinet secretary’s commitment to work to develop and future proof the legislation. I acknowledge his comments, and those of Scottish Women’s Aid, which sent us a briefing last night, on the challenges with the negative procedure that I have included in the amendments.
I am pleased to confirm that I will seek to withdraw amendment 29, and that I will not move my other amendments. However, I look forward to working with the cabinet secretary to deliver the policy intent that I think that we all want to achieve.
Amendment 29, by agreement, withdrawn.
Section 8—Making of domestic abuse protection order
Amendments 30 and 47 not moved.
We move to the next group. If we maintain this pace, I think that we can be optimistic that we can complete stage 2 consideration today, but I intend to take a short pause of no more than five minutes after this group.
Amendment 13, in the name of the cabinet secretary, is grouped with amendments 15, 16, 20 and 21.
I confess that I wrestled with this group of amendments, and with amendment 15 as the substantive amendment, most of all. They deal with a particularly sensitive issue around coercive control. Amendment 15 will provide that consent from person B is required for a domestic abuse protection order. That is a new requirement, which has been developed following discussions with Scottish Women’s Aid and after listening to evidence to the committee at stage 1.
A number of those who gave evidence during stage 1 scrutiny, including Scottish Women’s Aid, made it clear that they view the system of orders as being about protection for a person who is at risk of domestic abuse, so that that person can be empowered to make their own decisions about their future situation. I agree with that, and that is how the system was envisaged.
However, Scottish Women’s Aid has indicated directly to the Scottish Government and to the committee that, in order to ensure that the person at risk is fully empowered to make decisions about their situation, their consent should be required for the making of a full DAPO. In particular, Scottish Women’s Aid suggests that if, by the time a court is considering an application for an order, the person at risk has not given their consent, it would not be appropriate or potentially proportionate for an order to be imposed.
The committee acknowledged in its stage 1 report that it may be difficult for the person at risk to provide consent because of the issues around coercive control, which we all know about and understand. The amendments do not change the fact that consent is not required for the making of a DAPN. In addition, amendment 21 adds to section 10 a provision to make it clear that consent is not needed for an interim DAPO to be made.
Decisions on any given application for an order will always be for the sheriff to determine. Depending on the precise circumstances of an application, the sheriff will have the ability, by making an interim order, to provide the person who is at risk with some time away from the suspected perpetrator in order to fully consider their situation.
Scottish Women’s Aid considers that any such time away that can be provided could be key in obtaining consent to the making of a full order. Its view is that, if consent is not given because the view of the person at risk is that an order would not benefit them in their situation, the court should respect that and should not impose an order against the person’s wishes.
Amendment 13 is a technical amendment that will pave the way for amendment 15. Amendment 16 is a minor consequential amendment that reflects changes in structure and numbering. Amendment 20 is consequential to amendment 15 and will remove the provision that says that consent is not required.
We are dealing with a sensitive and important area of the bill. I have listened to the arguments that have been made and I have reached the finely balanced view that for a full order—but only for a full order—consent should be required.
At stage 1, I gave evidence that coercive controlling behaviour could result in consent being withheld. However, I am satisfied that the amendments will strike the appropriate balance by providing some flexibility when DAPNs and interim DAPOs are being considered and by very much respecting person B’s autonomy by making consent a prerequisite for a full DAPO. If there is sufficient evidence that person A is using tactics of coercive control to prevent or inhibit person B from providing consent to a DAPO, the appropriate route will be for the police to report that to the Crown for consideration of prosecution.
I move amendment 13.
I agree with the cabinet secretary that we are dealing with a particularly sensitive aspect. An important element of including provisions on coercive and controlling behaviour in the Domestic Abuse (Scotland) Act 2018 was the training that not only the police but legal services would require to appreciate the nuanced abuse that the act addressed.
What discussions has the cabinet secretary had with the police? I imagine that the training programme has been rolled out. In the time between the granting of a notice and the application for an order, would the police be likely to deploy their specialist domestic violence staff to deal with the situation? Such staff use their understanding of coercive and controlling behaviour more regularly. Has that featured in discussions?
In no way do I disparage any officer, but we know that there are those who regularly address such situations. In many cases, Scottish Women’s Aid deals with such people. Has that featured in discussions?
There could be tight timeframes for making a lot of important decisions. We must respect the individual’s wish but not allow any suggestion that coercive and controlling behaviour has influenced their decision about an order. What discussions has the cabinet secretary had with the police about the handling of such sensitive issues in a potentially tight timeframe?
I thank John Finnie for his incredibly important questions. I will make two substantive points. As he might be aware, after the 2018 act was passed, police officers undertook extensive training on domestic abuse—14,000 officers were given specialist training, which I confirm included coercive control. The vast majority of our police officers—14,000 who are on the front line—have had that extensive training.
John Finnie discussed matters that are of course operational but, to reassure him more, I note that I talked in my response to the committee’s stage 1 report about an implementation board, which will include Police Scotland as a key member.
As a final reassurance, to make it absolutely clear, we are talking about requiring consent for a full DAPO. My amendment would not change what is currently in the bill on a DAPN or interim DAPO. I hope that, taken together, that gives John Finnie some element of reassurance.
Amendment 13 agreed to.
Amendments 14 to 17 moved—[Humza Yousaf]—and agreed to.
Amendments 31 to 33 not moved.
We have reached the next group, colleagues. We will suspend to enable members to take a comfort break and will reconvene at one or two minutes past 11.10:56 Meeting suspended.
11:02 On resuming—
The next group concerns the making and extension of domestic abuse protection orders. Amendment 18, in the name of the cabinet secretary, is grouped with amendments 18A, 19, 25, 25A and 39.
We have been making good pace, convener, so I hope that you and committee members will forgive me if I take some time on the amendments in this group.
Amendments 18 and 25 are a proportionate response to the recommendation in the stage 1 report on section 8(6)(d), which provides that, where a sheriff is
“considering making provision in an order which would relate directly to a child”,
the sheriff must take into account
“any views of the child of which the sheriff is aware”.
In its report, the committee recommended that I
“ensure that the provisions in this Bill are consistent with the Children (Scotland) Act 2020 and other relevant legislation.”
It is important to note a fundamental difference between the 2020 act and the protective order scheme in the bill. Court proceedings affected by the 2020 act’s provisions that relate to the views of children include contact and residence disputes, adoption and permanence cases and children’s hearings cases. Proceedings of that nature are always and inevitably going to directly affect the children to whom they relate; in contrast, DAPNs and DAPOs are concerned with protecting persons aged 16 or older from the risk of domestic abuse and might or might not contain provisions that directly relate to a child. A DAPO can make provision that relates to a child, but only where that is necessary for the purpose of protecting the person who is at risk.
As members know, and as I have stressed throughout today’s meeting, DAPNs and DAPOs are short-term, emergency notices and orders. As such, I am not persuaded that adopting in its entirety the approach taken in the Children (Scotland) Act 2020 would be appropriate. In the debate on an earlier grouping, I explained that we need to strike a careful balance between acknowledging the rights of all children to be heard effectively and the constraints of a scheme that is designed to react swiftly to situations in which adults are at risk of domestic abuse.
It is important to reflect on the committee’s words. In paragraph 247 of its stage 1 report, the committee was clear:
“The legislation must work in practice if it is to be effective even if it is only used, as the police said, in exceptional circumstances. Passing legislation that cannot easily be used will not help victims of domestic abuse.”
On balance, I am persuaded that a proportionate response would be to have a duty on sheriffs to
“take such steps as are reasonable in the circumstances to give the child an opportunity to express views”
“the sheriff is considering making provision in an order which would directly relate to a child.”
Amendment 18 amends section 8 to provide for that.
On what steps it would be reasonable to take in the circumstances, the intention is that, where it is reasonably possible for the sheriff to give the child an opportunity to express views in the time available before making a DAPO, that should be done. However, where that cannot reasonably be done before making a DAPO, the sheriff is not prohibited from making provision directly relating to a child where that is necessary for the purpose of protecting the person at risk of domestic abuse. The sheriff is then obliged to take into account any views of the child of which they are aware, whether as a result of the steps taken to give the child an opportunity to express their views or otherwise. In taking account of the views of the child, the sheriff must take into account the child’s age and understanding.
Amendment 25 makes equivalent provision where the sheriff is considering an application to extend, vary or discharge a DAPO.
Amendment 19, in the name of Rhoda Grant, also seeks to address the concerns that were expressed by the committee about how the views of children will be considered by the court. It a creates a duty for the sheriff to provide an opportunity for the child to give their views
“(i) the manner the child prefers, or
(ii) a manner that is suitable to the child if the child has not indicated a preference or it would not be reasonable in the circumstances to accommodate the child’s preference.”
That would apply in any case where the sheriff considers that there is a child whose interests are “relevant” to the making of an order or
“where the sheriff is considering making provision in an order which would directly relate to a child.”
I have sympathy with the intent behind amendment 19 but I am deeply concerned that placing an absolute requirement on a sheriff to seek the views of the child in every case where they are considering the matters under section 8(6)(c) and (d) of the bill carries a serious risk of unintended consequences. As members will be aware, court decisions relating to, for example, child contact and residence can take a considerable amount of time to be determined by the courts. In contrast—and as supported by the committee—DAPOs are short-term, emergency orders that are intended to protect someone at immediate risk of domestic abuse, and they require to be made very quickly. The maximum time that an interim order can run for before a decision is made on a substantive order is three weeks.
Obtaining views from children on sensitive matters such as allegations of domestic abuse concerning their parents has to be done sensitively and professionally by people with expertise in doing such things. For that reason, it is important that, rather than there being the absolute requirement provided for in amendment 19, the sheriff is able to consider whether it is reasonable to seek the views of a child, as would be the case under amendment 18 in my name, taking account of all the facts and circumstances of the case before them, including the timeframe in which a decision about a DAPO has to be made. That should provide a certain level of flexibility and ensure that a DAPO can still be made where necessary for the protection of a person at risk, even if it has not been possible within the timeframe to give the child an opportunity to express their views.
Amendment 39 makes an equivalent change to the provision concerning variation, extension and discharge of DAPOs. I have the same concern about amendment 39. I prefer my amendment 25, which gives a proportionate response to the committee’s concerns.
I understand that amendments 18A and 25A in the name of Rhoda Grant have been lodged as alternatives to amendments 19 and 39. Those amendments, which would amend my amendments 18 and 25, seek to introduce a presumption that a
“child is capable of expressing a view”
in relation to the making of a DAPO. They would also give the child the opportunity to express their view
(i) the manner the child prefers, or
(ii) a manner that is suitable to the child if the child has not indicated a preference or it would not be reasonable in the circumstances to accommodate the child’s preference.
Those amendments would not place the same inflexible additional burden on the courts that amendments 19 and 39 would.
However, as I have explained, we have to balance very carefully the importance of seeking the views of children in appropriate cases with the need to ensure that the system that we put in place is flexible and manageable enough to work as a means of quickly determining applications for emergency orders.
It is not clear, for example, what would be required for the sheriff to override the statutory presumption that a
“child is capable of expressing a view”
in the making of a DAPO. We would all recognise that there will be some children who, perhaps because they are very young, would not be capable of offering a view in the making of a DAPO and, in a situation where the court requires to obtain the views of a child very quickly, it may not always be realistic to establish, for example, the child’s preferred manner of giving evidence.
To conclude, I have concerns that amendments 18A, 19, 25A and 39 would place further inflexible burdens on the court in cases that can be complex and require decisions to be made quickly. As such, while I sympathise with Rhoda Grant’s motives in lodging the amendments, I ask members to support my amendments 18 and 25 and to reject amendments 18A, 19, 25A and 39.
I move amendment 18.
My amendments in the group seek to strengthen the manner in which children’s views are taken into account by a sheriff looking to put in place a domestic abuse protection order. Children are detrimentally impacted by domestic abuse and it is important that they are reassured during the process and have their views taken into account. Given that the hearings could be traumatic, the more protection that is in place for children, the better.
Amendments 19 and 39 lift provisions on taking the views of children from the Children (Scotland) Act 2020, which were considered and agreed by the Justice Committee only a short time ago. For that legislation, the committee considered how the views of a child should be taken into account by the court when considering disputes between parents, and it determined that, in those situations, it should be presumed that children had a view and the court should allow children an opportunity to express those views in their preferred manner. I see no reason why that principle should not also apply here. I believe that we all wish to ensure that, in such important circumstances, children’s views are sought and that that happens in a manner that is suitable to them.
As similar language has been used in recent legislation, my amendments would keep a level of consistency for the courts in their approach to taking the views of children. I was in the process of drafting them when the cabinet secretary lodged amendments 18 and 25, which attempt to do the same thing. However, I believe that the cabinet secretary’s amendments do not go far enough. The requirement to seek children’s views is not as strong, and they leave too much to the subjective decision of the sheriff. I therefore lodged my amendments to those amendments.
Amendments 18A and 25A would add the important presumption in favour of a child’s ability to form an opinion and a requirement to appropriately seek those opinions to the cabinet secretary’s amendments, bringing them more in line with the Children (Scotland) Act 2020. My preference would be for the committee to agree to my amendments 19 and 39, because they are less ambiguous. However, I have also lodged the amendments to the cabinet secretary’s amendments, which would, I hope, strengthen them and bring them into line with the 2020 act.
As I have said before, children are not bystanders. They are damaged by domestic abuse and they need to have their views taken into account. Sheriffs are not always experts in domestic abuse and they often do not understand its implications. We see that daily in our constituency case work, with people seeking custody orders in order to perpetrate domestic abuse and sheriffs agreeing to impose those orders, leaving both the victims and their children in danger.
I ask the committee to back my strengthening amendments to allow children’s views to be taken into account.
I move amendment 18A.11:15
I will first turn to practical matters, because I always want to understand what the implications are. Rhoda Grant is entirely right to talk about consistency of approach and the value that should be placed on children’s views, and to say that children are damaged by domestic abuse. However, we must think of the timeframe. We are talking about DAPOs. I can see how, for an order with a longer term—[Inaudible.]—so with an extension of an order, there is a possibility. I cannot imagine anything that would traumatise a child more than being removed from their bed in the early hours of the morning to give an explanation to inform a decision. That in itself is potentially abusive.
I know that that is not the approach that anyone wants to take, but we have to try to understand the practical effects of things. In an ideal world, there would be time for reflective consideration and for things to be done appropriately. We know that all children are individuals and they all have different ways of seeing things and different ways in which they would be happy to relate what they have seen.
I have concerns about the approach, although not about the intention behind it, because I do not doubt for a second that Rhoda Grant wants to make things better and wants informed decision making. I am just not convinced that it would work in practice, because of the immediacy, which is what this is all about—an immediate response to an emergency. Perhaps she will comment on that.
Thank you, Mr Finnie. I invite the cabinet secretary to wind up first, and then I will ask Rhoda Grant to wind up and to press or withdraw amendment 18A.
I emphasise the point that was made by John Finnie. I do not think that anybody would question Rhoda Grant’s motives or the intentions behind her amendments. She has spoken well and often during debates on domestic abuse, as she has done today, about the importance of children and the effect that domestic abuse can have on them. We all recognise that—I do not think that a single committee member takes a contrary view.
However, my concern is the fact that Rhoda Grant’s amendments could have the unintended adverse consequence of derailing a DAPO, because of the very tight timeframe for a protective order. The inflexible approach in the amendments could derail a DAPO if a child’s views could not be taken within the timeframe. That could happen if a child were scheduled to give evidence—or rather give their views in a sensitive way in an evidence suite—but, for whatever reason, they were unable to attend on that day and another date could not be scheduled. In such a case, a sheriff could not impose a DAPO even if they believed a person to be at risk. That is the danger of the inflexible approach, and that is why I request that members support my amendments. If Rhoda Grant presses amendment 18A and moves her other amendments, I hope that members will reject them for that reason.
With reference to John Finnie’s concerns, my amendments do not apply to a DAPN, so children would not be taken out of their beds and asked for their opinions.
Amendment 18A states that “the child’s views” would be taken in
“a manner that is suitable to the child if the child has not indicated a preference or it would not be reasonable in the circumstances to accommodate the child’s preference”,
so there is still a get-out clause. Although my amendments strengthen what the cabinet secretary is saying, they do not insist that views are taken in the child’s preferred way, only that their views are taken. I believe that that is reasonable and that it puts in a protection for children that the cabinet secretary’s amendments do not.
I press amendment 18A.
The question is, that amendment 18A be agreed to. Are we agreed?
There will be a division.
Grant, Rhoda (Highlands and Islands) (Lab)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Finnie, John (Highlands and Islands) (Green)
Kerr, Liam (North East Scotland) (Con)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Robison, Shona (Dundee City East) (SNP)
Tomkins, Adam (Glasgow) (Con)
The result of the division is: For 1, Against 7, Abstentions 0.
Amendment 18A disagreed to.
Amendment 18 agreed to.
Amendment 19 not moved.
Amendment 20 moved—[Humza Yousaf]—and agreed to.
Section 8, as amended, agreed to.
Section 9—Content and effect of order
The next group concerns the maximum period for which a domestic abuse protection order or interim order may have effect. Amendment 34, in the name of Rhoda Grant, is grouped with amendments 40 and 41.
When the committee took evidence, it was clear that the bill’s timeframes for the length of time for which an order could be put in place were short. The bill’s aim is to fill a gap in the law whereby victims of abuse have limited recourse or protection other than civil protective orders, for which the processes are often lengthy and costly. That would be the case in normal times but, at the moment, due to the pandemic, the length of time for which people have to wait to access the courts is even longer.
The concern is that the short timeframes in the bill undermine the intention to fill the current gap. If orders are too strictly time limited, there is a risk that the time will run out and victims will again be at risk of harm. Alternatively, where an immediate risk still exists—as is likely if other protections are not yet in place—there will simply be a perpetual cycle of interim orders. That is likely to be traumatic for victims and children, it would not prioritise their safety and, I suggest, it would not be a valuable use of court and police time.
In order to take that into account, amendment 34 would increase the maximum length of an order from two to six months. Such a timeframe is proposed to reflect the evidence that the committee heard, which was that applications for exclusion orders can take up to six months and those for other civil protection orders even longer.
Amendments 40 and 41 would alter the arrangements for extending an order. Amendment 40 would remove the one-month limit for extensions in order to limit the likely burden on the courts. Amendment 41 would remove the overall maximum limit for domestic abuse protection orders or, as an alternative, leave it to the sheriff to extend an order until such time as they believe is necessary. When setting that timeframe, the sheriff will know when the courts are likely to hear an application for a non-harassment order, an exclusion order or the like. That means that they could determine for how long an order should be in place, taking into account the specific circumstances of individual cases. If the sheriff believes that the subject of the order will not be able to obtain other protection, they can extend the domestic abuse protection order to provide such protection for the future.
Importantly, an order would still be time limited and it could not remain in effect once other suitable arrangements were in place and/or the protections of a DAPO were no longer necessary. Amendment 41 would also retain the three-week limit for interim orders given that, as their name suggests, they are intended to be short lived.
I commend that approach to the committee as it is more practical, given the reality of alternatives for victims of abuse. It would create a clearer distinction between the purpose of interim orders and that of full domestic abuse protection orders.
I move amendment 34.
No other member wants to speak on the group, but I would like to say something. I recall that, when the committee took evidence on the issues at stage 1, significant European convention on human rights concerns were raised about the dangers of extending the duration of DAPNs or DAPOs. Perhaps the cabinet secretary could touch on that, or Rhoda Grant might respond to it in winding up.
I will address that point at the end of my remarks, convener.
Rhoda Grant has articulated why she believes that amendments 34, 40 and 41 are necessary. Members have a briefing from Scottish Women’s Aid, which does not support the amendments, and many of the reasons that it gives for that are the same reasons why I cannot support the amendments.
I remind members that, as I keep saying, DAPNs and DAPOs are intended to be short-term, emergency orders. As the committee put it in paragraph 209 of its stage 1 report,
“DAPNs may provide a useful, short-term tool to be used in emergency situations to complement existing civil measures and the current powers afforded to the police.”
As such, the notices and orders are not replacements for the longer-term civil protective orders such as exclusion orders, interdicts and non-harassment orders, which a person who is experiencing domestic abuse might decide to take out to address a longer-term housing situation.
I am aware that the committee heard concerns that an application for an exclusion order or interdict would not necessarily be determined by the court within three months. That might be true, but courts can grant an interim exclusion order or interim interdict much more quickly, and I am content that the three-month maximum time that the bill provides for is sufficient for that to happen.
I appreciate that there will be cases in which the long-term plan of a person at risk may not be to remain in the home that they previously shared with person A and that where, for example, they decide to sell a home that they own together, that could take longer than three months. It has always been the intention that, in such cases, the person at risk would be able to seek an interim exclusion order or interdict to provide protection during that period.
I am aware that the committee has heard specific concerns about the situation in which the landlord of a person at risk has made an application for a change of tenancy to remove the suspected perpetrator from the tenancy, where it is unlikely that that will be resolved within the three months for which a DAPO can run. In such a situation, the person at risk could apply for an interim interdict or interim exclusion order.
I accept that, in the very specific situation in which there is an on-going court action to remove a suspected perpetrator from a tenancy, there is possible merit in avoiding the person at risk having to initiate their own court action separately from the action that is taken by the landlord. As such, I commit to giving further active consideration to the issue and potentially to amending the bill to enable a DAPO to be extended beyond three months in the very specific case in which the landlord of a person at risk has made an application to the court to reassign a shared tenancy.
The final thing that I will say on Rhoda Grant’s amendments in the group is on the issue that the convener raised. There is no doubt that there could be ECHR concerns in relation to the proportionality of having a six-month period. We are satisfied that the three-month period that is set out in the bill as the absolute maximum that a DAPO could apply for is proportionate. There is no doubt that, if we had open-ended DAPOs, which would be the effect of one of the amendments, there would be potential consequences or questions would be raised about whether that was proportionate, particularly given that we are talking about an individual who has not been convicted of a crime at that stage, or certainly not of a domestic abuse offence.
For those reasons, although I recognise the motives and the intention behind Rhoda Grant’s amendments, we cannot support them.11:30
I invite Rhoda Grant to wind up and say whether she will press or withdraw amendment 34.
I still have some concerns about the three-month period simply not being long enough, but I take on board that the cabinet secretary has today offered further discussion about extending the orders, albeit on very specific points. I will not press my amendment.
Amendment 34, by agreement, withdrawn.
Section 9 agreed to
Section 10—Interim domestic abuse protection order
Amendment 21 moved—[Humza Yousaf]—and agreed to.
The next group is entitled “Domestic abuse protection orders and interim orders: appeals etc”. Amendment 22, in the name of the cabinet secretary, is grouped with amendments 26 and 27.
Amendment 27 inserts a new section into part 1 of the bill. It makes clear that decisions to make or refuse to make a DAPO and decisions to extend, vary or discharge a DAPO or refuse to do so are decisions that are appealable under section 110(1) of the Courts Reform (Scotland) Act 2014, meaning that an appeal may be taken without the need for permission.
The new section goes on to address the fact that, when a decision of a sheriff is appealed, the general default position is that the decision is suspended until the appeal is determined. That means that, where a decision to grant a DAPO is appealed, the order would not take effect until the appeal had been determined, unless the Sheriff Appeal Court chose to make an order departing from that position.
I think that, in this case, it is preferable for the default position to be that the original decision will continue, in effect, unless the Sheriff Appeal Court, taking account of all the facts and circumstances of the case, decides otherwise. That will ensure that the protection that is offered by the making of a DAPO will continue while any appeal is being considered.
Subsections (3) to (5) of the proposed new section therefore reverse the normal default position and provide that, in all appeal cases involving DAPOs, the original decision will continue, in effect, pending determination of the appeal. However, the Sheriff Appeal Court and the Court of Session, where the decision is remitted to that court, have the power to override that default position and suspend the effect of the original decision.
Subsections (6) to (8) set out a broadly similar position in relation to appeals to the Court of Session against decisions of the Sheriff Appeal Court.
Section 15(2)(b) of the bill provides that applications to extend, vary or discharge DAPOs or interim DAPOs under section 12(1) should be made to a sheriff of the same sheriffdom as the sheriff who made the order to which the application relates. It does not cover cases where the order is made by an appeal court. I do not think that it would be appropriate for applications under section 12(1) in relation to such cases to have to involve the appeal court that made the order. Amendment 26 therefore amends section 15(2)(b) to ensure that all applications for extension, variation or discharge, including in cases where the order was made in the course of appeal proceedings, should be made by a sheriff in the same sheriffdom where the original application for a DAPO was considered.
Amendment 22 is consequential to amendment 26.
I move amendment 22.
No member has indicated that they wish to speak on the group. I invite the cabinet secretary to wind up, if he wishes.
I have nothing to add other than to confirm that I will press the amendment.
Amendment 22 agreed to.
Section 10, as amended, agreed to.
Section 11—Hearing to be held where domestic abuse protection notice has been given
Amendments 23 and 24 moved—[Humza Yousaf]—and agreed to.
Section 11, as amended, agreed to.
Section 12—Extension, variation or discharge of order
Amendments 35 to 38 not moved.
Amendment 25 moved—[Humza Yousaf].
Amendment 25A not moved.
Amendment 25 agreed to.
Amendment 39 not moved.
Section 12, as amended, agreed to.
Section 13—Extension, variation or discharge of order: further provision
Amendments 40 and 41 not moved.
Section 13 agreed to.
Section 14—Interim extension or variation of order
Amendments 42 and 43 not moved.
Section 14 agreed to.
Section 15—Jurisdiction and competence
Amendment 26 moved—[Humza Yousaf]—and agreed to.
Section 15, as amended, agreed to.
After section 15
Amendment 27 moved—[Humza Yousaf]—and agreed to.
Section 16 agreed to.
After section 16
The next group concerns a report on the operation of part 1. Amendment 48, in the name of Liam Kerr, is the only amendment in the group.
Amendment 48 seeks to introduce a reporting requirement for the Scottish ministers to examine and monitor the number of domestic abuse protection notices and orders that are made, the number of offences for breaches that are reported and the number of convictions obtained. The bill does not contain a duty to report on its operation. That is undesirable, particularly given that there is such a duty under section 14 of the Domestic Abuse (Scotland) Act 2018. It would seem reasonable to introduce a similar duty to the bill.
I note that the briefing from Scottish Women’s Aid suggests that monitoring should be in line with identified good practice. I am also cognisant of the Law Society of Scotland’s opinion that, if the notices and orders add to the number of existing criminal and civil law provisions, as per paragraph 24 of the policy memorandum, such reporting would allow scrutiny of their specific use. I look forward to hearing the cabinet secretary’s thoughts on the issue.
I move amendment 48.
It is the Scottish Government’s intention to ensure that information and data are made available about the operation of the new powers in the bill. That will help to inform Parliament and the Government when it comes to future policy and it will help them to assess the effectiveness of the bill, assuming that we pass it, which I hope we will.
In recent years, it has become more common to include reporting requirements in legislation. On that basis, I accept the principle of amendment 48, but I ask Liam Kerr not to move it at this stage but instead to commit to work with the Government ahead of stage 3 to develop an agreed approach. That would be preferable, because we should take some time between stages 2 and 3 to assess what it would be best to include in any reporting requirement.
What information do we need in order to deliver useful information on the effectiveness of the legislation? Some of that might be very similar to what is proposed in amendment 48—for example, the numbers of notices and orders that have been imposed. That is reasonably sensible. However, it would be advantageous to assess whether all the information is strictly needed and, crucially, whether the criminal justice agencies are capable of delivering it.
The requirements of amendment 48 seem to be very focused on data. Data is important, but effectiveness of outcomes is also important. In addition to binary data—for example, the number of DAPOs that have been made and the number that have been breached—we might require qualitative research to be undertaken, for example with people for whose protection DAPOs have been made.
On that basis, I ask Liam Kerr not to press amendment 48. I commit to working with him ahead of stage 3 to develop an amendment that will deliver the policy intent of a reporting requirement that is not only meaningful, but deliverable.
It makes sense to ensure that data can be collected from agencies and it entirely makes sense to consider whether we need extra information. Have I correctly captured everything that needs to be in such a report? I am persuaded by the cabinet secretary’s representations and I will be pleased to work with him before stage 3 to ensure that what we ultimately produce will be both meaningful and deliverable. For those reasons, I will seek to withdraw amendment 48.
Amendment 48, by agreement, withdrawn.
Section 17 agreed to.
Section 18—Additional ground for ending tenant’s interest in house
The next group concerns termination of Scottish secure tenancies. Amendment 49, in the name of Rhoda Grant, is grouped with amendments 50 and 51.
Amendment 49 aims to protect victims from landlords who could move to evict what they see as problematic tenants. There are antisocial behaviours that can be linked to domestic abuse cases—things like rent arrears or drug or alcohol misuse—[Inaudible.] When proceedings have already been raised by landlords against tenants subject to action, the amendment aims to give the victims breathing space while dealing with the fallout from that action. The provision would apply irrespective of the grounds for recovery of possession that the landlord sought to rely on, as it is impossible to know how the impact of domestic abuse could be manifesting itself. Pausing proceedings would allow the victim to get support to deal with the issues that were a cause for concern.11:45
Amendment 50 would allow for a victim’s tenancy to be regarded as a new tenancy rather than a continuing tenancy. That would mean that, if there were rent arrears, the victim would not be left solely liable for them. The rent arrears could be sought from the victim and the abuser separately, and the victim could begin afresh without the burden of the past affecting their home.
Amendment 51 would ensure that, if a victim was not at risk of losing their home, the decision would not be left solely to the landlord, because unscrupulous landlords could use the action as an opportunity to get all tenants out of a property, and there is no duty on them to provide alternative accommodation. The amendment would add a requirement for the victim to be offered a tenancy.
I move amendment 49.
I will speak to Rhoda Grant’s amendments 49 to 51. One of the intentions of amendment 49 is to address the issue of coerced debt—cases in which rent arrears have been accrued as a result of financial abuse and coercive control. I recognise the importance of providing domestic abuse victims with tenancy support, including through payment of rent and managing rent arrears that were accrued prior to the transfer of a tenancy and the end of a perpetrator’s interest in it.
The planned guidance to support social landlords to use the provisions in section 18 will include details of the steps that landlords should take to support victims who are left with rent arrears as a result of their partner’s actions or who are unable to meet rent payments because of the perpetrator’s economic abuse. The Scottish Government also intends to amend the pre-action requirements that are set out in the Housing (Scotland) Act 2001 to require that social landlords recognise the effect and impact that financial coercion can have on rent arrears, and to ensure that domestic abuse must be fully considered before any court action for rent arrears can be raised.
Amendment 49 would mean that landlords would not have the option of raising eviction proceedings against a tenant in any circumstances for a period of six months following a court action to transfer a tenancy and end a perpetrator’s interest in it. Landlords need to be able to raise eviction proceedings at any time—for example, to deal with serious cases of criminal activity or antisocial behaviour that has an impact on surrounding neighbours. They also need to have legal remedies for dealing with significant rent arrears when a tenant does not take up offers of support and refuses to engage with the landlord. Agreement to amendment 49 would impact a landlord’s right to access those remedies and could adversely impact the safety of other tenants.
Amendment 50 would create a new tenancy from the date on which an order was made. If a perpetrator’s interest in a joint tenancy was ended by a court order, the remaining joint tenant would continue as a sole tenant under the existing tenancy agreement. As such, there would be no new tenancy agreement to enter into, and entering into a new tenancy agreement would not be required. In cases in which a sole tenant perpetrator was evicted, the landlord would enter into a new tenancy agreement with the victim, who would become the sole tenant as part of that process. I hope that my observations are sufficient to give Rhoda Grant some reassurance about what will happen following the operation of the provision in the bill, and to persuade her that amendment 50 is not necessary or appropriate.
Amendment 51 proposes that, in cases in which the perpetrator is the sole tenant, an order that recovers possession must specify that a landlord offers the victim a tenancy agreement in respect of the house to which the eviction action relates. As drafted, there is no specific legal requirement for a landlord to offer the tenancy to the victim when the existing tenancy is a sole tenancy, although the ground of recovery requires that the landlord intends to do so. Creating a legal requirement for the landlord to offer a tenancy to the victim would provide further certainty for victims and strengthen their protection in such cases.
However, although I support the principle of amendment 51, there are some technical issues that need to be worked through. On the basis of an agreement in principle, I ask Rhoda Grant not to move amendment 51, and I will work with her between stage 2 and stage 3 to develop a suitable amendment that will deliver the policy intention.
I thank Rhoda Grant for lodging the amendments and ask her not to press them. If she presses amendments 49 and 50, I invite members to reject them. I commit to working with her before stage 3 to produce a suitable amendment on the issues that amendment 51 raises. If that amendment is pressed, I ask members to reject it.
I welcome the cabinet secretary’s offer to work with him on the issues that amendment 51 raises and see whether we can put in place further protection. I will reflect on what he said about amendments 49 and 50. I will not press them now, but I reserve my right to bring back those amendments or versions of them at stage 3.
Amendment 49, by agreement, withdrawn.
Amendments 50 and 51 not moved.
Amendment 52, in the name of Rhoda Grant, is in a group on its own.
Amendment 52 would remove the time period for a victim to have lived at an address before they have the right to protection in their home. Six months is an arbitrary figure. If someone is being abused in their normal and sole residence, they should not face the loss of their home because a protection order is put in place. The bill’s very aim is to protect people from homelessness. The amendment would provide such protection.
I move amendment 52.
The policy objective of the transfer of tenancy in social housing is to support and enable victims to remain in the family home and prevent the injustice of victims and their families having to leave their home, their belongings and their community to seek safety, while the perpetrator remains undisturbed in the family home.
As Rhoda Grant said, amendment 52 would remove the requirement for the parties to have lived together for a cumulative period of at least six months in the 12 months before eviction action was taken. The concern is that, if that threshold was eliminated, action could be taken to evict the tenant when the two parties had lived together for any period in the 12 months before the action was initiated—for example, if the victim had lived under the tenancy for only a week or a few days or even just overnight. In such cases, the property would clearly not be the victim’s family home.
It is appropriate to have a minimum period for the two parties to have lived together. Our approach to setting a minimum threshold of a cumulative six months recognises that abusive relationships can be volatile and unsettled—victims can flee and return on many occasions before finally deciding to end a relationship permanently.
If amendment 52 were agreed to, court action could be taken to end a tenancy and evict a tenant when the property was clearly not the victim’s family home. We would have concerns about the proportionality of using the provisions in such circumstances.
For those reasons, I urge Rhoda Grant to seek to withdraw amendment 52. If the amendment is pressed, I ask the committee to reject it.
I am disappointed by what the cabinet secretary said. It is clear that, if somebody has to live in the home for six months to get protection, we will fail to protect quite a large number of people. Domestic abuse might not become apparent in years to come; after three months of cohabiting, it might become apparent that domestic abuse is an issue. If we only protect people who have lived together for longer than six months, the bill will not be doing the right thing. Therefore, I intend to press amendment 52.
The question is, that amendment 52 be agreed to. Are we agreed?
There will be a division.
Grant, Rhoda (Highlands and Islands) (Lab)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Finnie, John (Highlands and Islands) (Green)
Kerr, Liam (North East Scotland) (Con)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Robison, Shona (Dundee City East) (SNP)
Tomkins, Adam (Glasgow) (Con)
The result of the division is: For 1, Against 8, Abstentions 0.
Amendment 52 disagreed to.
Section 18 agreed to.
After section 18
The final group of amendments to be debated is on Scottish secure tenancies in cases involving abusive behaviour. Amendment 53, in the name of Rhoda Grant, is the only amendment in the group.
It is important that the victim has a right to stay in their home, if that is what they wish, but it is also important that they have the right to move, whether due to emotional, safety or economic concerns. Amendment 53 aims to make a separate provision in relation to victims who do not want to stay in their home that aims to ensure that they are rehoused without having to be made homeless. The obligation should fall on all registered social landlords and housing associations, and in respect of council tenancies.
The bill aims to keep victims in their own homes, but in certain situations that could be unsafe. Provision should be made to rehouse them in suitable accommodation, although only if that is requested by the victim.
I move amendment 53.
As no other member has indicated that they wish to speak on amendment 53, I invite the cabinet secretary to respond.
I note from the briefing that the committee received from Scottish Women’s Aid that they do not support amendment 53. I will articulate similar concerns to those that are outlined in the briefing.
The primary purpose of section 18 is to enable social landlords to transfer the tenancy to a victim of domestic abuse, and to support and enable them to live in the family home. Amendment 53 broadens section 18 into new territory and would place a legal obligation on a social landlord to rehouse a victim in a different tenancy at their request, where they do not wish the landlord to pursue a transfer of tenancy of the family home on their behalf. Legal safeguards are already in place to support the rehousing of domestic abuse victims, with social landlords having to give reasonable preference to certain categories of applicants in allocating tenancies, including those who are homeless or threatened with homelessness.
Social landlords routinely work with victims and other support agencies in determining the best housing option to provide safety and stability in the long term; that includes the question whether staying in the family home or moving to another tenancy elsewhere would be the best option. Where a move to a different tenancy is considered to be the best option, that could mean that the victim would be housed by a different social landlord, to ensure that victims, for their safety and security, are not housed in the vicinity of the perpetrator.
Putting a legal requirement on a social landlord to provide a different tenancy could be challenging for landlords, and particularly for smaller community-based housing associations. The availability and location of their housing could put victims in further danger if such organisations are required to offer them a different tenancy within their own housing stock. For that reason, I ask Rhoda Grant to withdraw amendment 53. If the amendment is pressed, I ask the committee to reject it.12:00
I am disappointed with the cabinet secretary’s response. The amendment concerns victims of domestic abuse who wish to move out of the scope of homelessness legislation. The cabinet secretary stressed that there is homelessness legislation that covers people who are homeless and people who are threatened with homelessness, but that could lead to a situation where a victim of domestic abuse is living in temporary homeless accommodation with their family, rather than being rehoused in suitable accommodation.
I will not press amendment 53 today, but at stage 3 I might lodge a similar amendment that offers protection to victims of domestic abuse such that they do not end up in temporary homeless accommodation.
Amendment 53, by agreement, withdrawn.
Sections 19 to 21 agreed to.
Long title agreed to.
That ends stage 2 consideration of the bill. The bill will now be reprinted as amended at stage 2, and that version will be published tomorrow morning. The Parliament has not yet determined when stage 3 will be held, but members will be informed of the date in due course, and of the deadline for lodging stage 3 amendments. In the meantime, stage 3 amendments can be lodged with the clerks in the legislation team.
23 February 2021