Justice and Home Affairs Committee, 27 Sep 2000

Meeting date: Wednesday, September 27, 2000

Official Report 216KB pdf

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Domestic Violence

Item 5 relates to domestic violence. Maureen Macmillan will tell us whether she has finally had the meetings that she has been intending to have since we were much younger, and what happened at them.

This is a bit like "Brookside" or "The Forsyte Saga"—do not put that on the record.

It is too late, Maureen.

On 13 September we met the Minister for Justice and the Deputy Minister for Communities. Scottish Executive officials and Lesley Irvine of Scottish Women's Aid were also present. At the meeting the common overall aims that we share with ministers and their willingness to work with the committee were stressed. The Executive said that it would be content for the committee to proceed with its bill, and that the Executive's bill would follow later, as long as there was no clash of policy.

At this first meeting the ministers suggested that the key point of the committee proposal would be definition of who could apply for the proposed interdict, and that we would need to find satisfactory definitions of people according to the nature of relationships, duration of cohabitation, extent of family connection and so on. They said that lists available from similar statutes, such as non-molestation orders in England, could be adapted and that the Executive would help to draft such definitions. We pointed out that the committee had decided to sponsor a separate bill because of the difficulties of defining cohabitees.

The Executive said that it would prepare a paper to be discussed at our second meeting. At that meeting, which took place on 20 September, the ministers were represented by Executive officials. Lesley Irvine from Women's Aid was again present. The officials had prepared a paper comparing our proposals with the Executive's proposals to amend the Matrimonial Homes (Family Protection) (Scotland) Act 1981. It soon became evident that we had been talking partly at cross-purposes with the Minister for Justice. It had not been appreciated fully that the committee was proposing not simply to amend the 1981 act, but instead had opted for a bill of more general application, aimed at protecting people from abuse, whatever their relationship.

We pointed out that the committee's bill would complement the 1981 act and would offer protection to those excluded from that act, but would not include the power to deprive a person of occupancy rights to his or her home, which at the previous meeting seemed to be a sticking-point. It would have a wider application than to traditional domestic violence situations; it could, for example, apply in the extended family. When we said that there was a pregnant silence, after which the Executive representatives replied that they were not convinced that the case had been made for a more general protection from abuse interdict and that neither they nor the Scottish Law Commission had consulted on such a proposal. They were, therefore, more likely to regard the committee's bill as distinct from their proposals.

As the representatives talked, it became obvious that they were not hostile to the bill and could see merit in it; however, they would need to consult the minister. They said that because our bill was not seeking to amend the Matrimonial Homes (Family Protection) (Scotland) Act 1981, they would be unlikely to want to take it over after it was introduced in Parliament, but they would want to work with us to ensure that the bill was of the proper quality.

We have received no offer of formal drafting support from the Executive, because of the shortage of resources and because our bill is totally separate from its proposals. There is an offer of contact at official level to assist with policy development, and it was noted that the Parliament was in the process of setting up a provision for drafting non-Executive bills. We would be able to access that.

The question of legal aid, which the Executive sees as important, was raised. The Executive acknowledges that at present solicitors may be reluctant to provide emergency legal aid cover, in case the applicant does not proceed beyond interim interdict and does not in due course make a full legal aid application. The arrangements for emergency legal aid may involve a contribution by the applicant that is requested by the solicitor beforehand to protect the firm from being out of pocket.

The Executive is aware of the need to address the accessibility and cost issues, but that does not require primary legislation. The Executive says that it may be possible to improve matters by changing legal aid rules or by measures that reduce the need for solicitor involvement. The Executive would like to work with the committee in those areas. Discussion would also be required with the Scottish Legal Aid Board, the Law Society of Scotland, the judiciary, civil procedure interests and relevant voluntary bodies. If changes along those lines could be developed, they could help a number of victims to obtain remedies even under the existing law, which they are currently blocked from doing on the grounds of means.

The Executive has suggested that discussions on the issue could continue in parallel with the progression of the bill. The committee could also explore the options as part of its inquiry into legal aid and access to justice. In considering the proposal for a protection from abuse bill, the committee should be mindful that it would create a new remedy and therefore new candidates for legal aid. It should be noted, however, that the SLAB indicated in its meeting with me that it did not think that there would be a significant increase in legal aid expenditure as a result of the bill. That question will have to be re-examined.

Thank you. The first question is, in the light of Maureen Macmillan's discussions, do we intend to proceed with a separate protection from abuse bill with a power of arrest?

That has been the view of the committee for some time. To her credit, Maureen Macmillan has taken the matter forward with ministers. Ministers have demonstrated that such a bill is not in line with their thinking. Given the view of the committee, proceeding with a bill would seem the reasonable thing to do.

That is certainly a clear indication. The next thing is to develop the idea. There will have to be a report to the Parliament, and there are various stages that must be gone through. If the committee does not mind, I will ask Andrew Mylne to tell us once again precisely what the next procedural step is, as I am not entirely clear what that is.

The next step is for the committee to report to the Parliament. If the Parliament agrees to the proposal for a bill contained in the report, and assuming that the Executive does not indicate at that stage that it wants to take the matter up in legislation of its own, the convener has the power to instruct the drafting of the bill. The Parliament's new non-Executive bills unit would be able to assist with the process of developing a bill ready for introduction.

Would our report contain a draft bill? Presumably not. Would the report be long or short? Would it deal only with general principles? Can you give us a better idea of what would be in the report?

The report would have to contain a proposal for a bill—it would need to explain what the bill would do and how it would work—but it is not necessary to include a draft bill.

We could easily do that.

It has been pointed out that it is nearly a year since we took any evidence on this matter. The last thing that I want to do is to waste time, but a lot of thinking, moving, changing and development has taken place in that time. Our report will need to be clear about how the legislation will work and how it will fit in with existing legislation. Before we have the report drawn up and finalised, it may be appropriate to gather the views, either in written or oral evidence, of the people who are involved. However, the committee may feel that members—or perhaps the clerks—are well enough informed to proceed straight to doing a report.

I would have thought that we could proceed straight to a report. If a bill results, we will take evidence on the bill at the appropriate time. I would not have thought that we needed to take more evidence before we present a report to Parliament.

We should proceed to the drafting. I am drafting my bill and consulting other organisations as I go, because the drafting is when you hit problems and questions are raised about definitions. That is a good time to go back to groups, to sheriff principals and others, to let them see the bill before it goes to stage 1 and to ask whether the bill is in a workable form.

By the way, will this bill mean that mine gets knocked further down the list?

Do I get the impression that the committee wishes to have a stab at the drafting of the report without taking further evidence? Next week, a brand-new convener will parachute in knowing nothing about this, but that should not cause a huge problem for the drafting of the report.

I think that we are focused on what we want a bill to do and can draft a report along the lines that were suggested by Maureen Macmillan. We will eventually have to think seriously about the type of evidence we will hear, particularly as we will be legislating for relationship-based situations, which may be difficult to define. The matter has been lying around for a year and there is a lot of support for taking action on it, so it might help the process if we submit our report sooner rather than later.

It is my impression that we have decided to proceed with a committee bill and to draft a report, but not to take further evidence at this stage. We will not rule out taking evidence if we feel that we need it when we try to draft the report. Is that agreed?

Members indicated agreement.

Maureen Macmillan outlined some of the difficulties of drafting a bill. She highlighted the fact that at present there are no parliamentary facilities for the drafting of bills. Is the committee permitted to seek external support for the drafting of a bill, if it considers that urgency is required? Many voluntary organisations have experts in these areas.

The committee office now has a non-Executive bills unit, which has been set up precisely to assist the preparation and drafting of members' bills and committee bills. The unit is empowered to instruct outside drafting at an appropriate point in the process. It is for the unit to decide how it allocates its resources, but we would be able to tap into those.

The report should also refer to legal aid.