Justice 2 Committee, 19 Sep 2001

Meeting date: Wednesday, September 19, 2001

Official Report 203KB pdf

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Protection from Abuse (Scotland) Bill: Stage 2

While everyone is settling in, let me introduce item 2 of this morning's agenda—the Protection from Abuse (Scotland) Bill. This is the Parliament's first committee bill, so the procedure is slightly different, but I am sure that, having survived so far, we will get to grips with it.

I welcome Christine Grahame and, on behalf of the committee, congratulate her on being chosen as the convener of the Justice 1 Committee. She is having a baptism of fire today. This morning, because the bill has been initiated by the Justice 1 Committee, Christine Grahame will be known as the member in charge.

On previous occasions when we have debated bills at stage 2, a minister has moved Executive amendments. That will not happen this morning, although the Deputy Minister for Justice, Iain Gray, is present and I am sure that he will speak to some of the amendments.

I propose not to go through the brief that explains the procedure for committee bills. The general procedures are known by everyone, so I think that we can get started. I remind those present that only members of the Justice 2 Committee may vote in any division.

Section 1 agreed to.

Section 2—Duration, extension and recall

Amendment 11 is grouped with amendments 13, 15 and 16.

It should not particularly concern us that there is a formidable list of amendments on the marshalled list this morning. These amendments seek to clarify what might be an inconsistency and to highlight one or two drafting matters that may cause problems.

Amendment 11 would insert the words

"the order granting the power of arrest"

in subsection (1) instead of the word "it", because "it" is not capable of being defined. The amendment would simply tidy that up. Amendment 13 works on the same principle. Amendment 15 would insert the words "an order granting" into the text to make things clearer. The same words would be inserted by amendment 16.

The amendments would have no import other than to tidy up the bill to make it more grammatically proper. They would remove all doubt about the meaning.

I move amendment 11.

If no member wishes to speak to amendment 11 or the other amendments in the grouping, I invite either Christine Grahame or the minister to speak.

This is certainly a departure for me; I could get used to sitting in the minister's chair.

Amendments 11, 13, 15 and 16 are directed at clarifying that the court order granting the power of arrest or extension will be served on the interdicted person. We do not think that the amendments are necessary, as the bill makes it clear that it is the power of arrest or its extension that requires to be served. It is quite clear that that means that a copy of the order made by the court that grants the application must be served. The drafting of the bill is in line with the equivalent provisions in the Matrimonial Homes (Family Protection) (Scotland) Act 1981, which simply refers to service of the interdict and the power of arrest, not to the court order. I invite Mr. Aitken to withdraw the amendments.

I support Christine Grahame's point. Although the amendments are well-intentioned, they are not required. The courts already have well-developed procedures for producing authenticated documents to be served on an affected person.

The amendments are necessary for reasons of clarity. Although I do not regard this to be a great issue, I feel that I should press amendment 11.

The question is, that amendment 11 be agreed to. Are we agreed?

No.

There will be a division.

For

Aitken, Bill (Glasgow) (Con)

Against

Barrie, Scott (Dunfermline West) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Stevenson, Stewart (Banff and Buchan) (SNP)

The result of the division is: For 1, Against 4, Abstentions 0.

Amendment 11 disagreed to.

Amendment 12 is grouped with amendment 14.

Amendment 12 seeks to give some clarity to section 2(1) by inserting the phrase "by the courts" at the end of the sentence. I am not being pedantic; I feel that there could be difficulties of interpretation. We are operating on the assumption that section 2(1) provides that the power of arrest becomes effective only in the terms outlined in the subsection. However, we should make it clear that the documents will be prescribed by the courts. The amendment is as simple as that.

I move amendment 12.

Amendments 12 and 14 seek to clarify that the court should prescribe the court documents that require to be served along with the court order. However, it is not the intention that the documents should be prescribed by individual courts. The amendments are also unnecessary because section 7 contains a definition of "prescribed" that requires the documents that are to be served to be set out in rules of court. That will ensure a consistent approach throughout Scotland and avoid any need for the court to list documents on each occasion it makes an order. I hope that Mr. Aitken feels able to withdraw amendment 12.

Minister, do you wish to speak to amendment 12?

No. Christine Grahame has once again made the points that we would wish to make. I hope that Mr Aitken withdraws amendment 12.

I feel that, in the interests of clarity and given that we are dealing with legislation, we should express the exact intention. As a result, I press amendment 12.

The question is, that amendment 12 be agreed to. Are we all agreed?

No.

There will be a division.

For

Aitken, Bill (Glasgow) (Con)

Against

Barrie, Scott (Dunfermline West) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Stevenson, Stewart (Banff and Buchan) (SNP)

The result of the division is: For 1, Against 4, Abstentions 0.

Amendment 12 disagreed to.

Amendment 1 is grouped with amendments 2 and 3.

The amendments aim to ensure that the person who obtains a power of arrest under the bill is the person who has the right to make any further applications to the court and is given the right to be heard or to be represented at court. That would apply where there is an application for an extension or recall of the power of arrest. As the bill is drafted, the right is given to the person in whose favour the power of arrest has been granted. That might be interpreted as meaning a person other than the original applicant in circumstances where the power of arrest protects a person other than the applicant.

In most cases, the person who applies for the interdict will be doing so on their own behalf. However, in a limited number of circumstances, a person may be entitled to apply to the court for a power of arrest to protect another person from abuse. For example, that could be where an application is made on behalf of children or where the court has appointed somebody to act on behalf of a person who is incapable. It was not our intention that such people would make subsequent applications to the court. The necessary applications and representations at court should be carried out on their behalf by the original applicant. The amendment clarifies the position.

There is, perhaps, a need for a further minor amendment to the provision in relation to a child who reaches the age of 16 or a person who recovers from a mental illness. We are considering whether to introduce such a change at stage 3 and will discuss the position with the Scottish Executive.

I move amendment 1.

What Christine Grahame proposes has merit and I will support it.

We welcome the amendments. We have concerns about children who turn 16 while covered by an interdict. However, as Christine Grahame has undertaken to consider that point further, we will support the amendments.

I am grateful to Bill Aitken for his support.

Amendment 1 agreed to.

Amendments 13 and 14 not moved.

Amendments 2 and 3 moved—[Christine Grahame]—and agreed to.

Section 2, as amended, agreed to.

Section 3—Notification to police

Amendments 15 and 16 not moved.

Section 3 agreed to.

Section 4—Powers and duties of police

Amendment 17 is in a group on its own.

The amendment deals with an issue of principle, not an issue of clarity, and so is a little more serious than my other amendments have been.

We would all agree that depriving anyone of their liberty is extremely serious and that we must be careful when we decide to do so. The bill says that a police officer has the power to arrest someone if he or she

"considers that there would, if that person were not arrested, be a risk of abuse or further abuse by that person in breach of the interdict."

That is not sufficient in terms of law or equity. If an officer is "considers" that something is the case, that is a question of personal judgment. We should sharpen that up. The officer concerned should have "reasonable cause" for suspicion. That imposes on the police an increased duty of care to ensure that their actions are apposite in the circumstances. I feel that the word "considers" does not have the force of "has reasonable cause" in this context. We would not wish to be considered to be acting oppressively. I therefore strongly recommend to the committee that the term "considers" be removed and "has reasonable cause" for suspecting inserted. We should do that in the interests of equity.

I move amendment 17.

I will just correct Bill Aitken. He implies that section 4(1) says "should be arrested". The section says "may arrest". There is considerable discretion at the outset. It is important to stress the words "a constable may arrest".

Section 4(1) sets out a two-stage test that must be met. First, the constable requires to have reasonable cause for suspecting that the alleged abuser is in breach of the interdict. That part of the test mirrors the test under section 15(3) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981.

The second test at which amendment 17 is directed is an additional one that requires to be satisfied before arrest can take place. There is no additional test in the 1981 act. To satisfy the second part of the test, the officer must consider that, if the person were not arrested, there would be a risk of abuse or further abuse in breach of interdict. The additional test was inserted to ensure that the constable is required to make a judgment that the alleged abuser will again abuse the victim. The test is intended to ensure that alleged abusers are arrested only if there is considered to be a risk of harm or further harm to the victim.

The amendment would require the constable to look into the future and into the mind of the alleged abuser to find reasonable cause for suspecting that, if the alleged abuser were not arrested, they would commit further abuse. That seems to be an unnecessarily difficult hurdle or higher test. It is asking the police to use an additional safeguard especially as the first part of the test also has to be satisfied and there must be reasonable cause for suspecting a breach of the interdict.

In most situations, it is likely that the interdicted person's behaviour over the period of time from the initial incident or incidents will be sufficient to signify that further abuse would be likely if the person were not arrested. It will be necessary for there to have been an initial incident or incidents that result in the court granting an interdict and then a power of arrest. Another incident would have to follow to allow the first part of the test to be satisfied.

In light of the explanation that the bill enhances the protection of an alleged abuser, I hope that the member will withdraw the amendment.

It is our view that, as drafted, the bill includes an additional test in comparison with the 1981 act. Therefore, the alleged abuser is already provided with additional protection. To amend the second test as proposed by Mr Aitken would set that second hurdle too high. We agree with Christine Grahame and ask Bill Aitken to withdraw amendment 17.

I am not prepared to withdraw amendment 17. The higher test is justified on the ground that the deprivation of any individual's liberty is a serious matter. It demands the higher test in this instance. All sides are attempting to apply reasonable considerations to the serious issues that the bill covers. In some respects, we minimise the effect of the bill if we are seen as unfair and oppressive. I am adhering to my submission and will press amendment 17.

The question is, that amendment 17 be agreed to. Are we agreed?

No.

There will be a division.

For

Aitken, Bill (Glasgow) (Con)

Against

Barrie, Scott (Dunfermline West) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Stevenson, Stewart (Banff and Buchan) (SNP)

The result of the division is: For 1, Against 4, Abstentions 0.

Amendment 17 disagreed to.

Amendment 18 is grouped with amendments 22, 27, 37, 39, 40 and 41.

Amendments 22, 27, 37, 39, 40 and 41 are consequential on amendment 18, which deals with a point of principle. It attempts to clarify the status of an arrested person in relation to section 4 of the bill. The Criminal Procedure (Scotland) Act 1995 distinguishes between the rights and status of a person who has been detained under section 14 of that act and a person who has been arrested. For example, a detainee can be detained for a maximum period of six hours, which can be extended on application, but a person who has been arrested can be held in custody to appear before a lawful court on the next lawful day. Therefore, it is important that when a person is being held in custody we should be clear in our minds and in the bill whether that person has been arrested or is being detained.

Section 4 provides that a person may be arrested if they fall within the criteria in section 4(1), but section 4(2) refers to the person being detained. There is a possibility of confusion about the status of such individuals, so it is preferable to replace the word "detained" in section 4(2) with "held in custody there". That would clarify the position and would ensure that the bill acts in the same way as section 15 of the 1995 act.

I move amendment 18.

It would be helpful if Christine Grahame could clarify the matter. I am interested in why the bill uses the word "detained". Bill Aitken has raised an important point for the scrutiny of the bill.

It might help if I set out briefly how the arrest regime under the bill will work. The police can arrest a person utilising the power of arrest for being in breach of interdict where certain conditions are satisfied. The arrested person is taken immediately to a police station and must thereafter be kept in custody until he is taken to court at the earliest opportunity. Throughout that process, the person's status does not change in the way that it tends to do under criminal procedure. When the arrested person is taken to the police station, the police must keep them in custody until the court appearance. That custody is referred to throughout the bill as detention. It is when the alleged abuser is at the police station that the rights that are available to them apply. It is clear that the term "detained" refers to the interdicted person who has been arrested and held in custody. That person is at no stage detained in the criminal sense of the word.

In the criminal sphere it is important to distinguish between detention and arrest because they carry different rights for the accused and impose different duties on the police. For example, the police may hold a person who has been detained for a maximum of six hours. The position under the bill is different because persons who are in breach of interdict are arrested and cannot hold the status of a detained person, as that term is understood in the criminal sphere.

The provisions of the bill in that respect are consistent with the provisions of the Matrimonial Homes (Family Protection) (Scotland) Act 1981, which refers to a person being detained. Those provisions have not caused confusion in identifying the status of persons during the past 20 years. I hope that that explanation will enable Bill Aitken to withdraw amendment 18.

Christine Grahame pointed out that the roots of the bill lie in the Matrimonial Homes (Family Protection) (Scotland) Act 1981. The purpose of the bill is to extend the categories of people who can obtain an interdict with an attached power of arrest.

Consistency in language with the 1981 act is required rather than consistency with criminal law. The term "detained" is also used and understood in the same way in the Children (Scotland) Act 1995. As Christine Grahame said, that term has been in use in legislation for 20 years and it has not led to the kind of confusion that Bill Aitken fears. For consistency, the term "detained" is the correct one and therefore the amendments are unnecessary.

I am not convinced by the arguments against the amendment. As Christine Grahame and the minister said, the Matrimonial Homes (Family Protection) (Scotland) Act 1981 contains such phraseology, but the bill is likely to be more controversial because its terms are more likely to be challenged. For that reason alone, there is a clear justification for amending the bill to obviate such challenges and not leave ourselves hostages to fortune.

There is no reason why the amendment should not be incorporated in the bill. It is common sense. If we do not amend the bill accordingly, we may live to regret it when we become open to challenge, which will be almost inevitable. I press the amendment.

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

No.

There will be a division.

For

Aitken, Bill (Glasgow) (Con)

Against

Barrie, Scott (Dunfermline West) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Stevenson, Stewart (Banff and Buchan) (SNP)

The result of the division is: For 1, Against 4, Abstentions 0.

Amendment 18 disagreed to.

Amendment 19 is in a group on its own.

I want to deal with the situation in which a person is held in custody before being brought before a court. We must consider the fact that, as drafted, the bill permits an arrested person to be held in custody until brought before a court under section 5 of the proposed legislation. Section 5 will apply when the procurator fiscal decides that no criminal proceedings are to be taken in respect of the matter that gave rise to that arrest. The bill makes no implied or express provision for the person to be held in custody until the next day when criminal proceedings are brought.

As section 135(3) of the Criminal Procedure (Scotland) Act 1995 deals with such matters, we should insert into the bill a reference to that section. That would remove the anomaly.

I move amendment 19.

I am grateful to Bill Aitken and the Law Society of Scotland for raising the matter. On looking at the section, I think that there may be a case for making an amendment to ensure that when criminal charges are brought, instead of the alleged abuser being pursued under the bill, the police have sufficient authority to hold the person in custody.

However, the amendment is defective as it refers only to summary criminal procedure and would not cover the situation if a serious charge under solemn provisions was brought. I will give more detailed consideration to the amendment. The police may already have sufficient powers under the relevant criminal legislation, without there being a need for any express provision in the bill. I ask the member to withdraw it.

I undertake to consider the position, perhaps in discussion with the police and Crown Office interests, to ensure that sufficient power exists. If appropriate, I shall lodge an amendment at stage 3. I am also happy to write to Bill Aitken and keep him advised of developments.

Minister, do you wish to speak to the amendment?

No. We would welcome further consideration by the member in charge.

Bill Aitken, do you still wish to press the amendment?

The undertakings given by the member in charge have provided me with some reassurance, so I shall not press the amendment.

Amendment 19, by agreement, withdrawn.

Amendment 20 is grouped with amendments 21, 23, 24, 25, 26, 28, 30, 33, 34, 35, 36 and 38. I call Bill Aitken to speak to and move amendment 20 and to speak to all the amendments in the group.

I shall speak only to amendment 20, as the other amendments are consequential and highly dependent on the result of the committee's deliberations on that amendment. Amendment 20 seeks to clarify the basis on which a person is held in custody under the terms of section 4(2). There is a clear distinction in Scots law, which has been established over many years, between the status of a person who has been detained under section 14 of the Criminal Procedure (Scotland) Act 1995 and earlier legislation, and that of a person who has been arrested. The maximum period of six hours is particularly relevant in this respect. This argument has been canvassed fairly thoroughly under one of the earlier amendments, so I shall simply adhere to the previous argument.

I move amendment 20.

The committee shares with Bill Aitken the desire to ensure that an arrested person is provided with appropriate rights and that their status is clear. It was for that reason that the rights of an alleged abuser following arrest were set out in the bill. The provisions of the criminal procedure acts do not apply to a person who has been arrested under the bill. All the rights that are available to the alleged abuser are set out in section 4(3) of the bill.

The purpose of setting out the rights of an arrested person in full was to make the bill clear and to avoid any confusion as to what rights they might be entitled to. I have already explained the difference between the rights of a person under that procedure and under criminal procedure. I therefore do not think that there is any need for the bill to refer to an "arrested" person instead of a "detained" person, as I have already explained.

In addition, the effect of the amendments in this group would be to confer all the rights available under section 4(3) at the moment when the alleged abuser is arrested, as opposed to when they are taken to the police station. In some cases, that would give them rights that would not apply at a similar time to persons who are arrested under criminal law, and that could cause operational problems for the police. We do not consider that that would be appropriate.

However, although we are clear that there would be problems if the alleged abuser had all the section 4(3) rights at the moment of arrest, we are looking at section 4(3) again to see whether there is a need to ensure that some of those rights—for example, the section 4(3)(a) right to be informed of the reason for the detention—are conferred on the alleged abuser at the moment of arrest. We are giving further consideration to that and may lodge an amendment on that point at stage 3.

I hope that my explanation has been clear, and that members will see that adopting the criminal law terminology in this instance is unnecessary and would affect the rights that the alleged abuser is entitled to.

The Executive would welcome further consideration of section 4, to examine which rights are available and when. We welcome Christine Grahame's commitment to re-examine that section.

Christine Grahame is quite correct to underline the rather strange circumstances in which we are dealing with this proposed legislation. To some extent, the bill is a hybrid of the criminal and the civil law of Scotland, and Christine is correct to underline the principles that apply in that respect.

We are talking about the rights of accused persons. Although we whole-heartedly endorse the principles behind the bill, anything that detracts from the rights of an accused person is something that we have to consider carefully. On that basis, I will press the amendment.

The question is, that amendment 20 be agreed to. Are we agreed?

No.

There will be a division.

For

Aitken, Bill (Glasgow) (Con)

Against

Barrie, Scott (Dunfermline West) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Stevenson, Stewart (Banff and Buchan) (SNP)

The result of the division is: For 1, Against 4, Abstentions 0.

Amendment 20 disagreed to.

Does Bill Aitken wish to move amendment 21, which was debated with amendment 20?

On the basis that a principle was established in the vote on amendment 20, I will not move amendment 21.

Amendment 21 not moved.

Amendments 22 to 28 not moved.

Amendment 29 is in a group on its own.

Amendment 29 deals with the situation when a young person has been detained following an allegation of abuse. The amendment would limit access to the child when there were reasonable grounds to suspect that the parent or guardian was involved in the incidents or alleged breach of interdict, or when the safety of the parent or guardian might be at risk.

The amendment would limit access to the child when that was essential to the further investigation of the offence under scrutiny or to the safety of the parent, guardian or both. Those of us who have had to deal with such matters, such as Scott Barrie, who has experience as a social worker, will be aware of the unfortunate situations that can arise from time to time when that problem manifests itself.

We must strike the balance between the rights of the accused and the bill's basic principles, to which we all adhere. On balance, I am satisfied that the amendment sets out the way in which we should proceed, and I commend it to the committee.

I move amendment 29.

In the criminal sphere, it may be necessary to prevent access because the alleged criminal offence may have involved a conspiracy between the child and the parent. In addition, a criminal investigation into the alleged offence will be continuing and there may be good reason to restrict access. However, we think that the position under the bill is rather different.

The interdict is directed at preventing an individual—in this case the child—from abusing the victim. It is therefore difficult to see how the parent could have been involved in the breach of the interdict. In addition, the police are not conducting an investigation into the alleged breach of the interdict. They are simply sending a report to the procurator fiscal on the facts and circumstances that gave rise to the arrest in breach of interdict and detaining the person until their appearance in court. In those circumstances, even if the parent were involved in the conduct that led up to the breach of the interdict, we would see no reason why the parent should be prevented from having reasonable access to the child.

It is right to enable the parent to have access to the child. In the situation under the bill, we can think of no circumstances in which access to a child should be left to the discretion of the police. I ask the member to withdraw amendment 29.

The Executive, too, thinks that a significant difference exists between measures that will be taken under the bill and those that are taken in the criminal sphere. To deny access or restrict the parent's access to the child is a serious measure to take and is not required in the circumstances that the bill deals with. Such a measure might be required in criminal investigations. We therefore hope that Bill Aitken will withdraw amendment 29.

It is accepted that what I am suggesting is a serious step to take, but I do not accept that the possibilities of such a situation arising are at all far-fetched. The terms of the legislation are deliberately and, quite rightly, set out fairly widely. We have wide parameters for what is meant by abuse and we can all go along with that.

It is not exaggerating the case to suggest that there could be instances where a youngster is involved in abuse and where the parent has been involved in a similar level of abuse against the same victim or complainer. It is unfortunate that the facts of life are such that those situations are not too infrequent.

I accept that what I am suggesting in some respects goes against arguments that I have advanced on other amendments. I am seeking in amendment 29 to restrict a right; I would not do so lightly. In this instance, and based upon experience, I think that amendment 29 is necessary and would strengthen significantly the terms of the proposed bill. I press amendment 29.

The question is, that amendment 29 be agreed to. Are we agreed?

No.

There will be a division.

For

Aitken, Bill (Glasgow) (Con)

Against

Barrie, Scott (Dunfermline West) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Stevenson, Stewart (Banff and Buchan) (SNP)

The result of the division is: For 1, Against 4, Abstentions 0.

Amendment 29 disagreed to.

Amendment 4, in the name of Christine Grahame, is grouped with amendments 5, 31 and 6. I point out that if amendment 5 is agreed to, amendment 31 will be pre-empted and cannot therefore be taken.

I will speak to amendments 4, 5 and 6. The amendments add an additional minor requirement to police procedures and apply after the police have arrested a person using a power of arrest under the bill.

Under the bill as drafted, the police require to record the time at which certain requests for intimation to a solicitor or other person are made or when action is taken in response to those requests or in relation to a child. The amendments also require the police to record what the request was for and the action that they took either in response to a request or in relation to a child. It could be expected that the police routinely record such details in other areas. The amendments put that good practice on to a statutory footing. That should not be an onerous requirement on the police. The committee is grateful to the Executive for suggesting the amendments, which we are happy to lodge and move today.

I agree that amendment 31 picked up a possible difficulty with the bill because the reference to "or" meant that it was not clear whether the police required to record both the time at which a request was made and the time when action was taken. That point has been picked up in the drafting of amendments 4, 5 and 6. I hope that Bill Aitken will therefore not move amendment 31.

I move amendment 4.

Having heard what the member in charge has had to say, I do not think that I need to contribute any more. When the time comes, I will not move amendment 31.

We support amendments 4, 5 and 6 for the reasons that have already been outlined.

Amendment 4 agreed to.

Amendment 30 not moved.

Amendment 5 moved—[Christine Grahame]—and agreed to.

Amendment 31 not moved.

Amendment 6 moved—[Christine Grahame]—and agreed to.

Amendment 32, in the name of Bill Aitken, is in a group of its own.

The reasoning behind amendment 32 is that we have to ensure that the bill, like everything else that we do in justice these days, is compliant with the European convention on human rights. I am not satisfied that the bill is following a proper course. Article 5 of the ECHR clearly lays down that a person who has been arrested and deprived of his or her liberty should be able to make a challenge in court at the earliest possible opportunity. The amendment would replace "as soon as practicable" with "immediately".

If we go ahead with the wording as it stands, I am certain that the legislation would be challenged and we could find ourselves in difficulty. It is best practice for an accused person to be brought before a court at the earliest possible opportunity. That principle has been enshrined in Scots law over the centuries and we should not dilute it in any way. I realise that that is not intended to happen, but the wording is loose and needs to be tightened up.

I move amendment 32.

It is for the member in charge to respond, but the phrase "as soon as practicable" occurs all the time in legislation. I am used to seeing it in other pieces of legislation, so I do not see the difficulty with it.

It would be useful to clear up why "as soon as practicable" has been chosen rather than "immediately".

Amendment 32 would require the police to inform the procurator fiscal immediately following the moment of arrest. That may not be a practical possibility.

In practice, intimation to the procurator fiscal will be made as soon as the procurator fiscal's office is open. There is little point in requiring an immediate intimation when the office is closed. The bill does not deal with a situation in which the procurator fiscal is required to attend the scene of a crime immediately.

To answer Bill Aitken's point, section 5(1) of the bill already requires a person to be brought before the court on the day after the arrest.

I want to put on the record that, although I understand why that is the case, it would be useful to clarify whether the words used in this committee would count towards what Parliament is meaning by that phrase. We are in a different situation here than if we were questioning the minister.

Minister, can you help?

Are you asking whether the words constitute a Pepper v Hart statement?

Yes, precisely.

I do not have the answer to that question. My suspicion is that they would not, but that is simply a guess. Perhaps if the convener would write to me about that, I could get a definitive answer. I fear that I cannot provide an answer today.

It needs to be cleared up by somebody. Some allowances will be made, I am sure, because we are dealing with this procedure for the first time. It would be useful if that could be clarified for future reference. I am happy with Christine Grahame's explanation, but I would like to think that that explanation, which has been given to Parliament, could be relied on if there was any question about the bill's meaning.

If there was to be a problem with the statement of the member in charge carrying that weight, a minister could possibly repeat her assurance at stage 3.

That is helpful.

After hearing what has been said, I believe that some clarification is necessary. I ask leave to withdraw my amendment, but I reserve the right to reintroduce it at stage 3 if the matter is not resolved satisfactorily in the interim.

Amendment 32, by agreement, withdrawn.

Section 4, as amended, agreed to.

Section 5—Court appearance

Amendments 33 to 41 not moved.

Amendment 42 is in a group on its own.

Amendment 42 is perfectly straightforward and highlights a point that was made earlier by the member in charge and by me: namely, that we are dealing here with a matter that must be considered in civil proceedings. The terms of the amendment are fairly self-evident. I do not need to speak about the amendment at length.

I move amendment 42.

The reason that the bill refers to the sheriff

"sitting as a court of summary criminal jurisdiction"

is to ensure that the alleged abuser is brought before a sheriff court quickly. The reference in the bill to "rules of court" makes the position quite clear. Rules of court can be made only in relation to civil matters. The practice and procedure of the criminal courts are regulated by act of adjournal. If the bill had intended to make the proceedings criminal, it would have referred to matters being prescribed by act of adjournal. There is no similar provision in the 1981 act and none has been necessary during the past 20 years. Specific provision for legal aid in relation to the representation of arrested persons is being made and will be dealt with as civil legal aid. No offences are created under the bill and proceedings could only be civil.

I hope that the member will be content with that explanation and will feel able to withdraw the amendment.

The bill makes it clear that we are dealing with civil law. For that reason, we do not believe that amendment 42 is necessary.

The nub of the matter is the definition of the type of proceedings and the type of legal aid that would apply. I am prepared to accept the explanation offered by the member in charge and will not take the matter further.

Amendment 42, by agreement, withdrawn.

Section 5 agreed to.

Section 6—Amendment of the Matrimonial Homes (Family Protection) (Scotland) Act 1981

Amendment 7 is in a group on its own.

Amendment 7 deals with a minor drafting point. It is designed to make clear the placing of the amendment that the bill makes to the Matrimonial Homes (Family Protection) (Scotland) Act 1981. I have nothing further to say on the matter.

I move amendment 7.

You were too quick there. As neither the minister nor members of the committee have indicated that they wish to speak, I ask the member in charge to wind up.

I have no comments to make in winding up.

Amendment 7 agreed to.

Section 6, as amended, agreed to.

Section 7—Interpretation

Amendment 8 is grouped with amendment 9.

Amendments 8 and 9 are designed to clarify for the courts that they are entitled to look at abuse that gives rise to mental injury when they consider what constitutes abuse under the act.

The bill provides for a power of arrest to be attached to an interdict and for a person to be arrested or further detained by the court only when certain conditions are satisfied. In each case, one of those conditions is that the conduct that is covered by the interdict is abusive.

Section 7 provides a definition of abuse and sets out some types of behaviour or conduct that are abusive. The approach taken in defining abuse is specifically to include certain types of behaviour or conduct, but the bill does not set out to provide an exhaustive definition.

After the Justice 1 Committee heard evidence from consultees, it was keen to ensure that the bill included protection from psychological abuse as well as from physical abuse. The bill meets that aim by referring to "mental violence". However, we consider that the word "violence" has physical connotations and is probably not appropriate for behaviour that quietly and insidiously, but non-violently, produces mental injury and amounts to psychological abuse.

We have not been able to identify any usage of the term "mental violence" in other legislation, whereas "mental injury" has been used. In addition the term "mental injury" is used in case law that was considered recently by the courts.

I move amendment 8.

Amendment 8 raises an interesting point about the clarity of the definitions in the bill. The clear intention is that the bill's provisions should not relate to physical injury alone, and we have been aware of that from the inception of our consideration of the bill. However, we must be careful about definitions, as, in time, they will be tested. It is reassuring that they will be tested as a result of case law. I am happy to go along with amendment 8.

The definition is inclusive, not exclusive. I am happy to provide Bill Aitken with a note of the case law that contains the definition of "mental injury".

I would be obliged.

You cannot get better than that.

Amendment 8 agreed to.

Amendment 9 moved—[Christine Grahame]—and agreed to.

Amendment 10 is in a group on its own.

Amendment 10 is a minor amendment and is designed to make clear that the reference to "parental responsibilities and rights" in the bill has the meaning that is given to those terms in the Children (Scotland) Act 1995.

I move amendment 10.

Does the minister wish to speak to amendment 10?

No. We are content with amendment 10.

I am pleased to say that I have no comments to make in winding up.

Amendment 10 agreed to.

Section 7, as amended, agreed to.

Section 8 agreed to.

Long title agreed to.

Thank you. That concludes stage 2 consideration of the Protection from Abuse (Scotland) Bill. Well done, Christine.

I felt as if I were boldly going, in "Star Trek" terms.