Domestic Abuse (Protection) (Scotland) Bill

The Convener

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.

The Convener

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?

Patrick Down

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.

The Convener

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?

Patrick Down

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?

Patrick Down

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.

John Finnie

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?

Patrick Down

Yes. That is our understanding of the test. I will give Katie McGarvey an opportunity to come in.

Katherine McGarvey

Yes, that is correct. The orders are civil orders and will use the civil standard of proof, which is the balance of probabilities.

John Finnie

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?

Patrick Down

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.

John Finnie

Thank you. I still have questions about that, as I think that there will be operational challenges connected with it.

The Convener

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?

Patrick Down

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.

Katherine McGarvey

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 Convener

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 would 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?

Patrick Down

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.

Fulton MacGregor

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.

Patrick Down

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.

Fulton MacGregor

That was really helpful. Thank you.

The Convener

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?

Patrick Down

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.

Patrick Down

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.

Shona Robison

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?

Patrick Down

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.

The Convener

I will go back to Rona Mackay to pick up questions on protection orders.

Rona Mackay

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?

Patrick Down

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.

Rona Mackay

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?

Patrick Down

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—

Rona Mackay

I want to clarify that. Would the bill cover that?

Patrick Down

Yes—it would cover stalking by an ex-partner, because it is a form of abuse.

Rona Mackay

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?

Patrick Down

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—

Rona Mackay

You can get back to us in writing on that.

Patrick Down

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.

Rona Mackay

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?

Patrick Down

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?

Patrick Down

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.

The Convener

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.

Patrick Down

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.

The Convener

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?

Patrick Down

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.

Annabelle Ewing

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?

Patrick Down

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.

Katherine McGarvey

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.

Annabelle Ewing

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?

Patrick Down

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.

Annabelle Ewing

Just for clarity, would the child protection angle deal with a perpetrator who was aged between 16 and 18?

Patrick Down

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.

Patrick Down

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.

Rhoda Grant

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?

Patrick Down

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.

Rhoda Grant

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?

Patrick Down

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.

Rhoda Grant

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?

Patrick Down

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.

Rhoda Grant

I am just waiting to see whether Katie McGarvey will contradict you.

Katherine McGarvey

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.

Rhoda Grant

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?

Patrick Down

We may have to come back to you in writing on that point.

Rhoda Grant

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?

Patrick Down

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?

Rhoda Grant

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.

The Convener

Liam Kerr has questions on the criminal offences.

Liam Kerr

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”?

Patrick Down

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.

Liam Kerr

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?

Patrick Down

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.

Liam Kerr

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?

Patrick Down

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.

The Convener

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.

John Finnie

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?

Patrick Down

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.

John Finnie

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.

Patrick Down

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?

John Finnie

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.

Patrick Down

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.

John Finnie

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)

[Inaudible.]

John Finnie

I am sorry, Ms Cook, but I cannot hear you.

Anne Cook

Sorry. Is that better?

John Finnie

Yes. Thank you.

Anne Cook

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.

John Finnie

Was the rationale behind that not to disenfranchise 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.

Anne Cook

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.

John Finnie

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.

Anne Cook

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.

John Finnie

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.

Anne Cook

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.

John Finnie

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?

Anne Cook

I will do that.

John Finnie

Thank you.

The Convener

Liam Kerr has a supplementary question, and so do I.

Liam Kerr

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?

Patrick Down

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.

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.

The Convener

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.

Patrick Down

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.

The Convener

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?

Patrick Down

At this point, I would like to bring in my colleague, Katie McGarvey.

Katherine 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.

The Convener

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.

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.

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.

Motion moved,

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.

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.

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 was 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 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”

who

“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”

and that

“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.

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.

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.

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”

is required

“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.

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.

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.

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.

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”.

and

“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.

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.

Liam Kerr

Where does the member stand on giving consideration to allowing third-party organisations such as victims groups to file applications for DAPOs?

Shona Robison

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.

Rhoda Grant

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.

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 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.

Humza Yousaf

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.

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.

The Convener

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 Convener

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.

Humza Yousaf

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.

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.

The Convener

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.

Humza Yousaf

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 Convener

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.

The Convener

Oh, you are there. Would you like to move—

Rachael Hamilton

Yes. Would you like me to speak to the amendment? Convener, can you hear me?

The Convener

Yes.

Rachael Hamilton

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.

Humza Yousaf

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”

and

“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.

The Convener

I ask Rachael Hamilton to wind up, and to press or withdraw amendment 28.

Rachael Hamilton

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 Convener

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.

Humza Yousaf

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.

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.

The Convener

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.

Humza Yousaf

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 Convener

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.

Rhoda Grant

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.

Humza Yousaf

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.

Rhoda Grant

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.

The Convener

We move to the next group of amendments. Amendment 6, in the name of the cabinet secretary, is the only amendment in the group.

Humza Yousaf

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.

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

The Convener

Amendment 7, in the name of the cabinet secretary, is grouped with amendments 8, 9, 23 and 24.

Humza Yousaf

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.

The Convener

Amendment 10, in the name of Rhoda Grant, is in a group on its own.

Rhoda Grant

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.

Humza Yousaf

I thank Rhoda Grant for lodging amendment 10, which would add a 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.

Rhoda Grant

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

The Convener

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.

The Convener

No other member has indicated that they wish to speak in the debate, so I call the cabinet secretary.

Humza Yousaf

[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.

The Convener

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.

Rhoda Grant

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.

The Convener

I invite Liam Kerr to wind up and say whether he wishes to press or withdraw amendment 29.

Liam Kerr

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.

The Convener

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.

Humza Yousaf

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.

John Finnie

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?

Humza Yousaf

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.

The Convener

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.

The Convener

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.

Humza Yousaf

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”

where

“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 creates a duty for the sheriff to provide an opportunity for the child to give their views in

“(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.

Rhoda Grant

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.

John Finnie

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.

The Convener

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.

Humza Yousaf

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.

Rhoda Grant

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 Convener

The question is, that amendment 18A be agreed to. Are we agreed?

Members No.

The Convener

There will be a division.

For

Grant, Rhoda (Highlands and Islands) (Lab)

Against

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 Convener

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 Convener

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.

Rhoda Grant

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.

The Convener

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.

Humza Yousaf

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.

The Convener

I invite Rhoda Grant to wind up and say whether she will press or withdraw amendment 34.

Rhoda Grant

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 Convener

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.

Humza Yousaf

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.

The Convener

No member has indicated that they wish to speak on the group. I invite the cabinet secretary to wind up, if he wishes.

Humza Yousaf

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 Convener

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.

Liam Kerr

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.

Humza Yousaf

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.

Liam Kerr

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 Convener

The next group concerns termination of Scottish secure tenancies. Amendment 49, in the name of Rhoda Grant, is grouped with amendments 50 and 51.

Rhoda Grant

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.

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.

Humza Yousaf

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.

Rhoda Grant

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.

The Convener

Amendment 52, in the name of Rhoda Grant, is in a group on its own.

Rhoda Grant

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.

Humza Yousaf

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.

Rhoda Grant

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 Convener

The question is, that amendment 52 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Grant, Rhoda (Highlands and Islands) (Lab)

Against

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 Convener

The result of the division is: For 1, Against 8, Abstentions 0.

Amendment 52 disagreed to.

Section 18 agreed to.

After section 18

The Convener

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.

Rhoda Grant

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.

The Convener

As no other member has indicated that they wish to speak on amendment 53, I invite the cabinet secretary to respond.

Humza Yousaf

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.

Rhoda Grant

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.

The Convener

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.

The Presiding Officer (Ken Macintosh)

The next item of business is stage 3 proceedings on the Domestic Abuse (Protection) (Scotland) Bill. Members should have before them the bill as amended at stage 2, the marshalled list of amendments and the groupings of amendments. As usual, the division bell will sound and proceedings will be suspended for five minutes for the first vote of the afternoon. The period of voting for each division will be one minute. Any member who wishes to speak in a debate on any group should press their request-to-speak button as soon as I call that group.

Members should now refer to the marshalled list.

Section 1—Persons to whom domestic abuse protection notices and orders may relate

The Presiding Officer

Group 1 is on domestic abuse protection orders and notices: places where person A and person B cohabit. Amendment 1, in the name of the cabinet secretary, is grouped with amendments 2 to 6.

The Cabinet Secretary for Justice (Humza Yousaf)

At stage 2, amendments were made to the bill to introduce a requirement that, for the police to make a domestic abuse protection notice—DAPN—or the court to make a domestic abuse protection order—DAPO—person A and person B must live together some or all of the time. Amendments 1 to 6 address concerns that were raised by the police about the potential width of the power to make DAPNs and DAPOs by explicitly restricting the use of the power to cases in which a suspected perpetrator of domestic abuse and the person at risk of domestic abuse live together.

That approach was adopted because it is in such cases that a person at risk is most likely to benefit from the breathing space that a DAPN or a DAPO provides to take the longer-term steps that are necessary to address their safety and their housing situation without interference from an abusive partner or, indeed, an abusive ex-partner.

We consider that a possible unintended consequence of those amendments to section 1 is the risk that it could be read as requiring person A to live with person B in person B’s home. That is not our policy intent. Our policy intent is that it should be possible for a DAPN and a DAPO to be made regardless of where person A and person B live together. For example, if person B lives with person A in person A’s only home for three days a week and in their own home for the rest of the week, but person A has keys and regular access to person B’s home, it might be necessary to make a DAPN or a DAPO that requires person A, the suspected perpetrator, to surrender the keys to the home of person B, the person at risk, and prohibits them from entering or coming within a certain distance of that home. Amendment 1 makes it clear that a DAPN or a DAPO can be made if person A and person B live together in any place where either of them lives to any extent.

Amendments 2 to 6 are intended to ensure consistency in the drafting to avoid any possible confusion about which of the places where person B lives is the home of person B, when the focus should be on whether it is necessary to make provision in respect of any of the places where person B lives. I know that that is somewhat complicated, particularly if people have not been following the bill, but I hope that that clarifies the matter. The amendments make it clear that, in a case where person B—the person who is potentially at risk—lives in more than one place, the provisions in question can be made in respect of any or more than one of those places, provided that such provision is necessary.

I should make it clear that provisions can be made in a DAPN only if the senior constable who makes the notice considers it necessary for the purpose of protecting the person at risk from such abusive behaviour by the suspected perpetrator. Therefore, where the person at risk sometimes lives at their own home and sometimes at the home of their partner or ex-partner, I expect that it would not normally be necessary to use the power to prohibit their partner or ex-partner from entering both their own home and their partner or ex-partner’s home.

I move amendment 1.

Amendment 1 agreed to.

Section 5—Content and effect of notice

Amendments 2 to 6 moved—[Humza Yousaf]—and agreed to.

Section 8—Making of domestic abuse protection order

The Presiding Officer

Group 2 is on domestic abuse protection orders: consent and matters to be taken into account by sheriff. Amendment 9, in the name of the cabinet secretary, is grouped with amendments 10 to 19.

Humza Yousaf

If you will forgive me, Presiding Officer, I will take a bit of time to explain how we have arrived at the position that we have. With your indulgence, given the nature of how we have arrived here, I will be happy to take interventions if members wish to intervene.

At stage 2, amendments were introduced that required the consent of a person at risk before a domestic abuse protection order could be made. As I said at stage 2, it was a finely balanced decision for the Scottish Government to lodge those amendments. After further reflection, I have lodged amendments 9 to 11 to remove the requirement for consent from the person at risk before a full DAPO can be imposed and replace it with a provision that requires the court to take into account any view of a person at risk as to whether they wish an order to be made when assessing whether to make a DAPO. However, making a DAPO will not—this is crucial—require consent.

Amendments 12 to 14 provide that, where person B does not wish an order to be made, the sheriff must take that into account and any of the reasons for that view of which the sheriff is aware. However, amendment 11 makes it clear that a lack of consent would not stop a DAPO from being imposed if the court is satisfied that that should happen, having applied the relevant tests in section 8.

Amendments 15 to 19 amend sections 12 to 14 to ensure that a consistent approach is taken where an application for variation, extension or discharge of a DAPO is made to a court. The overall effect of those amendments is that the court, in assessing an application for a DAPO, is required to take into account the views of person B, the person at risk, and the reasons for those views.

The need for consent is not a requirement, however. In other words, withholding consent is not in effect a veto on a DAPO being imposed. Those views could be provided to the court either directly or indirectly, for example through a support agency. In considering whether to make a DAPO in a case where person B does not support the making of the order, the sheriff could take account of the extent to which person B’s reasons for not supporting the making of the order are likely to be a consequence of the long-term effects of the abuse, especially the effects that coercive and controlling behaviour can have on the victim of domestic abuse.

I wish briefly to explain why I have adjusted my views on this very sensitive area of the bill. In many cases, it may be that the views offered by person B inform a decision that no DAPO is to be imposed, but I now consider that that must be for the court to determine on a case-by-case basis. Having reflected on the matter very carefully ahead of stage 3, I believe that ensuring discretion for the court is the only way in which the fundamental purpose of the scheme of DAPOs can be delivered in each and every relevant case, which will enable the state to meet its responsibility to protect people at risk.

The amendments that I lodged at stage 2 were informed by discussions with Scottish Women’s Aid, which reiterated its view—and it has reiterated it again in a briefing sent to MSPs—that it is important to ensure that the process for making a DAPO respects person B’s autonomy and their right to make their own decisions about their safety. Furthermore, the Scottish Government has had practical concerns, in that it is unclear how effective a DAPO could be if person B did not support it being made.

The question was and remains how far we want the bill to go in this area. As I said when I was speaking at stage 2, I have always considered the arguments for and against providing for an absolute requirement for consent to be very finely balanced. Although we remain of the view that one of the benefits of the system involving the DAPO is that it enables people who are experiencing domestic abuse to become more empowered, we have concluded that an absolute requirement for consent, leaving no discretion whatsoever to the court, would unduly curtail the ability and indeed the obligations of the state to fulfil its responsibility to protect those at risk of domestic abuse.

In reaching that view, I have considered the European convention on human rights, which, crucially, imposes a positive obligation on the state to protect individuals from each other. The state has a positive obligation to take appropriate steps to protect vulnerable people affected by domestic abuse—which includes women and children—from threats that pose a risk to their lives, to their right to be free from inhuman or degrading treatment or to their physical integrity. Significantly, for the purposes of the present issue, the European Court of Human Rights has specifically held that states need to put in place legal regimes that permit proceedings to be brought, even where allegations have been withdrawn.

It is important to remember that in order to make a DAPO, the sheriff will have to have been satisfied of the tests in the bill, which are that, first, person A, the suspected perpetrator, has engaged in behaviour that is abusive of person B, the person at risk; secondly, there is an immediate or imminent risk of person A engaging in further abusive behaviour towards person B; and, thirdly, it is therefore necessary to make the order for the purposes of protecting person B from the abusive behaviour of person A.

Liam Kerr (North East Scotland) (Con)

I am grateful for the articulation of the point, which I am following with interest.

I am slightly struggling with one thing. The cabinet secretary amended in the requirement for consent at stage 2; he is now amending out that requirement. According to the letter of 15 March, that is as a result of legal advice saying that the provisions must comply with the ECHR. I get that, but what has changed between stage 2 and stage 3? Had that legal advice not been given at stage 2, or has the legal advice changed in some way?

Humza Yousaf

As the member will be aware, I cannot directly reference legal advice, and I was careful in my letter to him and the committee around that. It was simply a matter of further reflection. We had a discussion with Scottish Women’s Aid at or before stage 2, and we were persuaded by its concerns around consent and empowerment, as the committee probably was, too.

However, on further reflection—as Liam Kerr knows, the bill has, through no fault of anyone in the chamber, been expedited to a truncated timetable—we felt that we had gone too far. I will give an important example. We could have a situation in which the sheriff believes that all the tests have been met and person B is at imminent risk of danger from a suspected perpetrator, and that it is therefore necessary to grant a DAPO. However, regardless of whether the sheriff is convinced that there is an immediate or imminent risk, they cannot impose a DAPO if consent is withheld. That is my concern. If a perpetrator of abuse knows that an effective veto on a full DAPO being applied could be exercised by the person who is at risk, they may, through coercive control, attempt to engineer such an outcome.

All that I can say to Liam Kerr is that, on further reflection, between stages 2 and 3, it became apparent to us that the obligation on the state to protect a person who is at risk could conflict with the requirement for the person’s consent, which meant we got the balance wrong at stage 2, and therefore had to rectify that at stage 3 through these amendments. We have considered not just the European convention on human rights, but the Istanbul convention, in particular article 52. We consider that the policy behind the amendments that I have lodged at stage 3 reflects the fundamental purpose of the DAPO scheme, which is based on the Istanbul convention. Article 52 contains no requirements in respect of consent, but focuses entirely on the state’s ability to protect those who are at risk.

I will conclude on this point—forgive me, Presiding Officer, for taking my time with this group, because it is important. The question is how the law should balance the autonomy of a person who is at risk of domestic abuse to make their own decisions with the need to provide protection for vulnerable people who are at risk of domestic abuse, especially in a case in which that very autonomy is compromised by coercive control and perhaps years of abuse. There is a fine balance to be struck. I consider that my amendments in this group strike the appropriate balance and, importantly, take into account the state’s duties and obligations to protect people who are at risk of harm.

I move amendment 9.

John Finnie (Highlands and Islands) (Green)

At the outset, I declare my membership of the cross-party group on men’s violence against women and children. That is relevant, because I feel a measure of discomfort with what I am about to say. It is the only time that I can recall that I will take a different point of view from that of Scottish Women’s Aid, for which I have the highest regard. I will try not to repeat the detailed points that the cabinet secretary made, but—with your indulgence, Presiding Officer—I will explain why that is the case. I most certainly want women to be in control. There has been an on-going debate about the issue of consent. Scottish Women’s Aid has said:

“The problem with issuing orders without the woman’s consent is that non-consensual intervention further disempowers”.

I accept that point—I absolutely get that.

Much of what I was going to say was detailed in the cabinet secretary’s letter of 15 March to the Justice Committee. It concerns the issues around the threshold—the cabinet secretary referred it to as a “test”—that would have to be overcome to secure the issuing of a DAPO. I will not repeat the details, but the sheriff would have to be satisfied that the threshold has been reached.

In recent years, the Parliament has led the world in legislating on coercive and controlling behaviour. It is an invidious way in which women are manipulated, and that is often at the back of my mind when we discuss these matters. There are women who are not quite at the point of reaching out for help, but who are trusting others, whoever they might be. In his letter to the committee, the cabinet secretary used the phrase “Our considered view”. I have reflected in the same way—I emphasise again that I note everything that Scottish Women’s Aid has said in its briefing to members, and that the empowerment of women is important. It is a fine principle, which ordinarily I would unquestioningly accept. Of course, the legislation is not exclusively about women, but the victims of domestic violence are, overwhelmingly, women.

If the sheriff was satisfied that the high threshold to grant a DAPO was reached, but the victim’s consent was not forthcoming because of coercive and controlling behaviour, which can sometimes take a number of years to emerge, and that victim was subsequently harmed, that would trouble me. If one person is harmed, it is one too many.

I continue to support the principle of empowerment, but I have changed my position in this context. The Scottish Government has set out its rationale; it is for the Government to explain the state’s obligations. My concern is that if one victim is created as a result of the existing arrangements, that will be one too many. I support the amendments in this group.

Rhoda Grant (Highlands and Islands) (Lab)

I will not repeat what others said. We need to note that the time of a relationship breakdown—and, in a way, domestic abuse protection orders and notices will bring forward the relationship breakdown by separating the couple—is the most dangerous time for a victim of domestic abuse. It is the time when most murders happen. We must take every step that we can to protect victims of domestic abuse. We must also remember that victims have had their agency taken away for many years and we should not double down on removing their agency.

That said, I think that there are safeguards in the bill to allow what is proposed without destroying the victim’s agency. I seek some reassurance from the cabinet secretary. Can he make it clear that sheriffs will receive training? Not all sheriffs understand domestic abuse well, and if they are to carry out the work they really need a deep understanding so that they can take the views of the victim without further undermining that person. Training needs to be in place to ensure that, when action is taken, the victim feels that they have been listened to and understood and can understand why the sheriff is taking action that is contrary to their view.

A victim is open to coercion at such a time—of course they are—and if the perpetrator of the abuse knows what is happening they might stop the domestic abuse protection order process, which could leave the victim in a more vulnerable position. However, we have to ensure that the victim’s agency is not destroyed. I seek reassurance in that regard from the cabinet secretary.

Humza Yousaf

I thank John Finnie and Rhoda Grant for making exceptionally important points. I hope that I can provide the reassurance that they seek.

I associate myself entirely with John Finnie’s remarks. I genuinely feel uncomfortable about taking a different view from Scottish Women’s Aid on any issue and particularly on issues to do with domestic abuse. I spoke to Marsha Scott, the chief executive of Scottish Women’s Aid, this morning, and we agreed to disagree, to an extent. I think that her feeling—and she could put this much better than I can in paraphrasing what she said—is that she is not quite as convinced as we are about the obligations on the state and how we get the balance right in that regard. However, I think that she recognises that if that is the advice that we have been given, we have had no choice but to lodge the amendments in this group.

I should say to John Finnie that I, as a Government minister, must ensure that any bill that I introduce is compatible with the ECHR, hence my lodging the amendments. Indeed, the Parliament has a similar obligation.

Rhoda Grant made her points well. On her first point, I reassure her that the bill makes it very clear that sheriffs must take into account the views of the person who is at risk—I set that out in detail in my earlier remarks. She made a good point about judicial training. That is not within my gift; judicial training is a matter for the Lord President, who exercises that function independently. However, if the bill is passed at stage 3, as I hope that it will be, I will be happy to discuss the matter with the Lord President. We are going into the pre-election period, so I will ask my officials to do that, and I hope that, after the election, whoever is justice secretary, depending on the results, will follow the matter up with sheriffs.

John Finnie and Rhoda Grant made excellent points and I am pleased that, on balance, everybody understands why we have got to this position, which is the right position to get to so that the state can fulfil its obligation of protecting people who are at risk of harm.

Amendment 9 agreed to.

Amendments 10 to 14 moved—[Humza Yousaf]—and agreed to.

Section 12—Extension, variation or discharge of order

Amendments 15 to 17 moved—[Humza Yousaf]—and agreed to.

Section 13—Extension, variation or discharge of order: further provision

Amendment 18 moved—[Humza Yousaf]—and agreed to.

Section 14—Interim extension or variation of order

Amendment 19 moved—[Humza Yousaf]—and agreed to.

After section 16

The Presiding Officer

Group 3 is on domestic abuse protection orders and the power to specify additional applicants. Amendment 20, in the name of Liam Kerr, is the only amendment in the group.

Liam Kerr

My amendment 20 provides the Scottish ministers with a power to designate other bodies as being able to apply to a court for a domestic abuse protection order. That was something I initially sought to introduce at stage 2. Although support for the principle was indicated by both the cabinet secretary and Rhoda Grant, who was then justice spokesperson for Labour, I was persuaded by the cabinet secretary that such a regulation-making power should be future proofed.

It was also pointed out that, given the importance of the issues that have to be considered, it would be better for the procedure to be affirmative rather than negative, to give the Parliament a greater chance to scrutinise and be reassured that any bodies that were being added were fully ready to take that responsibility for training, resources and all the other matters that have been discussed. I found that argument persuasive and withdrew my amendments on that point to work with the cabinet secretary and his team to produce something better. We did so and I believe that that has been achieved, and I am grateful to the cabinet secretary and his team.

At present, the bill empowers the police but no other agency or organisation to apply for a DAPO. During the committee sessions, the idea of extending that power was raised, in particular by Scottish Women’s Aid and Police Scotland. The amendment specifically provides that local authorities, local authority landlords and registered social landlords could be empowered to apply for DAPOs. It was suggested at stage 1 that that would be appropriate.

Subsection (2)(d) of the section that the amendment introduces provides that the Scottish ministers can use the power to provide

“any other person who the Scottish Ministers consider appropriate”

with the power to apply to a court for a DAPO.

Subsection (3) introduces a requirement to consult those who it is proposed will be given that power prior to making the regulations. That is intended to ensure that those organisations that it is proposed are given the power have an opportunity to provide views prior to the making of the regulations.

Subsection (5) ensures that regulations made under that power will be subject to the affirmative procedure.

In short, that was what I sought to achieve at stage 2 and what I think can properly be achieved now. I therefore commend my amendment to the Parliament.

I move amendment 20.

Humza Yousaf

I will be brief, Presiding Officer. I thank Liam Kerr for initially lodging the amendment at stage 2 and then agreeing to withdraw it and work with the Government ahead of stage 3. I absolutely support what he is trying to do and he has articulated it very well and gone into the detail of the amendment, so I will not rehearse that.

Amendment 20 appropriately future proofs the legislation to allow other persons to be added to the list of those who can apply for a DAPO where appropriate to do so. I am also pleased that the level of scrutiny has been strengthened, requiring the affirmative procedure. I may be the first Government minister in history to argue for more scrutiny of an order than the Opposition has asked for, but it is the right thing to do. That recognises the significance of the issues that have to be considered in making use of such a power and will give the Parliament a much greater chance to scrutinise and be reassured that any person whom the Scottish ministers may seek to give the ability to apply for a DAPO on behalf of a person at risk are suitably equipped and trained for such an important responsibility. I thank Liam Kerr for the constructive manner in which he has engaged with the Government. We will support amendment 20.

The Presiding Officer

Does Liam Kerr wish to add anything by way of winding up?

Liam Kerr

I have nothing to add.

Amendment 20 agreed to.

The Presiding Officer

Group 4 is on domestic abuse protection orders and notices and their relationship with orders regulating contact or residence. Amendment 21, in the name of Rhoda Grant, is the only amendment in the group.

Rhoda Grant

Domestic abuse protection notices and orders are designed as emergency interventions to protect people from domestic abuse, and we must ensure that that purpose cannot be undermined.

A number of organisations expressed concerns that the intention that domestic abuse protection notices and orders should take precedence over all other orders was not expressed in the bill and felt that that should be the case. That is especially the case with notices that are not required to be heard by a court.

Although I believe that we should explicitly say in the bill that all orders tying person A to their home are superseded by a domestic abuse protection notice or order, the cabinet secretary did not believe that that was required. However, he conceded that orders regarding children should be included in the bill. Therefore, paragraph (a) of the section that the amendment introduces provides that nothing in a court order regulating contact with, or the residence of, a child limits the prohibitions or requirements that can be made in a domestic abuse protection notice or order.

Paragraph (b) provides that it is not a defence for breaching the domestic abuse protection notice or order that person A was doing something that they were entitled to do under another court order.

It is clear that, in order to provide the protection that is required, domestic abuse protection orders and notices must take precedence over any other orders tying person A to the home.

I move amendment 21.

Humza Yousaf

At stage 2, Rhoda Grant lodged an amendment intended to make clear the provisions of a DAPN and that they must be complied with irrespective of any pre-existing court order that might contain a contrary provision. I was happy in principle for the bill to ensure that those who have a DAPN served on them are in no doubt whatsoever that the existence of, for example, a pre-existing child contact order does not mean that the DAPN could not make provisions preventing contact with that child. However, as Rhoda Grant has suggested, I indicated that I had some technical concerns around that amendment. I am pleased to say that I consider that amendment 21 very much addresses those concerns and makes it clear that the existence of a court order regulating contact with, or the residence of, a child does not limit the requirements or prohibitions that can be included in a DAPN or a DAPO.

For example, if a person who is subject to a DAPN or DAPO that prohibits them from contacting a child contacts that child, it would not be a defence that they were acting in accordance with an entitlement in a child contact order. I thank Rhoda Grant for the constructive way in which she has worked with the Government on the matter and I will support amendment 21.

Amendment 21 agreed to.

The Presiding Officer

Group 5 concerns reporting on the operation of part 1. Amendment 22, in the name of Liam Kerr, is the only amendment in the group.

Liam Kerr

Amendment 22 is about reporting on the operation of part 1 and introduces 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. Again, that was something that I brought forward at stage 2, as I was concerned at the lack of such a duty, particularly as there is such a duty under section 14 of the Domestic Abuse (Scotland) Act 2018. Further, Scottish Women’s Aid and the Law Society were generally in favour of such monitoring.

Again, the cabinet secretary indicated that he was sympathetic to the principle of information and data being available about the operation of new powers in the bill to help inform the Parliament and the Government when it comes to future policy. Of course, it will also help them to assess the effectiveness of the bill. However, again, the cabinet secretary suggested not moving the original amendment with a view to developing what I had proposed to make the provision as good as it could be and ensure that we capture both what is necessary and what is useful, and to ensure, of course, that the criminal justice agencies are capable of providing the data.

Therefore, amendment 22 provides for a reporting requirement for the DAPN and DAPO scheme. It requires information on the number of DAPNs, DAPOs and interim DAPOs made to be reported and for information to be reported about the number of extensions made to DAPOs. It also requires information to be reported on the number of prosecutions and convictions for offences for breach of a DAPN or a DAPO.

There is also the addition of a requirement to include

“information about the experience of persons who were, in respect of domestic abuse protection notices ... orders or interim ... orders, person B.”

All that will place a duty on the Scottish ministers to undertake work to establish the extent to which the system of DAPNs and DAPOs is effective in achieving its purpose of protecting persons who are at risk of domestic abuse.

Amendment 22 places the duty to report on the operation of the act during the first three years in which it is in effect.

Finally, MSPs will be interested to know that, in light of its interest in that matter, the amendment has been shared with Scottish Women’s Aid, which has indicated that it is content with it.

I move amendment 22.

Humza Yousaf

Again, I thank Liam Kerr for the constructive manner in which he has engaged with the Government. I think that we have the balance right between quantitative and qualitative data. It is important that we have that in the amendment and it is really important for us to be able to understand the qualitative experiences of victims of domestic abuse, so I think that the reporting mechanism, which has become more common in legislation in recent years, is to be welcomed. I welcome Liam Kerr’s amendment 22, which the Government will support.

Amendment 22 agreed to.

Section 18—Additional ground for ending tenant’s interest in house

The Presiding Officer

Group 6 is on guidance on certain matters connected with tenancy proceedings in cases involving domestic abuse.

Amendment 7, in the name of the cabinet secretary, is grouped with amendment 8. The cabinet secretary will move amendment 7 and speak to both amendments.

Humza Yousaf

Amendments 7 and 8 provide for the Scottish ministers to make guidance in relation to the changes that are introduced by section 18 of the bill, and to consult

“such persons as they consider appropriate”

in the development of that guidance. The amendments also place a duty on social landlords to have regard to any statutory guidance that is published by the Scottish ministers and the new power “for recovery of possession” or termination of a joint tenant’s interest in a Scottish secure tenancy, as set out in section 18 of the bill.

Amendment 7 amends an existing section of the Housing (Scotland) Act 2001 on statutory guidance, to expand its remit to include cases where the new tenancy repossession or termination grounds are used.

Amendment 8 separately provides for guidance in respect of the new provisions that the bill introduces as new section 14(5C) of the 2001 act, which provides that landlords must provide “advice and assistance” to the perpetrator and any

“qualifying occupier in relation to the finding of alternative accommodation”.

We lodged the amendments to support social landlords in using the provisions and we will develop statutory guidance in consultation with key stakeholders in advance of bringing the provisions at section 18 of the bill into force. The guidance will cover a wide range of issues and positive practical examples, such as the type and level of evidence that landlords should consider before deciding to use the provisions, dealing with matters such as rent arrears and the types of advice and assistance that must be provided to perpetrators.

Amendments 7 and 8 moved—[Humza Yousaf]—and agreed to.

The Presiding Officer

Group 7 is on the provision of tenancy following termination of tenancy—or of interest in tenancy—in cases involving domestic abuse. Amendment 23, in the name of Rhoda Grant, is grouped with amendment 24.

Rhoda Grant

In cases of domestic abuse, it is often the abuse survivor who has to flee their home and find alternative accommodation in a refuge or homeless accommodation. Often, the victim returns to their abuser because, although living in a refuge might provide safety, it is restrictive in space and freedoms, and homeless accommodation can be grim. That is especially the case if children are involved, because the survivor might feel that it is in their best interest to return home, due to their living conditions.

The bill endeavours to deal with that by trying to remove the abuser and allow the survivor to remain in their home. That raises issues with tenancies, whether they are joint tenancies or tenancies that are solely in the name of the abuser. My amendments seek, in different ways, to ensure that the survivor remains in the tenancy and becomes the legal tenant if that is their wish.

Amendment 23 would have the effect of the tenancy passing to the abuse survivor automatically, on the date that is contained in the eviction order that is issued by the court to end the tenancy of the abuser. That would ensure that the tenancy arrangement continued in the sole name of the survivor, regardless of whether they were a party to the original tenancy agreement.

Amendment 24 would allow for a new tenancy to be created in cases in which there are rent arrears, which would allow the survivor a fresh start, recognising that financial control is often part of domestic abuse. The amendment would allow 28 days for that to happen but stresses that it should happen as soon as practicable. The 28-day period might be required if the abuser has remained in the tenancy, and it might be the case that repairs and safety checks need to be carried out at the property before the survivor can safely take on occupancy.

Amendment 24 makes an exception to that duty in the very rare circumstances in which it is not possible or appropriate for the landlord to offer the tenancy to the survivor. For example, the landlord might be unable to locate the survivor, who may have gone off the radar because of being afraid of being tracked down by the abuser, or the survivor might be unsuitable for the tenancy for another reason. That could create a loophole, but, to avoid doing so, the amendment allows the Scottish ministers to issue guidance on what the exceptional circumstances might be.

The guidance must cover when a tenancy is deemed to be a continuation and when it should be a new tenancy in its own right. Where possible, a tenancy should be a continuation, but when there are rent arrears, those must be shared with the abuser, who cannot walk away and leave the survivor to deal with them. In that situation, it would be desirable to start a new tenancy.

The guidance must be clear that domestic abuse cases often involve antisocial behaviours, including rent arrears, drug or alcohol misuse and noise complaints. The guidance to landlords must ensure that they are aware of those issues and should not use them as a way of avoiding entering into a tenancy with the survivor. The survivor must be supported to continue the tenancy.

I move amendment 23.

Humza Yousaf

I thank Rhoda Grant for articulating her reasons for lodging amendments 23 and 24. I will speak about amendment 24 first, because we intend to support it. We do not intend to support amendment 23—I hope that my explanation will provide members with the reasons for that.

I thank Rhoda Grant for working closely with the Government on amendment 24. As she has said, amendment 24 places a legal requirement on social landlords to offer the tenancy of the family home to the victim within 28 days of the perpetrator being evicted on grounds of domestic abuse. The amendment does not go so far as to require the tenancy to take effect from a particular date. Rather, it provides landlords with the flexibility to deal with cases such as when the perpetrator has remained in the family home prior to eviction, or when the landlord has to carry out essential repairs or legal safety checks prior to the victim moving in. That will provide further assurance to victims that they will be offered the tenancy of the home when a perpetrator is evicted on grounds of domestic abuse.

Amendment 24 relieves landlords of the duty to offer the tenancy if there are exceptional circumstances in which that is not possible or appropriate. An example of that would be if the landlord were unable to locate the victim to make the offer of the tenancy to them. We anticipate that such cases would be very rare, but we have made provision for an exemption to the duty to make the offer so that it is not absolute.

The amendment also requires landlords to have regard to any guidance that is issued by the Scottish ministers about all those matters.

I understand that the intention behind amendment 23, in the case of a joint tenancy, is to create a new tenancy on the termination of the perpetrator’s interest in the property, with a view to preventing the victim from becoming solely responsible for any rent arrears that accrued during the joint tenancy with the perpetrator. All of us recognise the good intention that is being pursued, but the approach has key deficiencies and would have adverse unintended consequences.

First, the amendment does not provide for the creation of a new tenancy; rather, it states that the tenancy would pass in law to the victim, which means that the existing tenancy would pass to the sole tenant. Even if the amendment provided for a new tenancy, the landlord would still have the ability to pursue all or any former joint tenants for rent arrears, should they wish to do so. The amendment would not prevent that.

As for unintended consequences, Rhoda Grant’s amendment 23 would not work in all cases, because it does not take into account a situation in which there might be more than two joint tenants. In such a case, the amendment would have the unintended and unfortunate consequence of transferring the whole tenancy, and not just the abuser’s interest, to the victim of the abuse.

For example, two friends could live together as joint tenants, then one of them could form a relationship with a person who became a third joint tenant. If abuse was perpetrated, amendment 23 could remove a person’s legitimate tenancy rights, as the tenancy would transfer to the victim of the abuse. The tenancy interests of the friend of the victim of abuse would then be removed. I am sure that that is not what Rhoda Grant seeks, but that would be the amendment’s unintended consequence.

To achieve the aims that Rhoda Grant seeks, I note that the primary aspects of the legislative changes that we are introducing are to ensure tenancy sustainability and to help landlords to provide on-going support to victims of domestic abuse by proactively pursuing tenancy transfers to allow a victim to remain in their family home and by providing any support and assistance that is required, which includes managing rent arrears. As part of that, landlords will need to follow existing pre-action requirements, which the Government intends to amend to make it a legal duty to take into account the effect that domestic abuse has on the accrual of rent arrears.

For all those reasons, I cannot support amendment 23 and I urge Rhoda Grant to withdraw it. If she does not withdraw it, I urge members to reject it. I support amendment 24 and invite members to do so, too.

Rhoda Grant

Amendments 23 and 24 would work together to provide a range of options for victims. It is important for a tenancy to continue when a victim desires that, because it gives them security, especially in financial matters, to show that they have lived at an address for a length of time.

The two options would allow for the situations that the cabinet secretary talked about and would work well jointly. Amendment 23 would remove the perpetrator’s interest and transfer it to the victim without forming a new tenancy. That is important.

I intend to press amendments 23 and 24. Together, they would provide a safety net. Regardless of the situation, they would provide the victim with options that they could work through with their landlord.

The Presiding Officer

The question is, that amendment 23 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division. As this is the first division of the afternoon, we will have a five-minute suspension to call members to the chamber and allow members to access the voting app.

The Presiding Officer

We will go straight to the vote on amendment 23, in the name of Rhoda Grant. Members may cast their votes now.

The vote is now closed. Members should please let me know if they were not able to vote.

Graham Simpson (Central Scotland) (Con)

On a point of order, Presiding Officer. My screen, which I have just refreshed, did not show a vote. I would have voted no.

The Presiding Officer

Thank you, Mr Simpson. I will make sure that that vote is recorded.

For

Baker, Claire (Mid Scotland and Fife) (Lab)
Ballantyne, Michelle (South Scotland) (Reform)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
McNeill, Pauline (Glasgow) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harris, Alison (Central Scotland) (Con)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Johnstone, Alison (Lothian) (Green)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Ind)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 24, Against 95, Abstentions 0.

Amendment 23 disagreed to.

Amendment 24 moved—[Rhoda Grant]—and agreed to.

The Presiding Officer

That ends consideration of amendments.

As members may know, at this stage in proceedings, I am required under standing orders to decide whether in my view any provision of the bill relates to a protected subject matter—that is, whether it modifies the electoral system and franchise for Scottish parliamentary elections. The Domestic Abuse (Protection) (Scotland) Bill does not do so and therefore does not require a supermajority to be passed at stage 3.

We will have a five-minute suspension before we move on to the debate on the bill.

The Deputy Presiding Officer (Linda Fabiani)

The next item of business is a debate on motion S5M-24381, in the name of Ash Denham, on the Domestic Abuse (Protection) (Scotland) Bill.

The Cabinet Secretary for Justice (Humza Yousaf)

As is customary, I open the debate by thanking all those who worked hard to get us to this place and to get the bill into shape for stage 3. First, I thank my own bill team, who have not had their challenges to seek in having to deal with legislation in a very truncated timetable. They have worked extraordinarily hard with members across the chamber on the amendments lodged at stage 3. I also thank the members of the Justice Committee, and its clerks, for their scrutiny and diligence and, again, for working constructively with the Government on a number of amendments at stage 3.

I thank, too, those who, crucially, took the time to share their knowledge and experiences during the scrutiny process. Scottish Women’s Aid has already been referenced. However, I know that many other organisations, such as the advocacy, support, safety, information services together—ASSIST—service, and survivors and victims, who are predominantly women, have come forward to speak about their experiences of domestic abuse. I am sure that I speak for all members when I say that we applaud their bravery.

These are not normal times, and the pressures that many of us have faced as a result of the coronavirus pandemic have meant that we have struggled to dedicate time to help the Parliament to develop new laws, because there have been other competing priorities. I really thank members for the time that they have given to this bill, because it is absolutely crucial. In a week in which the Parliament has already united to incorporate the United Nations Convention on the Rights of the Child into domestic law, here is another opportunity for us to unite around transformational legislation.

Of course, the pandemic has meant that we have all been spending more time in our homes, which for many people will have been welcome. I have certainly enjoyed the time that I have spent at home with my family. However, sadly, we know that that is not true for everyone. The scourge of domestic abuse remains a blight on Scotland. Earlier in this parliamentary session, in taking evidence on what is now the Domestic Abuse (Scotland) Act 2018, we heard harrowing examples of the kinds of behaviour in which perpetrators of domestic abuse might engage. We now understand better the totality of what it is like to experience such abuse. Of course it can be physical—we have known that for a long time—but it can also consist of behaviour that is intended to humiliate or denigrate a partner or to exert control over every aspect of that individual’s life. It is corrosive, coercive and controlling behaviour.

Although the new domestic abuse offence has improved the criminal justice system’s ability to take action against perpetrators of such abuse, we know that we cannot rely solely on that system to deal with it. Inevitably, there are cases in which there will not be the evidence that is required to proceed with a criminal prosecution and so unlock the powers of the criminal court to protect those who are at risk.

When someone is being abused by a partner or an ex-partner with whom they live and it is not possible for criminal action to be taken against their abuser, they may lack the freedom to pursue, for example, civil court action, and they can find that they have very few options. We know that domestic abuse is the leading cause of homelessness for women, and it is easy to see why that is the case. I suspect that I am not the only member of the Scottish Parliament who has had to deal with such cases on a far-too-regular basis.

If the bill is passed by Parliament today, it will provide new powers that can be used to protect people, predominantly women.

Liam Kerr (North East Scotland) (Con)

The cabinet secretary talked about the statistics and homelessness. Earlier, I looked at the Scottish Government’s forthcoming publications. I might be missing something, but I did not see the usual publication of the Scottish Government’s domestic abuse statistics. Last year, they were published on 25 February. Will they be published and, if so, when?

Humza Yousaf

If the member will forgive me, I will take a look at that and get back to him before the end of the session.

The powers that are provided in the bill are significant. Part 1 of the bill creates new powers for the police and the courts to make a domestic abuse protection notice or a domestic abuse protection order. They can remove a suspected—that is an important word—perpetrator of domestic abuse from the home of the person who is at risk, and prohibit them from approaching or contacting the person who is at risk or any children involved. That provides the police and the courts with the powers to take action to remove a suspected perpetrator of abuse from a home that they share with a person who is at risk for a period of up to three months. That is intended to protect people who are living with an abusive partner or ex-partner, and gives them a breathing space within which they can consider the steps that they can take in the longer term to address their safety and their housing situation without any interference from their abuser.

Part 2 makes provision to allow social landlords to transfer a tenancy to a victim of domestic abuse. As it stands, there are a number of grounds on which a landlord can evict a tenant and reassign the tenancy to another person, but domestic abuse is not one of them. A new ground on which a social landlord can apply for a court order to end the tenancy of the perpetrator is being created. That will allow the victim to remain in the family home as sole tenant. Having the legal ability to end a perpetrator’s tenancy in domestic abuse cases will allow social landlords, without requiring the victim to commence the process themselves, to take a more proactive role in supporting and protecting victims of domestic abuse, and to support the victim to remain permanently in the family home.

The bill has been subject to effective scrutiny through a timetable that has meant that the bill has moved quickly from stage 1 just two months ago in January to today’s stage 3 proceedings and debate. That has been challenging, and I thank the Justice Committee for its excellent work in proceeding with scrutiny, alongside the many other demands that have been placed upon it.

The bill provides us with a legislative framework to implement a scheme of protective orders for people who are at risk of domestic abuse. However, I am all too aware that, if the scheme is to be effective in improving the lives of those people who are experiencing domestic abuse, how it is implemented will be vitally important. Indeed, a number of the concerns that were raised during parliamentary scrutiny of the bill relate not to the exact wording of the provision but to how it will be implemented in practice. As I said during the stage 1 debate, there will be a Scottish Government-led implementation board that will bring together all the key interests and stakeholders and partners, including Police Scotland, the Scottish Courts and Tribunals Service, Scottish Women’s Aid and others to work together to put in place the necessary processes to ensure that protection can effectively be given to those who are at risk of domestic abuse.

We know that legislation alone cannot address the issue of domestic abuse. However, ensuring that appropriate powers are available through the legislation is key. Once it is implemented, the bill will provide our police, courts and social landlords with significant new powers to deal with domestic abuse. Use of those powers will reduce the risk that the only way that a person can escape from an abusive partner is to flee their own home, often having to take the children with them or, even worse, to leave their children behind, then having to rely on emergency homelessness provision. That cannot be right.

We collectively have a duty to ensure that our law and our law enforcement agencies have the tools to prevent victims from being faced with such an impossible and devastating choice simply for their own safety. We have a duty to ensure that our law can keep people safe in their own homes, and I believe that the bill provides our law enforcement agencies with those tools and allows us to fulfil that collective duty.

I move,

That the Parliament agrees that the Domestic Abuse (Protection) (Scotland) Bill be passed.

Liam Kerr (North East Scotland) (Con)

I confirm that the Scottish Conservatives will vote in favour of the Domestic Abuse Protection (Scotland) Bill at decision time tonight. We share the chamber’s condemnation of domestic abuse as a scourge—to use the cabinet secretary’s correct word—on our society and welcome any attempt to address it and get justice for victims.

The context in which we are considering the bill is sobering. Recorded incidents of domestic abuse in Scotland have risen over the past three years. Indeed, the number of domestic abuse charges was at a four-year high in 2019-20. The committee heard evidence that Police Scotland is called out to around 60,000 incidents of domestic abuse every year. That is an average of 5,000 a month—1,200 every week.

Each incident that Police Scotland attends consumes, on average, nine hours of police time, and the social costs are massive, to say nothing of the horrific impact on the victims. That is terrifying, and I have no doubt that we are united in our wish to address it. The bill has three basic ways to do so.

First, to protect a person who is at risk of domestic abuse in the immediate term, it gives the power to a senior police officer, on reasonable suspicion, to issue a domestic abuse protection notice on a person who is engaged in abusive behaviour. Breach of such a notice is a criminal offence, and it forces the person to leave the home and stay away.

Secondly, the bill sets out provisions for the domestic abuse protection order. Whenever a DAPN is issued, the police must apply to the court for a DAPO on

“the first court day after the notice is”

issued, and any order can last up to two months, which period is extendable to three months. Breach is a criminal offence. I recall that I proposed an amendment to the bill that ultimately became the Domestic Abuse (Scotland) Act 2018 that called for something similar, so I am pleased that that provision is present.

Thirdly, the bill gives social landlords a new power to evict a tenant when the tenant has engaged in abusive behaviour.

It is a good bill in its principles, and it was further improved, as the cabinet secretary rightly said, at stage 2. For example, at stage 2, I flagged up Police Scotland’s representations that other statutory and third-party agencies should be able to apply for a DAPO. The police had pointed out 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 pleased that Parliament agreed to my amendment 20 today, which gives effect to that.

However, I made the point at stage 2 that it will ultimately be the practicalities that need to be addressed, because legal bodies and the police, in particular, had signalled outstanding issues that might mean that the bill’s powers could prove to be difficult to use in practice. As Detective Chief Superintendent McCluskey said, even at the moment, situations can be

“very challenging for officers on the ground.”—[Official Report, Justice Committee, 22 December 2020; c 29.]

The Law Society flagged up that DAPNs will be imposed by Police Scotland but noted that exactly what will amount to a sufficiency of evidence and the quality of that evidence in relation to abusive behaviour might not be consistent. If there is ambiguity, there is a risk of variations in the use of the bill’s provisions, depending on the operational decisions taken day by day and case by case by Police Scotland. The Law Society argued that that leads to a risk that there could be inconsistent practices across Scotland, as well as a lack of certainty.

All of that feeds into resource concerns. Scottish Women’s Aid makes that point forcefully and well in its briefing for the debate, saying that the police must

“be adequately resourced to be able to respond appropriately”

when assessing and imposing DAPNs or dealing with DAPOs and on enforcement. That will require training, which requires money and time. As Scottish Women’s Aid makes clear, that education and training will be required not only for the police but for everyone who is involved, such as the judiciary, the Crown Office and Procurator Fiscal Service and specialist independent advocacy.

In his opening remarks, the cabinet secretary referred to the post-bill implementation group, which is being set up to bring together all the key agencies that will be affected by the new legislation, including Police Scotland. That is welcome, but it will not be straightforward. The group will, of course, be assisted by the report that is required by my amendment 22, which will allow for scrutiny and evaluation. It will help to measure exactly what use is being made of the measures and where. In line with Scottish Women’s Aid’s recommendations, the group will broaden its focus beyond criminal justice outcomes to collect a much wider range of data on those protected and their children.

Every effort possible must be made to prevent domestic abuse, and the bill is another attempt to address this vile problem in society. It seeks to provide victims of domestic abuse with the protection that they need, and we are absolutely supportive of that. I would remark very gently that, looking at things holistically, I am concerned that the presumption against short-term sentences would mean that those who breached a DAPN or a DAPO would be unlikely to go to prison. That has been highlighted to me as a potential weak point by victims of domestic abuse, so I would be grateful if the cabinet secretary addressed that concern in his closing remarks.

The Scottish Conservatives will always stand up for the victims of crime, which is why we will be very pleased to support the bill tonight.

Neil Bibby (West Scotland) (Lab)

Like the cabinet secretary, I wish to thank all the people and organisations who have contributed to the bill. The shocking and brutal death of Sarah Everard has reminded us all of how vulnerable women are to violence and abuse from men. As tragic and sad as that horrific murder is, it should not blind us to the fact that the vast majority of attacks on women who are abused are carried out by perpetrators who are known to, and often related to, the victim. I recognise that not all victims of domestic abuse are female, but the harsh reality is that the vast majority are. Therefore, this short but welcome bill is not about women; it is overwhelmingly about men and men’s behaviour towards women.

Scottish Labour is clear that we need a criminal justice system that protects women and all victims, and this bill is another small step in correcting the power imbalance and unfairness that has always existed. It is another small step in giving greater protection, security and support to all victims of domestic abuse. It is another small step in declaring to perpetrators of domestic abuse that this behaviour will not be tolerated. Scottish Labour supports the bill, and we agree that there is a need to enhance protections for those at risk of domestic abuse, especially when the risk is from a perpetrator who is living in the same home.

During the scrutiny of the Domestic Abuse (Scotland) Bill, the Justice Committee became aware that the law and court processes in Scotland did not provide adequate protections for victims in emergency situations, and this bill aims to close those gaps. Scottish Labour believed that there were issues with the bill as originally drafted, but I appreciate the positive way in which everyone has worked to make the bill a reality, and I thank the cabinet secretary for his willingness to listen to suggestions. It remains to be seen whether the bill will be effective. The proof will be whether it is able to change the experience of those who are at risk of abuse.

Scottish Labour believes that there should be more protection for children who witness abuse in their homes, and we welcome the changes that emphasise the need to consider children’s views. That is why my colleague Rhoda Grant has pursued the matter. Improvements have been made in that regard, but the issue must be closely monitored. However, legislation on domestic abuse will never achieve its aims unless it is enforced, which we have discussed already today. Wider society needs to change, and Police Scotland must use all available powers to protect victims.

Domestic abuse protection notices and domestic abuse protection orders are not insignificant measures, and I appreciate the pressures that they could place on Police Scotland. However, it is right that urgent and effective action is taken to give immediate respite to victims, and forcing a perpetrator to leave the home of the abused partner and to stay away for two or more months is the right thing to do. I understand the sensitivities about whether a full protection order should require the consent of the victim, but it is also important that protection notices and orders are effective and that they are used to protect victims, some of whom might be under the coercive control of their abusers.

Earlier, my colleague Rhoda Grant made important points about training. She also sought amendments to clarify that other court orders, such as those on child contact, cannot be used as a defence for a breach of protection orders or notices. I welcome the fact that those amendments were agreed to and the assurances that they will provide. I hope that the Scottish Government will come back to the Parliament if the evidence shows that the time limits for protection orders are not sufficient.

The cabinet secretary emphasised the importance of implementation, and, like Liam Kerr, I am clear that the age-old problem of resources also needs to be confronted. The legislation will place an additional burden on Police Scotland, the court service, the legal aid system and housing providers. I would not want the effectiveness of the legislation to be diminished through a lack of proper investment, and I hope that the cabinet secretary will give Parliament comfort on that.

Scottish Labour commends the bill. We hope that, although it is short, it will be effective. I look forward to its making a positive difference to the victims of domestic abuse.

John Finnie (Highlands and Islands) (Green)

My thanks go to all the people who have brought us to this point. As colleagues have said, they are many in number, and their contributions have all been very helpful in shaping the bill, which the Scottish Green Party will support at decision time tonight.

One of the early contributions was a briefing from the Scottish Parliament information centre. It contained a section headed “The story so far”, which outlined the changes that had taken place over a period of time. It is an evolving story, and those changes have hopefully been playing their part in addressing what Neil Bibby referred to as “the power imbalance”. We have a way to go but, in chipping away at it, we are making some progress.

I recall the scrutiny of the bill that became the Domestic Abuse (Scotland) Act 2018. Members of the Justice Committee took harrowing testimony from people about the circumstances in which they had found themselves, which obviously cannot be discussed in detail, but it demolished much of the stereotyping associated with the vile scourge of domestic violence. It involved controlling and coercive behaviour.

The legislation is rightly viewed as unfinished business. There is a gap in the requirements of the Istanbul convention, which has been signed, but not yet ratified, by the UK Government. Scottish Women’s Aid told us that the convention is

“probably the ... best piece of violence against women policy that has ever been written, anywhere.”

It is for that reason that I had some disquiet in not going along—for once—with Scottish Women’s Aid on the issue of consent. We had an interesting debate about that and about the obligations that have been put in place. My concerns were primarily predicated on controlling and coercive behaviour, which is a pernicious, nuanced abuse, invariably of women.

Police Scotland now has the new powers, which it described as

“providing an exceptional tool for use in exceptional circumstances”,

although they

“should not constitute the routine response.”—[Official Report, Justice Committee, 22 December 2020; c 24.]

I hope that that is the case in many respects. I have a number of concerns about circumstances in which the suspect—that is what they would be—is absent from the scene. The suspect may have been arrested, but there might be insufficient evidence. We heard about issues around what would actually happen with the administration of the domestic abuse notice. I am very grateful for the engagement that Scottish Women’s Aid and the Cabinet Secretary for Justice had on tightening up the parameters around that.

Going ahead, there is an important role for the implementation group in understanding the particular challenges that will arise with legislation that must apply equally to Shetland as it does to Stirling, and in understanding the implications and challenges that come with giving police an extraordinary power to deny someone their residence. That is a power that would normally be reserved to court, and it is a power on which the court will pass comment on the next lawful day. That in itself presents a big challenge.

In the limited time that I have left, I will mention the issue of police and judicial training, which is absolutely vital. It is still the case, sadly, that some inappropriate comments are made from the bench. When it comes to understanding the consequences of men’s violence against women, particularly the perniciousness of controlling and coercive behaviour, we are not quite there yet.

I commend White Ribbon Scotland, which engages with men in speaking out on and taking action against men’s violence against women and girls. This is undoubtedly very much gender-based violence, but it affects everyone, and it remains a blight on our communities.

Everyone should feel safe in their home, and I hope that the bill will go some way in providing some reassurance to women on that.

Liam McArthur (Orkney Islands) (LD)

I start where John Finnie ended: I declare an interest as an ambassador for White Ribbon Scotland Orkney.

Recent events have provided a graphic reminder of the context in which we need to view the proposed legislation that we have been debating this afternoon. The bill was necessary when it was introduced to Parliament last year, it remains so today and Scottish Liberal Democrats look forward to passing it into law shortly.

Much of the debate around Sarah Everard’s brutal murder and its aftermath has focused—quite rightly—on what needs to be done to allow women and girls to feel safe on our streets and in our public spaces. That debate must, and will, continue. However, it should go alongside an emphasis on the right of women and girls to feel safe in their own homes, too. The grim reality is that home is often where they face the biggest risks and the greatest harm, never more so than during the pandemic, given the effects of the lockdown restrictions.

That is why the measures in the bill to improve protection for those who are at risk of domestic abuse are so important, in particular where survivors are living with the perpetrator of the abuse. As I said during the stage 1 debate, the principles of the bill broadly reflect the policy that was adopted by Scottish Liberal Democrats back in 2019. Despite that, the original bill was in need of quite a bit of remedial work. The Justice Committee heard concerns from various witnesses, not least the police themselves, about the practical implications, a lack of clarity, potential overlap and other similar concerns. Those concerns have now largely been addressed, and I put on record my thanks to the cabinet secretary and committee colleagues, in particular Rhoda Grant for the leading role that she has played. I also thank witnesses, clerks, SPICe and all those who assisted the committee in carrying out scrutiny in what, as the cabinet secretary acknowledged, has been a truncated timeframe.

In Scotland, current civil measures place the onus on the victim to apply for protective orders in cases of domestic abuse. Under the bill, police would be able to impose a protection notice and thereafter apply to the court for a protection order. That could place prohibitions on a suspected perpetrator of domestic abuse, which may include removing them from a home that is shared with a person who is at risk and prohibiting contact while the order is in effect.

Today, Parliament has agreed to provide further flexibility in the court’s powers in relation to orders, which is sensible. The step of creating a new ground for social landlords to apply to end the tenancy of a perpetrator of abusive behaviour, with a view to transferring the tenancy to the victim, is also welcome and, as John Finnie reminded us, not insignificant. It will help to address, at least in part, the well-established link between domestic abuse and homelessness.

The provisions in the bill are both welcome and timely. Of course, they are only a very small part of the measures that are needed in response to the concerns that we have heard voiced with such force in recent days. The lived experience of too many women and girls is not one that should be tolerated in 21st-century Scotland. I look forward to seeing the recommendations from Dame Helena Kennedy and her working group on misogyny. However, her work is, of necessity, likely to focus principally on the case for a stand-alone offence of misogynistic harassment, which is necessary but not enough. I therefore welcome the proposal from my Scottish Liberal Democrat colleague Caron Lindsay for a commission that is able not only to build on the working group’s findings, but to look at the wider issues that need to be addressed. I thank the cabinet secretary for responding positively to that idea when I raised it with him in the chamber yesterday. I hope that colleagues in other parties will also agree to look at how a commission might be established in the next session of Parliament after the election.

For now, I confirm once again that the Scottish Liberal Democrats will be happy to lend our support to the Domestic Abuse (Protection) (Scotland) Bill at decision time.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

It gives me great pleasure to speak in the debate as a member of the Justice Committee, which has been involved in the bill process at all stages. The bill is an important piece of legislation that builds on previous bills that this Government has introduced in seeking to protect women from domestic abuse, such as the Domestic Abuse (Scotland) Act 2018. There were people in the public gallery when that bill went through—those were certainly different days.

When I was working as a social worker, one thing that always struck me and my colleagues in dealing with a domestic abuse situation was the inherent unfairness in that it was the victim—the victims were primarily women and children—who had to choose whether to leave or flee the situation. Often, pressure was put on them to get out of the situation, and sometimes even child protection procedures and the like were directed to that end. How unfair is that? It has always been unfair—it is the victim’s home too, and the bill seeks to address that unfairness.

Through DAPNs and DAPOs, the bill provides for the removal of the alleged offender, to protect the person who is at risk. Orders will allow immediate protection while the person works out what to do next. As Liam McArthur said, under part 2 of the bill, social landlords will be able to end or transfer the tenancy of a perpetrator of domestic abuse, to prevent a victim from becoming homeless and enable them to remain in the family home.

As members said, the bill as introduced was not perfect. Its progress through the stages is another good example of this Parliament working well to develop good legislation. We heard concerns about, for example, compliance with human rights and how the police might enforce orders. Amendments at stages 2 and 3 sought to address those concerns.

As other members have done, I note the concerns that Scottish Women’s Aid expressed about the amendments that removed the requirement for person B to consent to a DAPO. However, overall, Scottish Women’s Aid and many other organisations, including Barnardo’s, have supported the bill. I thank them for their briefings and input throughout the process. In its briefing for members in advance of stage 3, Scottish Women’s Aid said:

“The Bill marks a critical shift in preventing women’s homelessness by removing and barring the perpetrator from the home and gives social landlords greater control to transfer tenancies to a victim/survivor, upholding women’s rights to remain in her home and we strongly urge all MSPs to support it.”

I will continue to talk about women’s aid services for a wee bit. Members will be aware that, a couple of weeks back, I raised with the First Minster the defunding—in effect—of some women’s aid services in North Lanarkshire. The move has been condemned by MSPs and MPs across all political parties in the area, and Scottish Women’s Aid is seeking further meetings with North Lanarkshire Council. I understand that there was a tendering process, but there was broad trust in the services, and in the midst of a global pandemic, with domestic abuse on the rise, there is real concern that women and children will be left without much-needed support.

The council has not deliberately created that situation—of course it has not done; nobody would suggest that. The situation is likely the result of processes and procedures that are in place. However, it demonstrates the difference between policies and legislation that are made in the Scottish Parliament and the reality of what is happening on the ground. A reduction in women’s aid services is not in line with the aims of the bill or other legislation.

I am aware that Scottish Government funding continues for some services, but given that we are on the verge of passing a groundbreaking bill at decision time, I ask the cabinet secretary to look into the circumstances in North Lanarkshire and consider whether additional support can be given to the women’s aid services in the area, to ensure that they can continue all their services.

I am running out of time, Presiding Officer. I welcome the bill and am grateful to have been involved in taking it through all its stages. I urge members to support it at decision time.

James Dornan (Glasgow Cathcart) (SNP)

I am delighted to take part in today’s incredibly important stage 3 debate—all the more so because improving support for survivors of domestic abuse is a subject that I care very much about.

Since I was elected, it has been an honour to work with and to learn from two brilliant community organisations: Waves (Women Against Violent Environments) and the Daisy Project in Castlemilk, which do so much to support survivors of domestic abuse and male violence. It is sadly but undoubtedly the case that domestic abuse and violence are happening in every community in the country. The situation has been exacerbated by the pandemic. Local groups such as the two that I just mentioned will never be more important than they are now.

A truly damning statistic is that the police in Scotland have in recent years recorded more than 60,000 domestic abuse incidents a year, on average. We all know that that is just the tip of a horrible and bloody manmade iceberg. We must do what we can to eradicate domestic abuse and to support the victims who are affected.

In this parliamentary session, the Government introduced a world-leading bill—it became the Domestic Abuse (Scotland) Act 2018—to make psychological domestic abuse and controlling behaviour a crime. Scotland is one of only a handful of countries in the world that have introduced a dedicated bill that covers not just physical behaviour but other forms of abusive behaviour that could not easily be prosecuted under the previous criminal law. The bill builds on that important work by providing additional protections for people who are at risk of domestic abuse, particularly when the person is living with their abuser.

In 2019, I held a round-table event in the Parliament and secured a members’ business debate shortly afterwards on financial abuse and how it should be recognised as coercive and controlling behaviour. It was clear from our discussions that domestic abuse perpetrators are very often the main claimant on benefit claims and the main signatory on car finance and mortgages, which leaves the person whom they are abusing having to rely on them. It is hard enough for women—of course, survivors are overwhelmingly women—to leave an abusive relationship through fear for their or their children’s safety, and worry about other issues such as their housing situation adds to the feeling of helplessness and fear.

It is clear that survivors should not be made to suffer more after having had the courage to take action about their abuse. The perpetrators should be held accountable and should be the ones who are removed from the house. The likelihood is that the bill will provide courts with a new power to do just that, through the domestic abuse protection order.

The bill also contains important provisions for social landlords and their tenants. I have read the submission by the Glasgow and West of Scotland Forum of Housing Associations, which made an extremely important point. It wrote that

“It has long been a source of extreme frustration for social landlords, and of course for people on the receiving end of domestic abuse, that the law does not allow one of two joint tenants to be evicted alone.”

It therefore warmly welcomed the tenancy-related measures in the bill, including

“Recovery of possession of the house, in the case of a perpetrator who is a sole tenant, with the intention to then create a new tenancy in the name of the abused person”

That provision will prevent a victim from becoming homeless by enabling them to remain in the family home, if that is what they desire. I agree with Scottish Women’s Aid, which said that the bill as a whole could make an immediate and significant difference for women and children who are experiencing domestic abuse.

It is fitting that my last speech of the session is on this subject. If I have the privilege of being returned, supporting women and working to eradicate violence against women and girls will be at the top of my agenda.

During a time when the Scottish Parliament is under attack, it is good to be able to remind everyone of what has been achieved in just the past seven days. Last week, we passed the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill, yesterday we passed the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and today, we will pass this fabulous piece of legislation. The Parliament can be proud of the work that it consistently does—in particular, what it has done to support survivors of domestic abuse. We should all back the bill whole-heartedly at decision time.

The Deputy Presiding Officer

The final contribution in the open debate is from Alex Neil. This is Mr Neil’s final speech in the chamber.

Alex Neil (Airdrie and Shotts) (SNP)

Thank you very much. As the Deputy Presiding Officer said, this is, after 22 years, my final speech to Parliament as an MSP, before I step down in May.

Until my dying day I will be very proud, like the Deputy Presiding Officer, to be have been a founding member of the Parliament—the first ever democratically elected Scottish Parliament. We have proved that Jimmy Maxton was right when he said that a Scottish Parliament could achieve for Scotland much more in five years than Westminster could achieve in 25 years.

That said, we have a lot more to achieve, so I hope that in future years we will not be timid, but will instead be a bit more radical in what we try to do for Scotland. We will democratise the Parliament internally by strengthening the role and power of back benchers and committees, which I hope will happen soon.

I take this opportunity to thank all the Parliament’s staff for all the 22 years of exceptional and friendly support and help. I thank all my friends on all sides of the chamber for their friendliness and support, and I thank my excellent staff over the 22 years, including my existing staff, who are helping me enormously in the constituency in difficult times.

I particularly want to thank my constituents in Airdrie and Shotts, which is a very fine constituency with very fine people. It has been an honour to represent them in the Parliament for the past 22 years, as a list member and as a constituency member.

In two of the four ministerial positions that I have held, I have had responsibility for chairing the Scottish Government’s national group on violence against women, which is a body that includes representatives from a wide range of local and national organisations.

I believe that, since 1999, every Administration has made progress in dealing with the problem of domestic abuse and violence against women, although that has not always happened at the pace and scale that we all wished for. In supporting the bill today, we must rededicate ourselves to doing more to reduce and, I hope, eventually to eliminate that evil from our society. The measures that are contained in the bill that we are, I hope, about to pass will help us to do a lot more, by preventing enforced homelessness of abused women and their children, as well as, through provision of additional police powers, helping people who badly need our protection.

However, as the cabinet secretary and others have pointed out, passing legislation is extremely important but is not the total answer. I have to say that it does not always deliver the response that we need on the ground. On that point, I will mention two cases that I have dealt with involving women being stalked by ex-partners. Those women had horrific experiences.

To be honest, I say that the criminal justice system has not always been at its best when dealing with such cases—not through malicious intent but because it is not joined up enough. In one case—which started before the pandemic—the abused person has been waiting a year for the alleged perpetrator to appear in court. He still has not appeared in court and will not do so until July. That is just one example of our needing to do much more to drive the criminal justice system, the police, the prosecutors and everyone else involved to make sure that those women get the protection that we all want them to have and for which we are legislating.

As Fulton MacGregor rightly pointed out, the decision—again, I note that it was taken without malicious intent—by North Lanarkshire Council a few weeks ago to award a contract for local domestic abuse services to a national non-specialist organisation was a mistake. Under that contract, the same organisation will provide services to both victims and culprits. That is a backward step that flies in the face of what we know about best practice in dealing with violence against women. It will also result in the defunding of brilliant organisations such as Monklands Women’s Aid, which has done a huge amount of work in the field. Like Fulton MacGregor, I hope that North Lanarkshire Council will rectify that mistake, which was the result of a decision that was made with good intent but bad judgment.

As I said, the issue is not just about passing legislation. It is not even just about more training and more education. At the root, we need to change the culture, the attitudes and the levels of awareness among all the institutions that we need to fight against this terrible evil.

If I may make a recommendation to the cabinet secretary, I say that I think that his idea of an implementation board is absolutely excellent, but he should ensure that other essential services, including housing and welfare support, are included in that implementation plan, because there has to be an integrated approach to helping women who find themselves in situations such as many abused women and children find themselves.

Scotland, as a country, must do better if we are to stop letting down those women and make a real dent in the number of women and children who are subjected to abuse and violence by male perpetrators. No civilised society can tolerate such violence. Stopping it must be a top priority for the new Parliament that will be elected in May. I am absolutely sure that the legislation that I hope we will pass this afternoon will make a significant contribution to that objective.

Rhoda Grant (Highlands and Islands) (Lab)

I thank committee clerks and staff, SPICe and the legislation team, who helped the committee to scrutinise the bill and to frame amendments that I believe improve the bill.

I also wish Alex Neil all the best for the future and thank him for his contribution to the Parliament as well as his contribution to combating violence against women. I am sure that he will continue to do so, and he is right to say that there is much still to do in that area. I also join him in paying tribute to Women’s Aid for the work that it does, not only on the bill but, daily, to help victims of domestic abuse. I believe that it should lead the charge against domestic abuse and hope that sense can be seen and that it will retain contracts to protect women.

We welcome the bill, which provides much needed assistance to victims of domestic abuse. Domestic abuse is a blight on our society, where a perpetrator seeks to control their partner. What is even worse is that the abuse is carried out by someone who is supposed to love their victim. It happens behind closed doors and is difficult to prosecute because of the lack of corroboration.

Until now, victims have had to organise their own protection by getting non-harassment orders. That means getting legal advice, which is not always available through legal aid, even if they can find a legal aid lawyer. The bill puts state protection in place for the first time. As Fulton MacGregor said in his speech, it enables the victim to remain in the family home and is a positive step in the right direction. We welcome that, but we need to remember that such protection was available in other countries a decade ago, so we must speed up how we work to protect victims of abuse.

Neil Bibby talked about the need to protect children, Such protection is, sadly, still lacking, and we need to look at how we provide it. It is disappointing that the bill will not provide children with protection in their own right, and I am sure that we will need to return to that in the future.

John Finnie talked about the need for training of police and sheriffs, which was a point that I made when speaking to amendments. Too often, our courts allow themselves to be used in order to perpetrate abuse, by giving contact to abusive partners, which allows them to track and control their victims all over again and continue to damage the children of that relationship. Anyone who abuses their partner must be forced to relinquish access to their children until such time as they can prove that they have changed their behaviour and that they are no longer going to damage those children and the children’s parents.

This bill will not be the last word on how we deal with domestic abuse; we must deal with a number of issues, not least its impact on children. We must also take measures to ensure that victims have access to a safe place and alarms. That is especially the case in rural areas, where assistance is not close by.

We must teach boys and men that they cannot abuse their physical strength and power over their partner; that is missing from our education system. Neil Bibby made the point that domestic abuse is not a women’s problem; it is a problem with the men who perpetrate it. We must protect women from misogyny; we failed to do so with the hate crime bill last week but, until we do, women will continue to be subject to men’s violence. In a week in which we have seen, in sharp relief, men’s violence against women, we must redouble our efforts to create a safe place and an equal society for women.

Adam Tomkins (Glasgow) (Con)

This is the last speech that I shall make to the chamber, so I hope that the Presiding Officer will forgive me if I offer a few remarks not only on the bill that we are about to pass but on one or two broader matters.

The Domestic Abuse (Protection) (Scotland) Bill is an important measure that adds to Scotland’s cutting-edge laws on domestic abuse. When, once again, violence against women is much in the news and our thoughts, it is timely.

I welcome the bill. The Justice Committee has been anxious to ensure that the provisions in the bill will be practical and of real use to those, especially in Police Scotland, who will have to make the new powers work. We have also been concerned to ensure that the provisions will operate compatibly with convention rights.

This is the third Government bill in quick succession that the Justice Committee has examined, following hard on the heels of the Defamation and Malicious Publication (Scotland) Bill and, of course, the Hate Crime and Public Order (Scotland (Bill). All three bills touch directly on our fundamental human rights; all three make significant changes to the law; and all three have found the Justice Committee working hard together, across the parties, to agree reports that, I hope, have improved the quality and effectiveness of the Parliament’s legislation.

I have been the convener of the Justice Committee for a short time only, but I have enjoyed it immensely. Despite, in the end, not being able to vote for all the legislation that we have examined, I am proud of the work that the committee has done while I have served as its convener.

Parliaments exist to do three things: represent the interests of our constituents in debates on matters of public importance, hold the Government to account and make legislation. I have been studying and writing about Parliaments all my adult life, I have been a member of this Parliament for five years and, before that, I was an adviser to the House of Lords for six years. It was in the House of Lords where I saw at first hand what parliamentarians could do to improve laws, even if they were not in sympathy with the political preferences of the Government of the day. I tried to apply those lessons to my practice as a parliamentarian here.

As I look back on the past five years, I remember the work that my colleagues and I did at the beginning of the session with Pauline McNeill and Alison Johnstone to make the Child Poverty (Scotland) Bill stronger; the work that we did with Lewis Macdonald to make the Planning (Scotland) Act 2019 stronger; and the work that Bruce Crawford and I did with the Finance and Constitution Committee on the common frameworks that the United Kingdom internal market needs now that we have left the European Union. Turning to more recent matters, I will long remember the work that I did with Liam McArthur, my good friend Liam Kerr and other members on the Hate Crime and Public Order (Scotland) Bill to make it, if not stronger, then a lot less dangerous than it would otherwise have been.

Child poverty, planning law, common frameworks and hate crime—that is a broad range of subjects, but there is one common thread: all were examples of cross-party working. Better together is the name of the campaign that first brought me into Scottish politics, and nothing that I have seen or heard in the past 10 years has made me change my mind about that. We are better when we work together, and we make better laws together.

When it comes to the other key function of Parliament, which is holding the Government effectively to account, I am afraid that the Scottish Parliament still leaves a great deal to be desired. It is not because we lack powers—it is more disturbing than that; it is because too many of us lack the will to use them.

However, today’s debate is not about holding the Government to account but about making law. The Domestic Abuse (Protection) (Scotland) Bill is, I hope, good law. It will help to make women safer; it will help Police Scotland to tackle the scourge of domestic violence; it will be useful on the ground; and it will be compatible with the European convention on human rights. I am glad to have played a small role in making it. I commend it to the chamber and I look forward to voting for it at decision time.

Humza Yousaf

As other members have already said, the Parliament is at its best when we unite. We do not pursue false consensus for the sake of it but, when we believe that there is an ideal that is greater than our individual parts, we come together to enact transformational law. There have been many examples of that. In the past 24 hours, we have seen the historic moment in which the United Nations Convention on the Rights of the Child was incorporated into domestic law. The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill, the Hate Crime and Public Order (Scotland) Bill and many other pieces of legislation have recently been passed by the Parliament through unanimity and consensus, or with the backing of a large majority of the Parliament.

It is right that we end this parliamentary session on a point of unanimity. There are other bills to be considered next week, but I am proud that the final Government bill of the session that we will consider is the Domestic Abuse (Protection) (Scotland) Bill.

I turn to important points that colleagues around the chamber have made. Liam Kerr, Neil Bibby, Liam McArthur, John Finnie, Adam Tomkins and many other members were right to remind us of the context that we are in. In the past week, we have heard harrowing testimony from women about the dangers that they face from men. One member mentioned women as being vulnerable. That is not the case. As I see it, men’s violence and abuse of power are the problem, not women’s vulnerability.

As I said, some of the testimonies that we have heard have been harrowing. However, they have also forced a lot of men—I certainly speak on my own behalf—to take notice. For example, my wife has told me of the dangers that she faces. The other week, she told me, she was taking my daughter for a walk in broad daylight and a man was behind her. As she turned the corner—and although I was at work, here, in the chamber—she felt the need to shout out, “Humza, just wait for us.” That is incredible. I would never think to do that on a walk in darkness, let alone in broad daylight. I have never felt the urge to clench my keys in my pocket—nor, in pre-Covid days, to say to my friends after a night out, “I’ll text you when I’m back home safely.” I have never felt the urge, on the way back to my car, to pick up my phone and pretend that I am on a call so that people will think that I am speaking to somebody. I have never felt the urge to do any of that. However, those are probably fairly common practices, as I have heard recently from many women who have shared their testimonies over the past week.

Ruth Maguire (Cunninghame South) (SNP)

As the cabinet secretary makes his remarks, it strikes me that, over the past five years, almost every time that a woman is murdered or something terrible happens, we stand up in the Parliament and share what is happening. It is not something new. How does he respond to that? He has shared stories from the women in his life that we have to tell over and over again. It is important to acknowledge that, although the past week has been terrible, and painful for people, it has been like that for ever such a long time.

Humza Yousaf

Yes; it has been like that not only for years or decades but for centuries and perhaps for even longer than that. As she spoke, I sensed Ruth Maguire’s rightful frustration. We have to respond as a Government but also, I think, as men.

The working group on misogyny and criminal justice in Scotland is being led by Baroness Helena Kennedy. I think that she will provide some helpful legislative solutions to some of the issues that have been raised.

However, as many members have mentioned—including, in particular, Rhoda Grant, in her closing speech on behalf of Labour—it is not just about legislation. It must also be about education. A number of my male colleagues have referenced the fact that they are members of White Ribbon Scotland, whose work I commend. We must take up that challenge from Rhoda Grant and from, I am sure, many other women members, of educating our sons, brothers, other males and ourselves about why women feel that men are a danger to them. We must modify our behaviour. I would certainly like to learn more on that journey. I think that I have done some of that; however, there is an immediate need not just to learn but to act. I hope that the Domestic Abuse (Protection) (Scotland) Bill is a demonstration of that action, in a small but nonetheless significant way.

I will also mention John Finnie’s comments. Although I am sure that he will contribute to other debates before the end of the session, I think that this will have been his last contribution from a justice portfolio perspective. I have known him for many years and I have admired and respected him as a friend. He has one of the strongest moral compasses that I know. I was deeply saddened when I learned that he had left my party. However, he has always worked constructively with members of all parties, and always in the pursuit of justice. As a member of the Justice Committee and as the convener of the Justice Sub-Committee on Policing, he has been formidable, forensic and thoughtful, and I, for one, will miss him greatly in the Parliament.

Other members made a number of points. I know that time is short. Fulton MacGregor and Alex Neil certainly made important points about North Lanarkshire Council, and both have challenged the Government to look at that situation. Although we fund local government to fund local services, I am nonetheless happy to look into the issue because domestic abuse is unfortunately prevalent in our society and it is important to tackle it.

James Dornan is right about Police Scotland attending 60,000 domestic abuse incidents each year. We must do better.

Alex Neil made a thoughtful valedictory speech. He is formidable. The Opposition might breathe a sigh of relief that they will no longer have to deal with Alex Neil, who speaks so articulately and with great strength. I suspect that we will breathe a greater sigh of relief than the Opposition, but he has always challenged Government fairly and I commend him for doing so again in his valedictory speech. Even now, he is stealing the thunder and attention, although he is not in the chamber. He is right to do so.

Alex Neil made some fair comments about how the criminal justice system must do better and referred to a constituency case of stalking that he had dealt with. All of the issues that he fairly raises are being discussed by Police Scotland, the Scottish Courts and Tribunals Service, the Government and many others as part of the work of the victims task force. I wish Alex Neil the very best.

Adam Tomkins made a thoughtful speech. I congratulate him on his five years of service in the Parliament. He has shown himself to be an effective committee convener. Perhaps the best compliment that I can pay him is to say that I suspect that many of his opponents will, again, breathe a sigh of relief at his departure. He said that nothing that he has heard in these five years has convinced him to change his mind about supporting the union. I remember an Adam Tomkins who supported independence, so we will not give up hope just yet.

I will end with a quotation from a 2015 publication by Scottish Women’s Aid called “Change, Justice, Fairness”. It was subtitled “Why should I move everywhere and everything because of him?” The research cast light on the massive impact of domestic abuse on women’s living situations. The group of women who were involved in that publication wrote:

“When we came together as a group of women from di?erent backgrounds and life experiences and began sharing our stories we found strong similarities in how we had been treated. We were determined to prevent other women and children in the future from having to live through what happened to us. We had done nothing wrong but were forced to leave our home, either by the perpetrator or by the housing system that expected us and our children to become homeless.”

We must do better, for those women who feel that they must flee their homes to escape domestic abuse. We must do better, for women who believe that they have to choose between their own safety and abandoning their children. We must do better, to ensure that women are not left homeless by the scourge of domestic abuse.

I hope that the Domestic Abuse (Protection) (Scotland) Bill is a demonstration of this Parliament and this Government doing better. It gives powers to Police Scotland and the Scottish Courts and Tribunals Service to ensure that victims of domestic abuse are provided with safety, even when the criminal threshold has not been met. We should never again have that stain on our collective conscience that victims of domestic abuse—predominantly women—must flee their homes in order to protect themselves from the risk of abuse.

I am delighted to hear that all political parties will support the bill and I commend the Domestic Abuse (Protection) (Scotland) Bill to the Parliament.

The Deputy Presiding Officer

The concludes the debate on the Domestic Abuse (Protection) (Scotland) Bill.

The Presiding Officer (Ken Macintosh)

The first question is on the Domestic Abuse (Protection) (Scotland) Bill but, before I put the question, rather than suspend proceedings I ask members to refresh their voting apps. I will allow a few moments for everyone to do so and for those who were not here earlier to enter today’s PIN.

The question is, that motion S5M-24381, in the name of Ash Denham, on the Domestic Abuse (Protection) (Scotland) Bill, be agreed to. There will be a one-minute division.

The vote is now closed. Please let me know if you were not able to vote.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harris, Alison (Central Scotland) (Con)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Ind)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division on motion S5M-24381, in the name of Ash Denham, is: For 118, Against 0, Abstentions 0.

Motion agreed to,

That the Parliament agrees that the Domestic Abuse (Protection) (Scotland) Bill be passed.

The Presiding Officer

The Domestic Abuse (Protection) (Scotland) Bill is therefore passed. [Applause.]

The next question is, that motion S5M-24383, in the name of Roseanna Cunningham, on the reappointment of Scottish land commissioners, be agreed to.

Motion agreed to,

That the Parliament notes the Environment, Climate Change and Land Reform Committee's 3rd Report 2021 (Session 5), Scottish Land Commission — Reappointment of Commissioners (SP Paper 936); welcomes the committee’s recommendation that the Parliament approves the reappointment of Professor David Adams and Ms Megan MacInnes as Commissioners to the Scottish Land Commission for an additional three-year term, and approves the reappointments as required by Section 10 of the Land Reform (Scotland) Act 2016.

The Presiding Officer

The next question is, that motion S5M-24366, in the name of Bill Kidd, on urgent Scottish Parliamentary Corporate Body questions, be agreed to.

Motion agreed to,

That the Parliament notes the Standards, Procedures and Public Appointments Committee’s 8th Report 2021 (Session 5), Standing Order Rule Changes — Urgent Questions to the Scottish Parliamentary Corporate Body (SP Paper 975), and agrees that the changes to Standing Orders set out in Annexe A of the report be made with effect from 12 May 2021.

The Presiding Officer

The next question is, that motion S5M-24365, in the name of Bill Kidd, on public petitions system changes, be agreed to.

Motion agreed to,

That the Parliament notes the Standards, Procedures and Public Appointments Committee’s 7th Report 2021 (Session 5), Standing Order Rule Changes — Public Petitions System (SP Paper 974), and agrees that the changes to Standing Orders set out in Annexe A of the report be made with effect from 12 May 2021.

The Presiding Officer

The next question is, that motion S5M-24374, in the name of Bill Kidd, on the Equalities and Human Rights Committee’s remit, be agreed to.

Motion agreed to,

That the Parliament notes the Standards, Procedures and Public Appointments Committee’s 4th Report 2021 (Session 5), Standing Order Rule Changes — Equalities and Human Rights Committee Remit (SP Paper 965), and agrees that the changes to Standing Orders set out in Annexe A of the report be made with effect from 12 May 2021.

The Presiding Officer

The next question is, that motion S5M-24398, in the name of Graeme Dey, on approval of the Scottish statutory instrument on the amendment of expiry dates regulations, be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division. This will be a one-minute division.

The vote is now closed.

Graham Simpson (Central Scotland) (Con)

On a point of order, Presiding Officer. I was not able to vote. This will be the final time I vote from my office, I can assure you. I would have voted no.

The Presiding Officer

Thank you, Mr Simpson. I will make sure that your vote is recorded.

Anas Sarwar (Glasgow) (Lab)

My apologies, Presiding Officer. I would have voted yes.

The Presiding Officer

Thank you, Mr Sarwar. I will make sure that your vote is recorded.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
Wightman, Andy (Lothian) (Ind)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Corry, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

The Presiding Officer

The result of the division on motion S5M-24398, in the name of Graeme Dey, is: For 93, Against 27, Abstentions 0.

Motion agreed to,

That the Parliament agrees that the Coronavirus (Scotland) Acts (Amendment of Expiry Dates) Regulations 2021 [draft] be approved.

The Presiding Officer

I propose to ask a single question on the 14 Parliamentary Bureau motions. The question is, that motions S5M-24399, S5M-24400 to S5M-24409, S5M-24411 and S5M-24412, and S5M-24410, all in the name of Graeme Dey, be agreed to.

Motions agreed to,

That the Parliament agrees, with effect from 12 May 2021—

(A) the following temporary rules under rule 17.1A—

Temporary Rule 1

Election of the Presiding Officer and deputy Presiding Officers

1. This Rule applies to the election of the Presiding Officer and any deputy Presiding Officers to be held at the beginning of Session 6 by virtue of Rules 3.2 and 3.3. It ceases to apply on 30 June 2021.

2. Any meeting of the Parliament convened for this purpose may be held in the Debating Chamber of the Parliament, Holyrood, or at any other location within Holyrood as may be determined by the Presiding Officer, and members shall be notified of that location or locations.

3. A member may, at any time during the period which is not earlier than 90 mins and not later than 30 minutes before the time appointed for the beginning of the voting period for Presiding Officer or, as the case may be, the first voting period for deputy Presiding Officer, nominate a candidate for appointment as the Presiding Officer or a deputy Presiding Officer by submitting a written nomination to the Clerk. A nomination shall be valid only if it is seconded by another member.

4. The vote at an election shall be by secret ballot and shall be held during the voting period appointed under Rule 3.2 or 3.3. Where there is more than one candidate, there may be more than one round of voting in accordance with paragraphs 13 to 18.

5. The result of any vote under this Rule is valid only if the number of members who voted is more than one quarter of the total number of seats for members. For this purpose, in calculating the number of members who voted—

(a) account shall be taken not only of those voting for or against a candidate, but also of those voting to abstain; and

(b) where there is more than one round of voting the result of each round of voting shall be treated as a separate result and the number of members who voted shall be taken to be the total number who voted in that round.

If the result of any vote at an election is invalid under this Rule, no candidate shall be elected at that election.

6. Each candidate may appoint a member to act as a scrutineer on that candidate’s behalf. Each scrutineer may monitor the counting of votes by the Clerk and may request the Clerk to perform a count again. The Clerk may refuse such a request only if the Clerk considers it unreasonable.

7. Members may participate in the election of the Presiding Officer or any deputy Presiding Officer in person or remotely by video conference hosted on such platform as may be provided by the Parliamentary corporation.

8. Any member may, at the beginning of a round of voting, obtain a ballot paper from the Clerk, either in person or, where a member is participating remotely, by electronic means.

9. Any member who obtains a ballot paper in person shall immediately mark that member’s vote on that ballot paper and then put the ballot paper in the ballot box provided for that purpose by the Clerk. That member may not thereafter obtain another ballot paper or vote during that round of voting.

10. Where a member is participating remotely, the Clerk shall facilitate the process and in doing so shall ensure the secrecy and confidentiality of it. The member shall use such platform as may be provided by the Parliamentary corporation for this purpose.

11. Any member participating remotely shall obtain a ballot paper from the Clerk by electronic means. Once the ballot paper has been received, the member shall immediately indicate to the Clerk the voting intention of that member. The Clerk shall mark that member’s vote on a ballot paper in accordance with that member’s voting intention, verify with that member that the ballot paper has been marked correctly and then put the ballot paper in the ballot box provided for that purpose. That member may not thereafter obtain another ballot paper or vote during that round of voting.

12. Where there is only one candidate in a round of voting, a member may vote for or against that candidate or to abstain. At the completion of that round of voting the Clerk shall count the votes and inform the person chairing the meeting of the number of votes for the candidate, the number of votes against the candidate and the number of votes to abstain. The candidate shall be elected if a simple majority of votes in the candidate’s favour is obtained.

13. Where there is more than one candidate in a round of voting, a member may vote for one of those candidates or to abstain. At the completion of each round of voting in which there is more than one candidate, the Clerk shall count the votes and inform the person chairing the meeting of the number of votes for each candidate and the number of votes to abstain.

14. Where there are two candidates in a round of voting, a candidate shall be elected if a simple majority of votes in that candidate’s favour is obtained.

15. Where there are more than two candidates in a round of voting and the number of votes for one candidate exceeds the total number of votes for all the other candidates, that candidate shall be elected.

16. Where there are more than two candidates in a round of voting but no candidate is elected under paragraph 9, the candidate or candidates with the smallest number of votes shall be eliminated and there shall then be a further round or rounds of voting until—

(a) a candidate is elected in accordance with paragraph 12, 14 or 15;

(b) paragraph 17 applies; or

(c) the result of any vote is invalid under this Rule.

17. Where in any round of voting the candidates all receive the same number of votes no candidate shall be elected at that election.

18. A candidate may withdraw that candidate’s candidature at any stage between the rounds of voting mentioned in paragraphs 13 to 16.

19. In counting the votes, the Clerk may disregard any ballot paper if, in the Clerk’s opinion, it does not clearly indicate the voter’s choice.

20. When a candidate has been elected in accordance with this Rule the person chairing the meeting shall announce the name of the candidate who has been elected. The person chairing the meeting shall also announce—

(a) after the count in a case where the provisions of paragraph 12 apply, the number of votes for and against the candidate and the number of votes to abstain; and

(b) after the count in any other case, the number of votes for each candidate, the number of votes to abstain and the name of any candidate who has been eliminated at that round.

21. Where no candidate is elected at an election held in accordance with this Rule, the person chairing the meeting shall announce that fact and arrange for another election to be held as soon as possible. The Clerk shall notify members of the day and time appointed for the voting period at that election.

21. Following a declaration that a candidate has been elected or that no candidate has been elected, the Clerk shall destroy all the ballot papers.

22. Where provisions contained in this temporary rule are in conflict with other standing order provisions, those in the temporary rule have precedence.

Temporary Rule 2

Oath of allegiance

1. This Rule applies to the administration of the oath of allegiance or a solemn affirmation at the beginning of Session 6. It ceases to apply on 30 June 2021.

2. Every person who is returned as a member shall take the oath of allegiance or shall make a solemn affirmation at a meeting of the Parliament before the Clerk. Taking the oath of allegiance or making a solemn affirmation can include appearing before the Clerk remotely by video-conference, hosted on such platform as may be provided by the Parliamentary corporation. A member shall not take part in any other proceedings of the Parliament until that member has done so.

3. A member may, immediately after taking the oath or making a solemn affirmation, repeat the oath or affirmation in a language other than English.

4. The member shall then sign a register kept by the Clerk for the purpose, indicating that the member has taken the oath or, as the case may be, made a solemn affirmation. Where a member has taken the oath of allegiance or made a solemn affirmation remotely, they shall sign the register at the earliest possible opportunity after doing so.

5. The Parliament’s power under section 84(3) (where a member fails to take the oath of allegiance) to decide, before the end of the period of two months within which a member must take the oath or make a solemn affirmation, to allow that member a longer period to do so is exercisable on a motion of any member. The motion is valid only if it is seconded by another member.

6. In these Rules, “oath of allegiance” means the oath in the form provided in section 2 of the Promissory Oaths Act 1868 (c.72) and “solemn affirmation” means the affirmation in the form provided in section 6(1) of the Oaths Act 1978 (c.19).

7. Where provisions contained in the temporary rule are in conflict with other standing order provisions, those in the temporary rule have precedence.

Temporary Rule 3

Access to the public gallery

1. In light of the ongoing public response to the Novel coronavirus COVID-19, members of the public shall not be admitted to the public gallery during any meeting of the Parliament from the date of dissolution until either such time as the newly elected Parliamentary corporation has taken a decision on public access to the Parliament, Holyrood or 30 June 2021, whichever is the earlier.

2. Notwithstanding paragraph 1, the Presiding Officer may decide to admit members of the public to the public gallery in advance of those timescales if relevant legislation and public health guidance allow for it.

3. Where provisions contained in the temporary rule are in conflict with other standing order provisions, those in the temporary rule have precedence.

(B) that, where provisions contained in the temporary rules are in conflict with other standing order provisions, those in the temporary rules have precedence.

That the Parliament agrees that the Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Amendment (No. 16) Regulations 2021 (SSI 2021/86) be approved.

That the Parliament agrees that the Budget (Scotland) Act 2020 Amendment Regulations 2021 [draft] be approved.

That the Parliament agrees that the Disability Assistance for Children and Young People (Scotland) Regulations 2021 [draft] be approved.

That the Parliament agrees that the Scottish Landfill Tax (Standard Rate and Lower Rate) Order 2021 (SSI 2021/89) be approved.

That the Parliament agrees that the Scottish Parliament (Elections etc.) Amendment (Coronavirus) Order 2021 [draft] be approved.

That the Parliament agrees that the Social Security (Up-rating) (Miscellaneous Amendment) (Scotland) Regulations 2021 [draft] be approved.

That the Parliament agrees that the Social Security Up-rating (Scotland) Order 2021 [draft] be approved.

That the Parliament agrees that the Social Security Information-sharing (Scotland) Regulations 2021 [draft] be approved.

That the Parliament agrees that the Health Protection (Coronavirus) (International Travel) (Managed Accommodation and Testing etc.) (Scotland) Amendment Regulations 2021 (SSI 2021/107) be approved.

That the Parliament agrees that the Health Protection (Coronavirus) (International Travel) (Scotland) Amendment (No. 7) Regulations 2021 (SSI 2021/111) be approved.

That the Parliament agrees that the Health Protection (Coronavirus) (International Travel) (Scotland) Amendment (No. 6) Regulations 2021 (SSI 2021/81) be approved.

That the Parliament agrees that the Plant Health (EU Exit) (Scotland) (Amendment) Regulations 2021 [draft] be approved.

That the Parliament agrees that the Local Government Finance (Scotland) Order 2021 [draft] be considered by the Parliament.

The Presiding Officer

That concludes decision time. We will shortly move on to members’ business, in the name of Gil Paterson, on the 80th anniversary of the Clydebank blitz. First, we will have a short pause to allow some members to change seats. Members should follow the one-way systems, wear their masks and make sure that they observe social distancing rules.