Protection from Abuse (Scotland) Act 2001
Good morning and welcome to the 13th meeting in 2004 of the Justice 1 Committee. We have a varied agenda of eight items on all sorts of different topics. I remind members who have mobile phones to switch them off. No apologies have been received—we have a full attendance.
Item 1 concerns the Protection from Abuse (Scotland) Act 2001. Members have among their papers several documents that set out the current situation and some possibilities for follow-up action. This is the first time that the committee has attempted to do post-legislative scrutiny of an act, and we have received lots of feedback. The question is whether we wish to act on it. I invite members' comments.
The act was widely welcomed, but a common theme in the responses is that not enough was known about it. It should have been advertised and promoted to make it more apparent that there is a remedy in the legislation, as people who could have been using it were not using it. A comment to the effect that more needs to be done to promote the fact that the act is available would be good.
The fact that the bill was not known about is a running theme in the evidence that has been submitted so far.
The submission that interests me is the one from the Association of Scottish Police Superintendents, which states that, although the power of arrest lasts for three years,
"it does appear that some Sheriffs are turning down a high percentage of such applications, reducing the arrest period and making it difficult to obtain powers of arrest unless the case involves physical assault."
My understanding of the act was that, to remove the person who is in breach of an order from the area concerned and to protect the victim, the police were intended to be allowed to arrest the person simply for having contravened the order. It was not my understanding that the act could be enforced only when a crime—physical assault—had been committed. It concerns me a lot if that is how the act is being interpreted.
I clearly remember from when the bill, which was a committee bill, was being scrutinised by the justice committees, that it was intended to give added protection to victims, and that it would allow for an arrest to be made at the point at which the person had contravened the condition of the order not to be in a particular street. I want to pursue that point a bit further, to find out whether there is any further evidence to support what the Association of Scottish Police Superintendents has told us.
I totally agree. The act is called the Protection from Abuse (Scotland) Act 2001: it was intended to protect individuals from being subject to physical abuse in the first place. The bill was meant to make a difference such that, if an interdict was breached, the police had an automatic power to arrest the individual before someone had been subjected to any form of abuse. When I read the response from the Association of Scottish Police Superintendents, I automatically assumed that it related to the status quo ante: that an interdict could be obtained under the Matrimonial Homes (Family Protection) (Scotland) Act 1981, but a crime would not have been committed and the police could not intervene until the person subjected another person to some type of physical assault.
I was having a chat with a senior police officer last week who had just completed a three-week training course for police managers at the Scottish Police College at Tulliallan, which covered some issues around dealing with domestic violence. I was informed that part of the training involved examining the legislation that may be used to assist in protecting individuals from abuse of which the police should be aware. I asked the police officer whether he was aware of the Protection from Abuse (Scotland) Act 2001, and whether it had been discussed at his recent presentation. The officer informed me that no mention had been made of it. Ensuring that enough information about the 2001 act is made available to those involved in enforcement, to those concerned with the legal point of view and to people who might be able to seek an interdict under the act is a genuine issue.
A further concern of mine was raised in the responses that Scottish Women's Aid received. It appears that people have no problems getting legal aid when they are going for an interdict, but there appear to be problems obtaining legal aid once the interdict has been breached. I note that one of the firms that responded to Scottish Women's Aid highlighted the fact that, if an interdict is breached, the firm is required under the act to raise the matter in the sheriff court within 48 hours. It appears to be difficult to obtain legal aid for that. Any consideration that we give to the matter should include an examination of the legal aid provisions.
I support what Michael Matheson has said about needing to pursue the question of legal aid. What he said about the Scottish Police College was also useful. I am wondering what the best way to proceed is. If the committee agrees that we need to ensure a wider knowledge of the legislation's existence, we need to think about what action could be taken to ensure publication of information on the powers that are available to protect victims in domestic violence situations—although the 2001 act has quite wide powers and may also be used in other circumstances. The Protection from Harassment Act 1997 created a power of arrest that can be attached to non-harassment orders, so two options are available to protect people who have been the subject of abuse.
The committee could write directly to the Scottish Legal Aid Board and to the Scottish Police College for confirmation of whether it includes that information in its training. We could also write to ask the Law Society of Scotland whether it thinks that further steps should be taken to widen knowledge about the availability of the orders. The committee should keep an open account on receiving information about how the act is operating. I realise that the 2001 act has been in force for only about two years, so we are scrutinising it after a fairly short period. As time goes on, we might be able to obtain more up-to-date information about the act's operation.
It might be worth while sticking out a committee press release to advertise the act again. When writing to the Scottish Police College, it might help to send a copy of the Scottish Parliament information centre's document to provide more background information. I am sure that lecturers there would find that helpful.
We will do that, if that is okay with SPICe.
I agree with all the suggestions from members about action to be taken. As members have mentioned all the points that are suggested in our briefing paper as issues to raise with the Executive, it would be worth while to raise them. The act's proper application, training and legal aid questions are pertinent and should be brought to the Executive's attention formally. We should ask for a ministerial response, because we want the act to work. It is worthy legislation, but to be worthwhile, it must be enacted properly. Members have expressed concerns that we should raise with the Executive.
Will we do that in addition to what has been suggested?
Yes.
That is helpful.
The committee wrote to ask the Sheriffs Association to provide evidence in July last year, which was quite a few months ago. When would it be suitable to ask the association to give evidence again? That is important given the comment in one paper that one sheriff prefers to use the Matrimonial Homes (Family Protection) (Scotland) Act 1981 rather than other acts, although that is unnecessary. It is important that sheriffs are on board. Will we write again to the association?
Yes. There is no disagreement about the suggestions, which I will run through.
On knowledge of the 2001 act, we could take up Margaret Smith's suggestion of issuing a press release about the fact that the committee urges agencies to ensure that they are fully aware of the act's availability.
We propose to write to the Scottish Legal Aid Board to ask about the availability of legal aid. Cost has been a running issue, but we should ask about whether the interdict's availability is cost prohibited. We will make the Law Society aware of our concerns.
We will ask the Police College whether it has incorporated the act in its training. We will see what we receive.
We can take up Bill Butler's suggestion that we make the Executive aware that we will continue to scrutinise the legislation and are keen to know whether the Executive can do anything further on a publicity campaign about the availability of the options under the 2001 act.
Finally, we can take up Marlyn Glen's suggestion that we write to the Sheriffs Association, in particular on the point that the Association of Scottish Police Superintendents made—the association's perception is that some sheriffs use the 2001 act only in cases in which there has been a physical assault.
When we write to the Executive to say that we are keeping a watching brief on the situation, would it be worth asking specifically whether it has formed a view on some of the matters that have been raised by Michael Matheson and others? For example, the fact that a breach of the interdict is not an offence seems to cause problems. If the Executive has not yet formed a view, perhaps it should start to think about how it might improve the situation by amending the 2001 act. I know that it is early days, but difficulties are already emerging in relation to the 2001 act, so we should flag those up and ask the Executive whether it is beginning to think about how it might resolve them. Perhaps the Executive has not yet decided to consider the matter, but it would be worth our asking the question.
I think that there is general agreement with Stewart Maxwell's suggestion. We could make some of the points that are in our notes when we write to the Executive. Stewart Maxwell mentioned in particular the fact that a breach of the interdict is not a crime; there are powers to remove the person from the situation, but that is as far as it goes. That might represent a failing in the 2001 act and we can certainly ask the Executive to consider the matter in future.
Members have no further comments, so I think that we have exhausted discussion of all the possibilities.