Domestic Abuse (Scotland) Bill: Stage 3
We move to the next item of business. While members are changing places, I inform them that they should have before them the Domestic Abuse (Scotland) Bill as amended at stage 2; the marshalled list; and the groupings, which I have agreed.
The division bell will sound and proceedings will be suspended for five minutes for the first division on proceedings this afternoon. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. All other divisions will be 30 seconds.
Section 1—Amendment of the Protection from Harassment Act 1997
Amendment 1, in the name of Rhoda Grant, is in a group on its own.
Before I speak to amendment 1, I thank the minister and his civil servants for their help in lodging the amendments. It was very much appreciated and I hope that we have reached consensus on them.
Amendment 1 will make two changes to the bill as a consequence of the Damages (Scotland) Bill, which Parliament has recently approved. Stage 3 took place just the other week.
Section 1 of the Domestic Abuse (Scotland) Bill inserts a new section 8A into the Protection from Harassment Act 1997. Section 1(5) amends the definition of personal injuries in the Damages (Scotland) Act 1976 so that it covers section 8A of the 1997 act, as well as section 8.
However, the Damages (Scotland) Act 1976 will be repealed by Bill Butler’s Damages (Scotland) Bill. Amendment 1 will therefore amend section 1(5) of the bill to delete the reference to section 10(1) of the 1976 act. Harassment leading to personal injury will be covered by the general definition of personal injury.
Section 2 of the Damages (Scotland) Bill refers to section 8 of the 1997 act. That ensures that rights to damages that arise from actions of harassment under section 8 of the 1997 act will continue to transmit to the deceased person’s executor. Amendment 1 will amend section 2 of the Damages (Scotland) Bill so that it also extends to actions under new section 8A of the 1997 act.
Given that stage 3 proceedings on the bills were held so close together, we were in a bit of a quandary about how best to deal with the changes, and the amendments were agreed as the best way forward. I doubt that any other bill has been amended as quickly as the Damages (Scotland) Bill has been following its passage at stage 3.
I move amendment 1.
I express my gratitude for the way in which Rhoda Grant has approached the necessary amendments to the bill from stage 2. We appreciate that, and our officials and Rhoda Grant’s advisers have worked together closely to bring about the results that I imagine we will see later today.
The Government supports amendment 1, which will make some technical changes to the bill as a consequence of the Damages (Scotland) Bill, which passed stage 3 on 3 March.
Amendment 1 agreed to.
Section 3—Breach of interdict with power of arrest
Amendment 2, in the name of Rhoda Grant, is grouped with amendments 3 and 4.
Amendment 2 will amend section 3(1)(za), so that it refers to the determination being granted under the new section that will be inserted by amendment 4. The effect is that section 3(1)(za) will no longer reflect the category of persons that are being protected by the interdict. Instead, it will refer to the determination made by the court under the new section that will be inserted by amendment 4.
Under section 3(2), a person who breaches an interdict to which section 3 applies is guilty of an offence under section 3(1). The section applies when an interdict has been granted on or after the date on which the sections come into force, a determination has been made that the interdict is a domestic abuse interdict and the determination is in effect, and a power of arrest is attached to the interdict under the Protection from Abuse (Scotland) Act 2001 and is in effect.
Following amendment 1, a determination must also be made by the court that an interdict is a domestic abuse interdict and that that determination is in effect, together with a live power of arrest, for breach of the interdict to be a criminal offence.
Amendment 3 is a consequential amendment, in that it ensures that the reference in section 3 to the term “interdict” including interim interdict extends to the new section that will be inserted by amendment 4.
Amendment 4 makes a provision in relation to the determination by the court that the interdict is a domestic abuse interdict. Proposed new subsection (1) provides that a person who is applying for or has obtained an interdict may apply to the court
“for a determination that the interdict is a domestic abuse interdict.”
Under proposed new subsection (2), the court may make the determination only if
“the interdict is, or is to be, granted for the protection of the applicant against a person who is (or was)—
(a) the applicant’s spouse,
(b) the applicant’s civil partner,
(c) living with the applicant as if they were husband and wife or civil partners, or
(d) in an intimate personal relationship with the applicant.”
That last point is probably the most difficult in the bill. The Government amended the bill at stage 2 to include spouses, civil partners and cohabitees. However, the amendment removed boyfriends and girlfriends—people in a relationship who have not formalised the relationship and do not live together—from the bill’s protection. Approximately 11,000 cases of domestic abuse are reported to the police by people who fall into that category as current partners and almost 19,000 are reported by people in that category who are ex-partners. It is unreasonable not to protect such a large number of people in the bill. The Government agreed and we worked together to find a resolution to the problem.
We were keen that the protection was not extended to family members, flatmates or business partners. The best way to define the category is “an intimate personal relationship”. By that phrase, we mean a relationship that spans from dating to one that is fully sexual, and the spectrum in between. It also covers same-sex relationships within that spectrum. It is difficult to determine when domestic abuse will start within a relationship; it depends on each individual offence.
Amendment 4 also provides, in proposed new subsection (3), that
“Before making a determination ... the court must give the person against whom the interdict is, or is to be, granted ... an opportunity to make representations.”
Proposed new subsection (4) provides that the determination has
“no effect for the purposes of section 3 until a copy of the interlocutor containing the determination has been served on”
the interdicted person. That means that the breach of the interdict, and extant powers of arrest, is not a criminal offence until the court’s determination that the interdict is a domestic abuse interdict and that it has been served on the interdicted person.
Proposed new subsection (5) provides that where the court varies the relevant interdict, it must review it to establish whether it is still a domestic abuse interdict and, if it is not, the court must recall the determination.
Proposed new subsection (6) provides that if a determination is recalled it
“ceases to have effect for the purposes of section 3”.
That means that any breach of the interdict would not be a criminal offence.
I move amendment 2.
There were always going to be definitional difficulties. There is no doubt that when we sat down to establish whether a route forward was ascertainable, it was exceptionally difficult. I am not at all satisfied that there may not have to be some judicial determination of some of the phraseology that we intend to include in the bill. However, having been unable personally to come up with anything better, I concede that what Rhoda Grant proposes seems, on the face of it, to be as near as we will get to what we want, albeit that, as she might well concede herself, it is far from perfect.
I agree with much of what Bill Aitken said. It seems to me that proposed new subsection (2)(d) in particular has distinct difficulties. First, despite Rhoda Grant’s explanation, the phrase “intimate personal relationship” is not in fact defined in the bill and therefore it is difficult to know what a court might make of it. The situations that it covers could range, if I may put it this way, from a one-night stand to a relationship that, despite Rhoda Grant’s explanation, is not necessarily a full sexual relationship, because the phrase “intimate personal relationship” does not necessarily seem to imply that. There are all sorts of definitional issues about what the phrase covers.
The framework is right. I think that we all agreed at an early stage in the process that it is absolutely right that there should be a determination of what a domestic abuse interdict is.
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There is another slight difficulty with amendment 4. Subsection (2) states that the court “may make the determination” that the interdict is a domestic abuse interdict and gives the defender the right to make representations. However, the fact that the court “may” make the determination suggests that there is discretion in the matter, and it is not clear to me on what grounds that discretion would be exercised. One imagines that the interdict is either a domestic abuse interdict or it is not; it does not seem to be the sort of thing that implies discretion. I wonder why the amendment does not either say “must” or explain the circumstances under which that determination may not be appropriate.
Therefore, I have some qualms about amendment 4. I accept the problem that it seeks to address. I accept that there are issues regarding people who stay together for part of the week or whatever, and I accept that the principle that Rhoda Grant is trying to establish goes a little further than that of people who cohabit in the traditional sense. However, I question whether we have a workable definition that the courts can make sense of, that works in practice and that can deliver the goods in relation to the objective that Rhoda Grant has set.
I will not vote against the amendment. I have the same difficulty as Bill Aitken in that I do not have any alternative suggestions to make. Nevertheless, I have some difficulties with the formulation that has been put forward and I am interested in hearing Rhoda Grant’s or the minister’s responses to the points that I have made, which I think are important.
These are important amendments. Following stage 2, two main issues were outstanding: the labelling of interdicts and interdicts protecting a girlfriend or boyfriend. Amendments 2 to 4 deal with both of those issues.
Amendment 2 amends the current section 3(1)(za), so that it refers to the determination by the courts being introduced by amendment 4. Amendment 4 then provides that someone who is obtaining an interdict or who has obtained an interdict may apply to the court for a determination that the interdict is a domestic abuse interdict. The court may make such a determination if the interdict protects the applicant against a person who is or was the applicant’s spouse, civil partner or cohabitant or who is or was in “an intimate personal relationship” with the applicant. The latter category is designed to protect girlfriends and boyfriends of the interdicted person.
As Rhoda Grant has said—and as we will all remember from stage 2, when she alluded to this—table 10 of the “Statistical Bulletin: Crime and Justice Series: Domestic Abuse Recorded by the Police in Scotland, 2009-10” shows that 11,379 incidents related to violence between partners. Some of those incidents may have occurred between civil partners, but it is likely that the majority of the people involved were not in a formal relationship. Therefore, after considering the matter carefully, the Government concluded that we agreed with Rhoda Grant that interdicts covering boyfriends and girlfriends should be covered by the bill. Scottish Women’s Aid overwhelmingly supports that position and has stated that it is vital that all those who are at risk of domestic abuse from their partner or former partner should be protected.
Amendment 4 attempts to deal with at least one of the issues that were identified by Bill Aitken and Robert Brown. We consider that “intimate” means that there is a close relationship, but it does not necessarily have to be of a sexual nature—it could be a close emotional relationship in much the same way that a relationship between spouses, civil partners or cohabitants does not have to be sexual.
Would the amendment, therefore, cover relationships between brother and sister or parent and child as well as the other categories that the committee was careful to avoid?
That is not our intention in respect of amendment 4. We have framed the wording carefully to cover boyfriends and girlfriends.
The committee was concerned about the problem that could be associated with extending the definition to boyfriends and girlfriends, which Robert Brown has just highlighted. It is not entirely clear to me whether the minister has stated that the definition would cover those other categories. The committee would be concerned if there were any possibility of the new definition—I hesitate to call it a definition—covering the definition that we wanted to remove at stage 2.
As I said, that is not our intention. As members will appreciate, the drafting has been framed carefully by the Scottish Government legal department, with advice from officials. It is intended to—and we believe it will—capture appropriate relationships between boyfriends and girlfriends but not brothers and sisters.
The minister said earlier that the wording covered not necessarily sexual relationships but perhaps emotional relationships. I am at somewhat of a loss to understand where the cut-off point is between a boyfriend/girlfriend situation and a situation in one of those wider categories. I think that that was Stewart Maxwell’s point.
I am not trying to be difficult; I think that this is an important definitional point on which we must have clarity. Is the minister saying, in short, that the wording cannot include wider relationships than boyfriend/girlfriend situations?
We believe that it covers boyfriend and girlfriend situations. We accept that the wording that we have come up with covers a wide variety of relationships. Ultimately, we have accepted the advice of the Scottish Government legal department to use the wording in this way, because we believe that that best covers the need to protect those who are in a relationship that is not a husband-and-wife relationship or a civil-partnership relationship—in other words, one that is a boyfriend-and-girlfriend relationship. Sadly, that non-formalised relationship is a type of relationship in which there are not just hundreds or a few thousand but, perhaps, more than 10,000 instances a year in which there is a need for interdict and protection. I hope that that is clear.
I can confirm that, as I have already said, family members are not covered by the amendment. I hope that that clarification is welcomed by members of the committee, who, I appreciate, put a great deal of time and effort into carefully considering these matters.
When interpreting the provision on boyfriends and girlfriends, I expect that the courts will follow the principle of interpretation, whereby words that have a wide meaning but which are associated in the text with words that have a more limited meaning are taken to be restricted, by implication, to matters of the same character. That formal principle of interpretation will, I believe, help matters when it comes to the task that judges will have with regard to interpreting these provisions.
The reference in amendment 4 to “personal” is designed to exclude business partners, workmates and other relationships that are professional and social, as opposed to personal. Any abuse between, for example, business partners and workmates may well be shocking and disgraceful, but it would not be regarded as domestic abuse.
For the breach of an interdict to be a criminal offence, a number of factors must be in place. The interdict must be granted on or after the point at which section 3 comes into force; there must be a determination that the interdict is a domestic abuse interdict; there must be an extant power of arrest; and the power of arrest and the determination must have been served on the interdicted person. On boyfriends and girlfriends, we consider that the amendment achieves the objective of protecting boyfriends and girlfriends without casting the net too widely. We have had the opportunity in this debate to pin down that matter and, I hope, answer the concerns that were expressed by Mr Brown and Mr Aitken. Therefore, the Government supports the amendments.
I concur with what the minister said. The only thing that I would add concerns what Robert Brown said about latitude in the amendment. We have not defined domestic abuse on the face of the bill and, therefore, I think that it is only right to give the court some latitude in that regard.
Amendment 2 agreed to.
Amendment 3 moved—[Rhoda Grant]—and agreed to.
After section 3
Amendment 4 moved—[Rhoda Grant]—and agreed to.
That ends consideration of amendments.