Domestic Abuse (Scotland) Bill: Stage 2
Under agenda item 3, we have the only planned day of stage 2 proceedings on the Domestic Abuse (Scotland) Bill. There are 22 amendments—including, unusually, some amendments to amendments—and for the purpose of debate they have been organised into five groups.
I welcome Rhoda Grant MSP and her adviser, and also the Minister for Community Safety and his officials. The advisers who accompany Mr Ewing and Ms Grant have no locus to speak during the meeting, but their attendance is welcome. We do not expect any other MSPs to attend. Members should have their copies of the bill, the marshalled list, and the groupings of amendments for consideration.
Section 1—Amendment of the Protection from Harassment Act 1997
Section 1 is on non-harassment orders in cases of domestic abuse. Amendment 1, in the name of Rhoda Grant, is grouped with amendments 2, 3 and 8.
I want to put on record my thanks to the minister and his team for their assistance in drafting many of the amendments and for their help with technical issues. We have reached consensus on many issues. Where we have not done so, at least we have shared aims and can put forward alternatives to the committee for consideration.
Amendments 1 and 2 are technical amendments to tidy up the language in the bill. Amendment 1 amends the definition of conduct by removing the reference to “in a specified” place to make it clear that a person’s presence in a certain place may be conduct that amounts to harassment. Amendment 2 tidies up the language by making a change from “pursued” to “engaged in”.
Amendments 3 and 8 relate to the definition of domestic abuse. After taking further evidence, it became clear that the majority wished us to remove the definition of domestic abuse from the bill. Those who responded were clear that the legal process already used the ordinary meaning of domestic abuse without problem. We consulted the minister’s department, as well as the Lord Advocate and the Crown Office and Procurator Fiscal Service. It became clear that the issues surrounding the definition were complex. For section 1, the issue is quite straightforward: a non-harassment order has the same consequence when granted regardless of the route that has been taken to obtain it; the bill changes the route, not the outcome. By not defining domestic abuse, we leave it to sheriffs to use their judgment on whether the case in point is, or is not, domestic abuse. However, the definition has implications for section 3, which we have sought to remedy by amendment; I will speak to those amendments when we reach consideration of section 3.
Amendment 8 deletes the definition of domestic abuse in section 4. Amendment 3 is a consequential amendment on amendment 8, to remove the reference to the definition in section 1.
I move amendment 1.
I indicate my support for all the amendments that Rhoda Grant has lodged in the group. As she outlined, she has taken account of the stage 1 evidence and debate. She has also had discussions with the minister’s department and the Lord Advocate and has taken on board the complications of including such an extensive definition of domestic abuse in section 4. The approach that she has taken is reasonable, as is the case with the amendments that we will consider later.
I, too, indicate support for Rhoda Grant’s amendments in the group. The amendments relate to a difficult part of the bill; there are good arguments on both sides. The evidence that she received and the stage 1 debate in particular were helpful in bringing to the fore some of these points, including those on the difficulty of the definition. Rhoda Grant was right to lodge the amendments in the group. I support them.
The issue concerned me, not because I had any particular issues about the direction of travel—far from it—but because of definitional problems that could have arisen. I am pleased about the discussion and progress towards what I regard as a satisfactory outcome. That is, of course, dependent on what the minister says.
Thank you, convener. I am pleased to work with Rhoda Grant, precisely as she has indicated. At the stage 1 debate, I said that we were happy to do that. Both Rhoda Grant and the Government were helped considerably by the committee report, which was extremely useful. We have met Rhoda Grant and her advisers to discuss amendments. As she said, we agreed on a great many of them; where we disagreed, we reached a clear understanding of the lines of disagreement. I thank Rhoda Grant and her supporters for that co-operative approach, which will help us considerably to focus on the issues that we are considering today.
I would like to respond at some length, to read into the record important matters that apply and to indicate why we support all the amendments.
I begin with amendment 1. Section 1 of the bill inserts new section 8A into the Protection from Harassment Act 1997. Section 8A is based on existing section 8 of the 1997 act but makes some modifications. The most significant difference is that section 8A does not refer to a “course of conduct”. The new section also includes a revised definition of conduct, which could include just being in certain locations, such as outside the victim’s home or workplace, or the school that the victim’s children attend. Such conduct might or might not involve speech.
After considering the drafting, we concluded that the definition of conduct did not need to refer to
“speech and presence in a specified place or area”.
Instead, it is sufficient for the definition just to say what it intends to cover. Amendment 1 therefore provides that “conduct” includes “speech” and
“presence in any place or area”.
I turn to amendment 2. Proposed section 8A of the 1997 act is based on section 8 and applies many of the provisions of section 8, with modifications. Section 8(1) of the 1997 act provides that
“a person must not pursue a course of conduct which amounts to harassment”.
By contrast, proposed section 8A(1) provides that
“a person must not engage in conduct which amounts to harassment”.
However, section 8(4)(b) has not been modified to refer to conduct being “engaged in” rather than “pursued”. Amendment 2 makes that modification, which improves the consistency of the language.
The Government also supports amendments 3 and 8, although those amendments relate to one of the most difficult areas of the bill: namely, whether or not a definition of domestic abuse is required. Allusion has already been made to that issue. I understand why the bill as introduced included a definition of domestic abuse in section 4, so there was clarity on what was meant. However, the definition attracted adverse comment from witnesses at stage 1. The Government agreed that it was too wide and could dilute the focus on abuse within a relationship. However, I considered that there was a strong argument for a definition, given that the bill criminalises breaches of some interdicts.
I believe that we have reached a sensible solution. The definition of domestic abuse was not supported by witnesses and will be removed by amendment 8. However, amendment 5 in my name, which is in the third grouping of amendments, to which we will turn later, outlines which interdicts are to be covered by section 3 and provides the clarity that is needed in relation to criminalisation. The term “domestic abuse” is also used in section 2, but amendment 4 in my name, which is in the second grouping of amendments, would remove section 2.
Amendment 3 means that the term “domestic abuse” in proposed section 8A of the Protection from Harassment Act 1997, which is to be inserted by section 1 of the bill, will not be defined and will take its ordinary meaning. That may not be a perfect solution. It will place the onus on the courts to determine what is domestic abuse for the purposes of section 8A. However, the key point is that amendment 5 in my name will provide the clarity that is needed on exactly when a breach of an interdict is to be criminalised.
On that basis, we support amendments 3 and 8, as well as amendments 1 and 2.
I invite Rhoda Grant to wind up and to indicate whether she will press or withdraw amendment 1, although the answer is fairly self-evident.
Indeed. There is no reason for me to make further comment at this point.
Amendment 1 agreed to.
Amendments 2 and 3 moved—[Rhoda Grant]—and agreed to.
Section 1, as amended, agreed to.
Section 2—Amendment of the Legal Aid (Scotland) Act 1986
Section 2 amendments are on the provision of civil legal aid in cases of domestic abuse and the monitoring of such provision. Amendment 13, in the name of Rhoda Grant, is grouped with amendments 4, 14 and 12.
There is anecdotal evidence that, because of financial constraint, victims of domestic abuse are not able to access the protection that is available. That was highlighted in evidence at stage 1. There is no empirical evidence of that because the rules have changed since the evaluation of the Protection from Abuse (Scotland) Act 2001 took place, meaning that the findings are out of date. At that time, almost 40 per cent of victims said that they had experienced difficulty in making a contribution to their legal aid.
The minister and the committee—in its stage 1 report—have made it clear that they do not support section 2. Amendment 13 is, therefore, a compromise that seeks to grant emergency legal aid to victims who are unable to protect themselves, either because they cannot apply for legal aid or because they do not have access to their own resources. Amendment 13 makes it clear that those who obtain this assistance but do not qualify under ordinary circumstances must repay any sums due when they are able to safely access their resources. That means that they can access the protection immediately, but there will be no long-term cost to the public purse.
The minister informs me that that is the case under current legal aid rules, but anecdotal evidence suggests that it does not always happen in practice. Amendment 13 puts that protection in the bill to ensure that everyone is aware that they can get support.
Amendment 14 puts a duty on the Scottish Legal Aid Board to report on the availability of access to legal services. The Government placed a similar duty on the Legal Aid Board in the Legal Services (Scotland) Act 2010, but amendment 14 puts a timeframe on the report and also ensures that it is laid before the Parliament. Ministers have the power to effect the provisions in section 2 of the bill. Amendment 14 would provide them with the information required to allow them to decide whether to do that. It would also allow for that information to be scrutinised by the Parliament.
Amendments 13 and 14 are not my preferred option. I would have preferred the solution that was proposed in the bill, but I am trying hard to reach a consensus.
Amendments 4 and 12, in the name of the minister, seek to remove section 2 without offering further protection.
I move amendment 13.
Amendments 4 and 12 delete section 2 from the bill and make a consequential amendment to the long title. The Government has been opposed to section 2, which removes the legal aid means test, throughout the bill proceedings, as committee members will recall from stage 1. We have concerns about costs, which might range up to £1.5 million per year. We also have concerns about how section 2 would work when an action covers a domestic abuse civil protection order and other matters such as divorce, or contact and residence orders. So there are two general concerns: costs, and the impact on cases in which there are many other craves and issues in dispute and how that will work in practice, as the committee will remember from the persuasive and practical evidence that it took from the Law Society and the SLAB. Accordingly, the committee expressed some of its concern about section 2 in its stage 1 report.
Rhoda Grant lodged amendment 13, which would also remove section 2, and I appreciate that there has been a spirit of compromise; I alluded to that earlier. However, amendment 13 would also introduce substantial further provisions. Regrettably, the Government does not support amendment 13 for a number of reasons. We are concerned that it lacks clarity. There is also a possibility that it might make matters worse for victims rather than better, which is obviously not intended, but sometimes unintended consequences can arise.
The first proposal in amendment 13 is that the SLAB would have to make legal aid available in the absence of an application, or without an application being determined, subject to three conditions being met. The conditions are set out in amendment 13 as conditions A, B and C—probabilis causa and other provisions. However, without an application, it is unclear how the board could satisfy itself that those three conditions have been met. An application would, by definition, be necessary for the board to be satisfied that the three conditions had been met.
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Even if the board could make those assessments, it might take longer than the current special urgency arrangements. I know that delay is most certainly not what is intended; in fact, I imagine that it is the opposite of what is intended. Any delay in the accessibility of legal aid in these circumstances can be a matter of severe concern for females, in particular, who are likely to be the pursuer seeking legal aid for these purposes.
The current special urgency arrangements allow a solicitor in a set number of circumstances, which include moving for an order for a power of arrest, to carry out especially urgent work without consulting the board. Solicitors are merely required to tell the board within 28 days of starting the work that they have done so. That is the point at which the board makes the determination as to whether, at the time the work was undertaken, there was a probable cause and it was reasonable in the particular circumstances of the case.
Condition B as proposed in amendment 13 is either that documents cannot safely be accessed or that the work is required as a matter of special urgency. That could suggest that the procedures might apply in cases where there is no special urgency, although I am not sure that that is the intention.
Amendment 13 would require the board to disregard any resources if a person was unable to access them safely. In current law and practice, if someone has had to flee the home, the board can assess them as having no resources for legal aid purposes. I heard Rhoda Grant say that anecdotal evidence suggests that that might not happen. The fact is that it can happen. If there is a difficulty, I submit that it is a difficulty of practice and procedure, rather than one that requires legislative change. In any event, that is different from making a judgment about what is safe. Amendment 13 might make matters less clear for the victim than they are under the current system, whereby, as I said, the board can assess someone as having no resources for legal aid purposes if they have had to flee the home. That is a practical and real dilemma for many females, in particular. Rhoda Grant is quite right to seek to bring the issue to the Parliament in this way.
The Scottish Legal Aid Board has produced a comprehensive statement of its support for victims of domestic abuse, which I have sent to Rhoda Grant. Part of that is a duty, which at my instigation was inserted into the Legal Services (Scotland) Bill, to monitor the availability of legal aid throughout Scotland—a proactive duty incumbent on the SLAB for the very first time.
Although we entirely sympathise with the objectives, it is for those reasons, as well as our concerns on financial grounds, that we consider amendment 13 unnecessary and potentially confusing.
Rhoda Grant’s amendment 14 relates to the changes made, but not yet commenced, to the Legal Aid (Scotland) Act 1986 by section 141 of the Legal Services (Scotland) Act 2010. Once commenced, section 141 of the 2010 act will give the board the function of monitoring the availability and accessibility of legal services.
Amendment 14 would introduce a separate and express requirement on the board to report on the availability and accessibility of legal services for persons seeking civil protection orders in relation to domestic abuse. It would also require ministers to lay that part of the report before the Parliament. With respect, I do not believe that those additional requirements are necessary to help implement the board’s new role in reporting on the availability and accessibility of legal services. The board is setting up an access to justice reference group. Members might recall our discussions on this matter in relation to the Legal Services (Scotland) Bill and my determination—I am not sure that I can use the word “insistence”, because I cannot insist that the board do anything—and strong wish that the board include Scottish Women’s Aid on that forum. I am pleased to say that Scottish Women’s Aid has been invited to join the group. The Government already recognises that access to justice for domestic abuse victims is important. Adding further specific duties and burdens may risk creating unnecessary work for no discernible benefit.
For those reasons, I invite the committee to reject amendments 13 and 14 and to agree to Government amendments 4 and 12.
I substantially agree with the minister on these matters. It is important that people who suffer domestic abuse should have urgent access to legal aid as required. I do not dissent from Rhoda Grant’s objective in all this, but, as the minister rightly says, the legal aid provisions already provide that, when there is difficulty in accessing documents and there is an urgent need to do so, certain resources can be disregarded. There ought to be a rule that we do not legislate when legislation already exists to deal with something. If there are technical problems, the on-going discussions between Rhoda Grant and the minister will take that forward if appropriate and changes can be made to the legal aid regulations and/or practice as required. Therefore, aside from the technical deficiencies of the amendment—which I had spotted, although not to the same extent as the minister, who has identified a number of points—I do not think that such a provision is the way forward.
On the question of the report, I do not think that there is anything more to be said. We have dealt with the matter already and there is no point in gilding the lily. We have heard that there has been an advance in terms of the inclusion of Scottish Women’s Aid on the panel.
For those reasons, I share the minister’s opposition to Rhoda Grant’s amendments.
I support Rhoda Grant’s amendments 13 and 14. She has taken a pragmatic view on section 2. Concerns were expressed in evidence and in debate about singling out domestic abuse victims for priority in legal aid applications, specifically against the backdrop of a contracting legal aid budget. Rhoda Grant’s amendments acknowledge those concerns. She set out her position strongly at stage 1 and clearly still supports those arguments, but she wants the bill to be passed by the Parliament; therefore, she proposes to remove section 2.
The guidelines on support that she seeks to put in statute already exist, although there is a difference of opinion between Rhoda Grant and the minister as to the practical effect of putting them in statute. However, at this stage, I am persuaded by her argument that the current arrangements are not given sufficient priority and focus. Including them in the bill will, I hope, give domestic abuse victims access to legal aid funds in appropriate circumstances.
There have been comments about some technical aspects of amendment 13. However, we are only at stage 2 and Rhoda Grant’s policy intention is a reasonable one. If there are ways of improving the provision at stage 3, I am sure that she would be open to that.
I also support amendment 14, which requires a report to be laid before the Parliament. Domestic abuse is a serious and high-profile issue, and there is cross-party support for the Parliament taking action on it. What Rhoda Grant seeks to do is in line with the support that we have seen in the Scottish Parliament for not only highlighting our concern, but monitoring domestic abuse victims’ access to legal aid. We need to ensure that that is taking place adequately and, if it is not, bring forward further measures to address the issue.
I very much agree with Rhoda Grant’s intention in introducing the bill and I, too, hope that it will have positive, practical effects. For the reasons given by the minister and Robert Brown, however, amendment 14 is unnecessary. The expert group, which includes Scottish Women’s Aid, has a clear direction of travel that is welcome.
On amendment 13, I will not rehearse the arguments in the stage 1 report and debate, which made clear the committee’s view. I accept James Kelly’s point that if there are any technical flaws, they can be tidied up at stage 3. My problem with amendment 13 is that Rhoda Grant may well have identified a problem in the practical, day-to-day implementation of the rules, but I do not believe that amendment 13 is the solution to that problem. The solution is for us to focus on the problem and go from anecdotal evidence to proper, solid, researched evidence and ensure that the practical difficulties are resolved so that women are not left in a position that would, I am sure, be abhorrent to us all—that must not happen. I think that the rules are in place to deal with that situation; if they are not being properly implemented, that is what must be focused on and dealt with. That can be done without legislation, so I do not support amendment 13.
It was clear at the stage 1 debate that there were difficulties with regard to section 2. Rhoda Grant has clearly recognised that, because amendment 13 would remove section 2 and substitute a wording that Rhoda Grant feels would assure what we all want, namely that the victims of this type of crime will have easy and ready access to legal aid. When someone is concerned enough to take the trouble to try to come up with a satisfactory solution, as Rhoda Grant has done, it is incumbent on us all to give the matter the greatest consideration. I have given the matter considerable thought, I can assure you, but the difficulty with amendment 13 is that it would make the situation less clear. There is also a cost implication, because I am not naive enough to think that all the costs would be recovered, despite amendment 13’s provisions in that regard. As I said, a lot of work has gone into amendment 13, but at the end of the day I cannot be persuaded that it is the appropriate way forward.
I can see amendment 14’s direction of travel, but the problem that it addresses is remedied by the fact that the regulations that will apply to the Scottish Legal Aid Board will enable the appropriate figures and the monitoring of the situation to be well scrutinised by members of the Scottish Parliament. On that basis, I am not minded to support amendment 14, either, although I acknowledge the thought process behind the amendment.
Amendment 4, which of course is the minister’s amendment, will remove section 2 simpliciter. I am persuaded that that is the way forward.
I ask Rhoda Grant to wind up and indicate whether she will press or withdraw her amendments.
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I have listened carefully to the committee’s and the minister’s comments. I am also grateful to the minister for putting on record the current situation, which is very helpful. Obviously, I do not wish amendment 13 to build in delays in the current process, so I intend to withdraw it and consider the matter further to see whether a similar amendment will be required at stage 3.
On amendment 14, I obviously welcome the fact that Scottish Women’s Aid is now on the access to justice reference group. I am very pleased about that, but there is a large amount of anecdotal evidence about access to justice and I am not convinced that the approach will entirely solve the problem. I need to reflect on the issue. I will consider whether it is possible to amend the legislation on legal services to make it clear that the access to justice reference group must look at and report separately on domestic abuse. During my work on the bill it has been clear that the evidence on domestic abuse is muddled, because it is mixed with a range of factors and it is difficult to pull out figures that relate only to domestic abuse.
I welcome further discussions with the minister. I intend not to move amendment 14 and to reserve my position until stage 3. I ask the committee to defer amending the long title of the bill until then.
Let us deal with matters as we get to them. Believe me, it will make life simpler.
Amendment 13, by agreement, withdrawn.
Amendment 4 moved—[Fergus Ewing]—and agreed to.
After section 2
Amendment 14 not moved.
We move on to interdicts, breach of which is an offence. Amendment 15, in the name of Rhoda Grant, is grouped with amendments 15A to 15C, 16, 5, 5A, 17, 7 and 18. I draw members’ attention to the pre-emption information in the groupings paper.
I will explain the background to the amendments. The committee and the minister supported the policy objectives of section 3 at stage 1, but there were a number of issues to resolve, not least the definition of domestic abuse. We discussed the issue with the minister and his team and we consulted the Lord Advocate and the Crown Office and Procurator Fiscal Service, and three issues became apparent.
First, we need to name or identify the interdict at an early stage, so that everyone who is involved knows without doubt that it is an interdict, breach of which is a criminal offence.
Secondly, there are complications to do with the relationships that are covered and how we define a boyfriend-girlfriend relationship. The definition in section 4 refers to
“a partner in an established relationship of any length”.
The whole definition has been unpopular, and the phrase “of any length” did not find favour anywhere. Boyfriend-girlfriend relationships are covered by the Protection from Abuse (Scotland) Act 2001 and not to include them in the bill would be to take a retrograde step.
Thirdly, currently the power of arrest in interdicts is time limited—it lapses after a set period of time—so protection under the bill would also cease. After a great deal of reflection, the bill team thought that the best approach would be to introduce a new interdict, called a domestic abuse interdict. Naming the interdict would provide clarity, because it would be obvious to everyone that breach of such an interdict would be a criminal offence. The criminal offence of breach of the new interdict would not cease when the power of arrest expired.
Amendment 15, which provides for the new interdict, includes a definition of a boyfriend-girlfriend relationship. Amendments 15A to 15C are designed to give the committee a choice of definition. My favoured option is in amendment 15 and is:
“a partner in an established relationship of a non-platonic nature with B”.
It is clear from the definition that the relationship might not involve sexual intercourse but is a romantic relationship. It does not depend on marriage, civil partnership or cohabitation.
The option in amendment 15A is:
“a partner in an established relationship with B”.
That does not include the offending phrase “of any length”, which is in section 4. It uses the definition that is used in the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005.
Amendment 15B offers the option of A being
“in a sexual relationship with B”
which, under amendment 15C, is defined as
“a relationship”
that
“need not involve sexual intercourse”.
That definition is currently used by the legal system with regard to sexual assault.
Amendment 16 ensures that the new interdict has to be served before it comes into force and that from that time any breach is a criminal offence.
Amendment 5, in the name of the minister, deals with the same issues. As I have said before, I believe that although we have the same goals, we have different ways of reaching them, and I am concerned that amendment 5 will cover only those people who are in formalised relationships or are cohabiting. In 2009-10, the reported incidence of domestic abuse decreased in every age group apart from the under-18s—the group in which relationships are most likely to be of the boyfriend-girlfriend type—and I simply do not believe that we can leave people in that situation unprotected.
Moreover, amendment 5 does not name the interdict, recognise its difference from other interdicts or deal with the problem of lapsing powers of arrest. By lodging amendment 5A, I have sought to amend amendment 5 to include boyfriend-girlfriend types of relationships by using the definition set out in the lead amendment. Amendment 18 makes clear on the interdict the expiry date of the powers of arrest and that, while the powers of arrest are in force, any breach of the interdict is a criminal offence. However, even with those changes, we are not clear whether amendment 5 is actually the best way forward and I urge the committee to support amendment 15 instead.
Amendment 17 is consequential on amendment 15 and ensures that the new interdict is penalised.
I move amendments 15 and 15A.
I am most happy to consider the anecdotal evidence and other issues that the member in charge mentioned in relation to the previous group and will also ask SLAB to detail what it is doing to implement the duties that are incumbent on it. That might help both the member in charge and the committee.
Amendments 5 and 7, which are in my name, provide crucial clarity on when breach of an interdict is a criminal offence. Amendment 5 adjusts section 3 to define more clearly and limit the circumstances in which it will be a criminal offence to breach an interdict and to make it an offence to breach any future interdict with a live power of arrest that protects a person from abuse by their current or former spouse, civil partner or cohabitee. It retains the need for a power of arrest to be attached under the Protection from Abuse (Scotland) Act 2001 and, in addition, to apply only to interdicts that are granted once section 3 comes into force. Amendment 5 limits the categories of interdict to which section 3 applies by reference to the normally accepted categories of partners—in other words, spouses, civil partners and cohabiting couples. I will come to Rhoda Grant’s point in a moment, but we believe that our amendment 5 provides the required certainty and does not dilute our focus on domestic abuse by casting the net too widely. Amendment 7 clarifies that it is an offence to breach an interdict to which section 3 applies.
I am happy to consider further with the member in charge and before stage 3 the issues that she has raised in her amendments. However, we have some concerns, and it would be useful to set them out on the record and for the benefit of members who are taking part in this important debate. Amendments 15 and 16 make it an offence to breach an interdict that protects a person from domestic abuse by a partner in an established relationship of a non-platonic nature and prohibit that partner from entering or remaining in a place, for example the family home. Amendments 15A and 15B offer alternatives, and amendment 15C sets out what a sexual relationship is.
Amendment 5A seeks to amend Government amendment 5 by extending it to a partner in an established relationship of a non-platonic nature. I understand what the member in charge of the bill is trying to do. I can see the argument that people in other types of relationships—people who are not married, civil partners or cohabitants—might require to be protected in a similar way. We all probably accept that argument, but the difficulty lies in establishing what distinguishes people in those other types of relationships from people who are not in them. The fact that Rhoda Grant has offered drafting alternatives shows that there are difficulties in that area.
What is “non-platonic”? What is “established”? Indeed, what is “a sexual relationship”? We all know—especially the lawyers among us—that litigation is made of the interpretation of such phrases. Phrases such as “non-platonic” and “a sexual relationship” leave much scope for complicated arguments to be made by defence lawyers in criminal proceedings, in which all of us—including non-lawyers—know that matters of definition are key.
In Government, we wrestled with concepts such as intimate relationships and boyfriends and girlfriends, and concluded that it was difficult to go down that route because of the need for clarity on when a breach of an interdict becomes a criminal offence and because adopting a wider approach would, as I have said, reduce the focus on domestic abuse. In domestic abuse, the vulnerability of the victim might result from emotional, financial or physical dependency; a devotion to protect others, for example children; or a variety of those factors. Such aspects may feature more strongly in the context of relationships in which individuals are living or have lived together.
We have other concerns about the amendments. Subsection (1) of the new section that amendment 15 proposes to insert would apply only to an interdict that was granted on the application of the person who sought to be protected, but it is possible that an interdict would be sought on their behalf. Subsection (2)(a) of the new section refers to interdicts that are granted for the purpose of protecting against domestic abuse, but it may not be clear what is covered by that. In addition, an interdict that was granted for the purposes of subsection (2)(b) of the new section would not necessarily protect against domestic abuse.
It appears from amendment 16 that the intention is that a breach of an interdict to which section 3 applies will be a criminal offence, regardless of whether a power of arrest was attached to it, but amendment 18 provides that notifications of powers of arrest will have to include
“a statement that, while the power of arrest is in effect, breach of the interdict is an offence”.
Therefore, it appears that amendments 16 and 18 are contradictory. However, I share Rhoda Grant’s policy aim in amendment 18 of providing as much clarity as early as possible on when a breach of an interdict is a criminal offence. I emphasise that, as I have said, my officials and I are happy to discuss further with her how we can provide such clarity. Amendment 18 contains many useful ideas, which I wish to follow up with her.
To sum up, I ask the committee to note that I will discuss further with the member in charge of the bill the issues relating to abuse of people who are not married, are in a civil partnership or are cohabiting, and the ideas behind amendment 18 on how to provide clarity at an early stage on when breach of an interdict will be a criminal offence. On that basis, I invite the committee to reject amendments 15, 15A to 15C, 16, 5A, 17 and 18, and to agree to Government amendments 5 and 7.
This is an extraordinarily difficult area, as we all know. We are faced with an almost bewildering number of alternatives, which does credit to Rhoda Grant’s attempts to get a definition that will work. The minister’s offer to consider further the issues that amendment 18 addresses, not least the time limit on the power of arrest, is helpful and I support it.
At least from my perspective, the phraseology about the non-platonic nature of relationships and the stuff—for goodness’ sake—in amendment 15C, which tries to define in almost obscene detail what a sexual relationship is, frankly do not lend themselves to any sort of judicial determination. In dealing with such issues, a clear-cut situation is required that is based on objective, outside evidence. Therefore, I do not think that the provisions are workable in practice.
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Rhoda Grant also used the odd phrase “romantic relationship”. I would have thought that the one thing that a domestic abuse situation would not be is romantic, although I understand what she is trying to get at in terms of the relationship’s not amounting to cohabitation. The minister has said that he will consider the issue.
There are several other minor points to mention. New subsection (2) in amendment 15 refers to the purposes of the interdict, but it is not entirely clearly whether
“protecting A from domestic abuse by B”
and
“prohibiting B from entering”
are alternatives. There could be odd consequences from that, one way or another. Furthermore, a definitional section that goes on for the best part of two pages does not add clarity for those who have to operate the matter in that kind of way. The same applies to some of the other things.
The minister’s definition deals in a traditional and satisfactory way with both same-sex and opposite-sex partnerships of the cohabiting variety as well as of the marriage variety. The fact that it refers to a person who is or was in such partnerships also covers situations in which people have split up. The situation that it does not entirely deal with, which Rhoda Grant has touched on, is that in which there has never been cohabitation but in which there may be issues of on-going harassment because one partner feels that they have power over the other partner in the relationship. It may be that that area simply cannot be dealt with in the bill because of its complexity, and there may be other ways of tackling it. The minister is going to consider that, and I will be interested in the outcome of the discussions.
I do not think that amendment 15 quite does the trick.
There is no doubt that this is a complex area and that we have a complex set of amendments, which leads on from the proposed deletion of section 4. The bill will not contain a definition of domestic abuse, and there will need to be further clarification of the interdict issue. Rhoda Grant has clearly wrestled with the matter and her amendments show the different thought processes that she has gone through on it, although her preferred option is amendment 15. There have been comments about the nature of the amendments, to which she will return in her summing up.
I have some sympathy with amendment 16, which would confer more wide-ranging powers and give greater protection to victims of domestic abuse.
Amendment 17 is preferable to amendment 7, as it specifies domestic abuse.
I note the minister’s comment that amendments 16 and 18 are contradictory. I hope that Rhoda Grant will reflect on that and continue the discussion if she feels that to be the case.
I support amendment 5, which deals with the problem of having to have a definition. It offers a tight definition of domestic abuse that most of us understand.
My problem with amendment 15 is to do with the wording in new subsection 1(d), which others have already mentioned. It refers to
“a partner in an established relationship of a non-platonic nature with B.”
I have some difficulty in understanding exactly how that would be understood. Unfortunately, although I understand why, it harks back to the wording in section 4(1)(a)(ii):
“a partner in an established relationship of any length”.
I can understand why the member in charge of the bill wishes to insert the wording in amendment 15, but my problem with that is the same problem that I had with the definition in section 4, which is that if we widen, we also weaken, and we will lose focus in our attempts to deal with domestic abuse. Amendment 15 is in danger of straying into that territory.
It would be difficult to define when a relationship crossed the line and a boyfriend-girlfriend relationship moved into the area of
“a partner in an established relationship of a non-platonic nature with B”,
where an assault would be domestic abuse as opposed to an assault of some other description.
The law protects people from assault in any relationship. I am more comfortable with that definition of how people are protected in a relationship, which applies irrespective of how long the two people have been going out. Whether they have had only the first date or the relationship has existed for several years, the two people are protected by the law in relation to any assault by one party on the other. We should not risk diluting our focus on domestic abuse by trying to include such relationships in the definition of domestic abuse. For that reason in particular, I do not support amendment 15.
Having heard Stewart Maxwell’s comments, I endorse everything that he has just said.
As has already been commented upon, we have before us a plethora of amendments that are predicated on the difficulties of definition. We anticipated that at stage 1. It is not easy to come up with a satisfactory definition. If it was, I would have lodged an amendment as well, but I could not find a wording that I considered appropriate. I would not in any way criticise anyone for coming up with a wording, because at least they could argue that they made an effort so to do, and in Rhoda Grant’s case she has done that in a most constructive manner.
However, a number of the amendments are fraught with difficulties of definition. As has been said, a relationship that is platonic to one person will not be so to someone else, and the definition of a sexual relationship is also subject to varying levels of interpretation. We are left trying to come up with an answer, but we might reflect that one would require the wisdom of Solomon to make such a determination.
I am not persuaded that amendment 15—which, as Robert Brown said, is lengthy and perhaps a little convoluted—is the answer, because the more room we make for misinterpretation or selective interpretation, the more problematic the situation becomes. At this stage—I stress that it is my view at this stage, because there is a dialogue still to be had—I am persuaded by the minister’s amendment 5. However, I heard what Ms Grant and Mr Ewing said about further discussion on the matter, and I direct them both down that route.
I ask Rhoda Grant to wind up and say whether she wishes to press or withdraw amendment 15A.
I am grateful to the committee for spending time on this issue, which I recognise is not straightforward. I am also grateful to the minister for saying that he will be happy to work with us further on the issue.
We drafted a long amendment because the issue needs clarity, and our amendment 15 at least tries to provide that. It is clear that amendments 5 and 15 have different approaches. Our amendment 15 seeks to create a new interdict and get rid of the confusion with the existing interdicts. That is the main difference between our approach and the minister’s. Neither of the amendments is retrospective.
My real concern, however, is about the nature of boyfriend-girlfriend relationships. Last year, 11,379 people in that category contacted the police regarding domestic abuse, which puts an onus on all of us to allow such people to be protected under the bill.
Domestic abuse is not always assault, and I note what members have said about assault being dealt with by the courts, but many of the victims do not currently receive satisfaction or protection through the courts. It is imperative that any amendment that the committee agrees to covers that type of relationship, otherwise we will fail those people. They are already covered by the Protection from Abuse (Scotland) Act 2001, and it is only right that they should have the further cover that the bill offers.
I am happy to work with the minister on these amendments to try to find solutions to the problem. I am happy for amendment 15 to be amended at stage 3 to make it workable, but there is a point of principle with regard to whether we create a new interdict or try to change interdicts that are already in statute. Those are two different approaches, and it would be helpful if the committee considered the amendments in that light. That would at least give us some guidance on how to move forward. I will press amendment 15.
We are talking about amendment 15A.
Can I withdraw amendment 15A?
We will come to amendment 15 in a moment. This is going to be complicated.
Amendment 15A, by agreement, withdrawn.
Amendments 15B and 15C not moved.
The question is, that amendment 15 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Butler, Bill (Glasgow Anniesland) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Kelly, James (Glasgow Rutherglen) (Lab)
Against
Aitken, Bill (Glasgow) (Con)
Brown, Robert (Glasgow) (LD)
Don, Nigel (North East Scotland) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
The result of the division is: For 3, Against 5, Abstentions 0.
Amendment 15 disagreed to.
Section 3—Breach of interdict with power of arrest
Amendment 16, in the name of Rhoda Grant, was debated with amendment 15. If amendment 16 is agreed to, I cannot call amendment 5, or as a consequence amendment 5A, on the grounds of pre-emption.
Amendment 16 not moved.
Amendment 5 moved—[Fergus Ewing].
Amendment 5A moved—[Rhoda Grant].
The question is, that amendment 5A be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Butler, Bill (Glasgow Anniesland) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Kelly, James (Glasgow Rutherglen) (Lab)
Against
Aitken, Bill (Glasgow) (Con)
Brown, Robert (Glasgow) (LD)
Don, Nigel (North East Scotland) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
The result of the division is: For 3, Against 5, Abstentions 0.
Amendment 5A disagreed to.
Amendment 5 agreed to.
The next group is on the maximum period of imprisonment on summary conviction. Amendment 6, in the name of Rhoda Grant, is the only amendment in the group.
12:45
Amendment 6 is technical and seeks to bring the bill into line with the Criminal Proceedings etc (Reform) (Scotland) Act 2007, which provides for a maximum penalty in summary proceedings of 12 months; as it stands, the bill provides for six months.
I move amendment 6.
We support this technical amendment, which we suggested.
So says the minister, with all due immodesty. I presume that you do not want to wind up, Ms Grant.
No.
Amendment 6 agreed to.
Amendment 17 not moved.
Amendment 7 moved—[Fergus Ewing]—and agreed to.
Section 3, as amended, agreed to.
After section 3
Amendment 18 moved—[Rhoda Grant].
The question is, that amendment 18 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Butler, Bill (Glasgow Anniesland) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Kelly, James (Glasgow Rutherglen) (Lab)
Against
Aitken, Bill (Glasgow) (Con)
Brown, Robert (Glasgow) (LD)
Don, Nigel (North East Scotland) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
The result of the division is: For 3, Against 5, Abstentions 0.
Amendment 18 disagreed to.
Section 4—Meaning of “domestic abuse”
Amendment 8 moved—[Rhoda Grant]—and agreed to.
Before section 5
The next group is on ancillary provision and commencement. Amendment 9, in the name of Rhoda Grant, is grouped with amendments 10 and 11.
I should say that the minister had some dealings with amendments 9, 10 and 11 in my name, too; he does not have to put that on the record himself.
Again, the amendments are technical. Amendment 9, which was requested by the Subordinate Legislation Committee, allows for ancillary provisions to be made under the affirmative procedure. Amendment 10 provides for those powers to commence once royal assent has been received. Amendment 11 allows for the bill to commence three months after the day on which the bill receives royal assent.
I move amendment 9.
The amendments appear to be fairly straightforward. Are there any other contributions?
I welcome amendment 9, bearing in mind the fact that a comment was made that a similar provision in the Long Leases (Scotland) Bill was the wrong way forward. It is crucial to have such provisions in legislation, and this is precisely the kind of bill for which they become so important, for precisely the reasons that are on the record. It is unlikely that we will find that we have missed nothing. It is almost certain that we will have to return to the legislation and we do not want to have to come back to primary legislation to pick up things that have been well discussed but which were simply missed on the way.
Against the background of that glowing endorsement, does the minister have anything to add?
We support these necessary and worthy amendments.
Ms Grant, do you feel the need to wind up?
No.
Amendment 9 agreed to.
Section 5—Short title and commencement
Amendments 10 and 11 moved—[Rhoda Grant]—and agreed to.
Section 5, as amended, agreed to.
Long Title
Amendment 12 moved—[Fergus Ewing]—and agreed to.
Long title, as amended, agreed to.
That ends stage 2 consideration of the bill. There is clearly still a bit of work to be done but, in view of the obvious goodwill that exists, I am confident that that can be achieved.
12:49
Meeting suspended.
12:53
On resuming—