Domestic Abuse (Scotland) Bill: Stage 1
The next item of business is a debate on motion S3M-7719, in the name of Rhoda Grant, on the Domestic Abuse (Scotland) Bill. The debate is oversubscribed. If all members stick strictly to the time that they are allocated, we will manage to fit everybody in.
14:05
It gives me great pleasure to speak to the motion that asks the Parliament to support the general principles of my bill, the Domestic Abuse (Scotland) Bill. I am hugely grateful for the help that I have received in taking the bill this far. It has taken a long time to get here.
After the last election, I had lunch with Maureen Macmillan. As we chatted about what she would do with her time, she said, “Rhoda, there is a little thing that you could do for me.” She went on to explain that, to her mind, there were some gaps in the Protection from Abuse (Scotland) Act 2001. Although that act was introduced as a committee bill, Maureen had proposed it and was instrumental in steering it through the Parliament. The next time that Maureen asks me to do a little thing for her, I will be a lot more wary. That said, it did not take long for her to persuade me that something had to be done. I embarked on the bill way back then.
I am grateful for the support of the Justice Committee and the Minister for Community Safety on sections 1 and 3 of the bill, the evidence in support of which was overwhelming. Section 1 makes non-harassment orders, which provide robust protection for victims, much easier to obtain. Current civil non-harassment orders are granted only when a course of conduct can be shown, which means two or more instances of abuse. I am clear that one instance of abuse is one too many; protection should be available at that point.
Section 3 makes the interdicts that protect a victim of domestic abuse more robust with powers of arrest. Currently, when those interdicts are breached, it is left to the victim to pursue the abuser through the courts for contempt of court. That is not tenable, when the victim is afraid for their life. Section 3 makes a breach of those interdicts a criminal offence, so any breach will be dealt with by the police and the criminal courts; the victim’s role will be that of a witness. That removes the stress and onus from the victim and provides the police with the tools that they need to deal quickly and effectively with on-going abuse. In 2009-10, 57 per cent of cases that the police recorded were repeat offences. Stopping repeat offending will protect the victim and be of benefit to the police and, ultimately, the public purse.
Sections 2 and 4 are more controversial. Section 2 provides legal aid without the need for contribution from victims who are seeking the protection of these orders and interdicts. Section 4 defines domestic abuse. Although the vast majority of victims qualify for legal aid, particularly following the increase in the income allowance, a small minority do not. Some victims who flee abusive situations have no access to the documents that prove that they are eligible for legal aid. In those cases, victims are often unable to take out orders for their own protection. Also, those who do not qualify on financial grounds may not have access to their own money or property.
The very nature of domestic abuse is an abuse of power. Normally, it starts with controlling behaviour that may not amount to physical abuse. Alienating friends and family and removing financial independence and the freedom to interact with other people are all examples of such behaviour. Those steps, along with undermining self-esteem and independence, prevent the victim from seeking help when the violence begins. At the point of flight, very few victims have control over their finances. Victims are also afraid to access bank accounts for fear that they may leave a trail that could lead the perpetrator to them.
Section 2 removes the barriers that people face in seeking and obtaining the protection that they need. Neither the committee nor the minister is keen on the solution that I have proposed in the bill. I am eager to hear alternative approaches that will provide the same protection in the situations that I have outlined.
As the member rightly points out, this is a controversial area. Perhaps the way to tackle it would be to deal with the practical issues that relate to the Scottish Legal Aid Board. For example, there may be ways of tackling people’s inability to access their own resources. Indeed, that may already have been taken account of. Would that not be a more fruitful way of doing things than to unbalance the legal aid system?
I do not believe that what I propose would unbalance the legal aid system. However, I take on board the member’s comments. I have been in talks with the minister on this point to try to find solutions on which the whole Parliament can agree and that will provide people with the protection that they seek while the needful provisions of the bill continue to progress through the Parliament.
Section 4 is probably the most controversial section of the bill for those who enthusiastically support the bill’s aims. The definition of domestic abuse that is currently in the bill is wide, and most supporters are keen for it to be narrowed or removed. The only definition that can really be agreed to is the current definition in guidance, but it is almost impossible to draft that legally. I therefore have two options: to remove the definition to allow the normal meaning of the term to be used, or to attempt to redraft the definition.
There are problems with both approaches. Withdrawing the definition is workable but would leave the bill open to interpretation, which would mean that, ultimately, domestic abuse would be defined by case law. However, providing a definition is also tricky. Defining abuse is not really an issue, because it has already been defined in the Protection from Abuse (Scotland) Act 2001. The problem comes when we try to define domestic. Many would argue that it covers only those who cohabit in some form, if it is used with its ordinary meaning. However, we know that domestic abuse can occur in relationships that have not yet reached the stage of cohabitation and that it happens after relationships have ended. At the moment, I think that we should remove the definition and include in the bill a name for interdicts relating to domestic abuse, which would make them quite different from other interdicts that may be sought.
I am interested in hearing members’ views on the most controversial elements of the bill—sections 2 and 4. I believe that the aims of those sections are just as important as those of the other sections in the bill, but I enter the debate with an open mind on how we can achieve them. If the Justice Committee or the Parliament vote down section 2 at stage 2 or stage 3 without taking steps to find a solution to the problems that the section seeks to address, we will leave victims with no protection. None of us would wish to find ourselves in that position.
I move,
That the Parliament agrees to the general principles of the Domestic Abuse (Scotland) Bill.
14:12
An evaluation of all Scottish civil protection orders was carried out in 2003 and identified problems, which fell into two main categories: access to justice and a failure to provide a robust response to breached orders. The bill attempts to address those problem areas in relation to domestic abuse.
The Justice Committee met on four occasions to consider the bill and to take oral evidence from witnesses, who included representatives of several women’s aid organisations, the Law Society of Scotland, the Association of Chief Police Officers in Scotland, the Crown Office, various legal representatives, the Scottish Government and Rhoda Grant MSP. I also visited the domestic abuse court in Glasgow. I am grateful to Sheriff Raeburn for taking the time to discuss with me the work that the court undertakes. I thank all those who gave evidence to the committee and congratulate them on the quality of that evidence. At this juncture, I also thank members of the clerking team, especially Anne Peat, for all their work on the bill.
With regard to access to justice, the bill inserts a new section in the Protection from Harassment Act 1997 to remove the requirement to show a course of conduct before a non-harassment order is granted in civil proceedings involving domestic abuse. That will bring civil provisions into line with criminal provisions and remove the requirement for a victim to go through a period of repeated abuse before being able to access an order. Evidence received by the committee showed wide support for the proposal.
There was some debate in the committee about the meaning of the word “harassment” and whether it implied that the conduct would have to occur on more than one occasion. After discussion, the committee came to the conclusion that the conduct would not have to take place on more than one occasion—an opinion shared by the minister, who declared that he was “reasonably satisfied” after considering the matter at length.
While agreement on the new section was reached without much difficulty, section 2 was a bit more problematical. It seeks to amend the Legal Aid (Scotland) Act 1986 to make legal aid available without means testing or the levying of a contribution in respect of all applications for an interdict with a power of arrest or for a non-harassment order, where domestic abuse is involved. The committee felt that there were a number of problems. It appears that, if the financial eligibility test for civil legal aid cases involving domestic abuse is removed for pursuers, it would contravene article 6 of the European convention on human rights and the principle of equality of arms. Much of the evidence to the committee suggested that removing that test for pursuers would create an obligation to remove it for defenders, too.
Rhoda Grant stressed that section 2 would not create an automatic right to legal aid for pursuers of civil protection orders, as pursuers would still have to show that they had a legal basis for the case in question, and that the case was reasonable. Despite her assurances, the committee came to the conclusion that section 2 would not represent equality of arms. Consequently, it would contradict the approach of the Scottish Legal Aid Board, which is to provide said equality. The committee is not persuaded that arguments contrary to that have any substantial merit.
With regard to section 2, at a fundamental level, it was argued whether the removal of the means test would represent an efficient use of public expenditure in the current climate. Concerns were also raised about the pressure on the civil legal aid budget.
Victims of domestic abuse deserve quick, robust and effective legal protection and access to justice, either through the criminal law or through civil remedies. The committee recognises that, in some cases, there must be adequate access to legal aid for that to be provided.
The committee agreed with various witnesses that singling out domestic abuse cases as requiring special treatment compared with other family law cases could be problematic. The committee shared the concerns of witnesses in that respect and, in the light of those concerns, we made the decision not to support the progression of section 2 into statute.
I will move on to the current failure to provide a robust response to breached orders. Section 3 makes it a criminal offence, with powers of arrest, to breach an interdict in domestic abuse cases. That new criminal offence will be punishable on summary conviction by imprisonment for a term not exceeding six months or by a fine not exceeding the statutory minimum. Section 3 was generally welcomed, and it is common sense. It will give victims the additional protection that is necessary and send out a strong message that Scotland is taking robust action to address the problem of domestic abuse.
In many cases, the granting of an order will be sufficient to deter offending behaviour, but we require to reassure ourselves that we are doing everything possible and that the powers of the courts are adequate. The low uptake rate in relation to breach of interdict cases suggests that the current measures are not adequate. In the words of the Crown Office:
“At times, the current process can seem a bit toothless.”—[Official Report, Justice Committee, 26 October 2010; c 3643.]
The committee therefore fully supports a criminal sanction for breach of a domestic abuse interdict being put in place to give victims proper protection. The committee is of the opinion that, when that measure is implemented, the criminal standard of proof, together with corroboration, must apply.
The final substantial section of the bill, section 4, defines in statute what constitutes domestic abuse. Currently, no statutory or common-law definition exists. The member in charge, Rhoda Grant, has highlighted the difficulties that can be caused by that. From the evidence, it was quickly apparent that the proposal had sparked a range of views. We look forward to the discussions that will take place at stage 2 and, we hope, a reconciliation of the problem.
14:18
I congratulate Rhoda Grant on introducing the bill, and I should perhaps also congratulate Maureen Macmillan on what appears to have been an extremely effective—not to mention ingenious—piece of delegation of all the hard work to Rhoda Grant. I also thank the Justice Committee for its work, which has been extremely useful for the consideration of the bill.
Domestic abuse is abhorrent, repellent and a stain on Scotland. There has been a change in attitudes over the years, but we still have a very serious problem. In 2009-10, the police recorded 51,926 incidents of domestic abuse. That is a shocking figure, which shows why we need to consider further legislation.
The Government supports section 1, which removes the need to show a course of conduct. I am grateful to the committee for its summation of the evidence in that regard, including that from Scottish Women’s Aid, which argued that the existing law is both ineffective and inaccessible.
We have concerns about the costs and other aspects of section 2, as Rhoda Grant said. For that reason, we do not support section 2, nor, indeed, does the Justice Committee. We agree with the reasons that the committee’s convener set out in his exposition.
Section 2 seeks to remove the legal aid means test when applicants are seeking a protective order to tackle domestic abuse. SLAB advised us that the potential costs are hard to estimate. We estimated the costs on the basis of rises in the number of orders sought. If demand for orders increased by 10 per cent, the estimated extra cost would be £529,000; if the increase was 20 per cent, it would be £725,000; and if the increase was 50 per cent, it would be £1.3 million—a not inconsiderable sum. Those arbitrary rates of increase were selected at random by SLAB to give an indicative figure for what the extra costs might be. The increase in demand for orders could be much higher than 50 per cent. It is ironic that the more effective the legislation is, the greater the cost will be.
It might be that people are currently put off from raising actions because of misunderstanding and unnecessary fears about whether legal aid will be available. I hope that we can address the matter by providing clearer information, and I have written to Rhoda Grant today along those lines. I will share that correspondence with the committee. We are anxious to continue the good working relationship that we have enjoyed with Rhoda Grant during the progress of the bill thus far, and we will seek to provide her with what further information from SLAB we can. I hope that that will address the point that Robert Brown made when he intervened during Rhoda Grant’s speech.
Only a proportion of the costs would arise as a result of section 2 but, given the committee’s report and the potentially very large overall costs, I urge Rhoda Grant to delete section 2.
We support section 3, on the criminalisation of breaches of domestic abuse interdicts with a power of arrest. We have pointed out some technical matters, which Rhoda Grant is considering, and we are happy to work with her and the committee on those points.
On section 4, the definition of domestic abuse is too wide. The committee’s report tends to the conclusion that a definition is required. We also tend towards that view.
We continue to work with Rhoda Grant and the Lord Advocate and we very much hope that we can find a solution to those matters.
14:22
I commend Rhoda Grant for introducing the bill. There is no doubt that rates of domestic abuse in Scotland remain unacceptably high and that further action needs to be taken to protect the victims of that crime. Too many people in our country, particularly women and children, live in fear of domestic abuse. That needs to change.
There has been progress through the domestic abuse courts, which were established during the previous session of the Parliament, and through the actions of the police and procurators fiscal in their approach to prosecuting the people who are responsible for domestic abuse. However, we need to do more. The bill will institute new measures, which will make a difference for victims of domestic abuse. That is recognised in the report from the Justice Committee, which once again has provided a fair and informed evaluation of a bill that it was asked to scrutinise.
It strikes me as important to remove financial impediments from people who would seek civil remedies against the activities of people who engage in domestic abuse, and it strikes me that victims of domestic abuse are worthy recipients of legal aid. Those principles have driven Rhoda Grant’s proposal to remove means testing for legal aid from domestic abuse victims who are applying to a civil court for an interdict with power of arrest or for a non-harassment order.
That approach did not win favour with the committee, although Rhoda Grant made it clear that in her view the bill would not create difficulties in the context of equality of arms between pursuer and defendant. I acknowledge the concerns of the committee and the Government about the legal aid budget in the current context of public sector spending, but I hope that progress can be made in subsequent stages of the bill, so that we can be reassured that no victim of domestic abuse will be excluded from taking action in the courts on the basis of financial capability.
The Labour Party did not support the Criminal Justice and Licensing (Scotland) Act 2010. An important aspect of that decision was the legislative presumption against custodial sentences of three months or less, and we remain concerned about the impact of that measure on the victims of domestic abuse. However, we supported the Scottish Government’s proposals to remove the requirement to show a course of conduct amounting to harassment for criminal non-harassment orders, as we believed that it would benefit victims of such offences.
In the same way, the bill removes the same requirement for the granting of a non-harassment order in civil proceedings that involve domestic abuse. That, too, will benefit victims of abuse, who will not now have to suffer a series of offences before they can obtain such an order.
The proposal in section 3 to make it a criminal offence to breach an interdict with a power of arrest in domestic abuse cases also gives further protection to victims, provides further penalties for offenders and should receive support.
Both those proposals require a definition of domestic abuse or the approach that Rhoda Grant described in her opening speech. However, I appreciate that there is further dialogue to be had between her and the minister on that, and I hope that matters can be clarified at stage 2. I welcome their continuing dialogue on the bill.
Although the committee does not agree with the legal aid provisions, the stage 1 report shows that we can achieve parliamentary consensus on other important measures that are proposed in the bill. I hope that we will do so and that the bill will proceed. If it does, it will represent another important step forward as we seek to do more to tackle domestic abuse and offer better protection in the law for domestic abuse victims in Scotland.
14:26
Like others, I pay tribute to Rhoda Grant for bringing this important bill before us.
Of course, we would all rather that we did not have to debate how to tackle domestic abuse in our society. However, the sad fact is that it has become an all-too-regular part of Scottish society. Indeed, the police currently record on average 142 incidents of domestic abuse each day, despite the efforts of many—including Government agencies and voluntary groups—to raise awareness of domestic abuse.
Because domestic abuse still pervades too much of our society, it is right that we support the main policy objectives of the bill: to increase access to justice for the victims of domestic abuse and to enable the police and prosecutors to provide a more robust response to breached civil protection orders, which, in turn, may deter abusers from further abusive action.
The Conservatives believe that much of the bill will provide additional protection to victims and send out a strong message that Scotland is taking strong action to address domestic abuse. Therefore, we support its general principles and will support it at decision time.
I will highlight one issue about which we have concerns: it is important that we state exactly what is meant by domestic abuse. Scotland’s national strategy to address domestic abuse recognises that domestic abuse can take the form of physical, sexual or mental and emotional abuse. That is important when we remember that we need to tackle not only domestic violence, but the various types of controlling behaviour that can have a terrible effect on relationships.
Section 4 provides a statutory definition of domestic abuse. There needs to be clarity in the definition, particularly as it might result in criminal sanctions. The Law Society of Scotland has expressed a number of concerns about the proposed definition, particularly in relation to the inclusion of the phrase:
“an established relationship of any length”.
We are sympathetic to the Law Society’s view that the definition should perhaps be removed altogether and, instead, the courts should use the broad definition contained in the Protection from Abuse (Scotland) Act 2001 and the broader general dictionary definition.
Although figures show that there has been a 4 per cent decrease in incidents of domestic abuse in the past year, the scale of the problem is still staggering. The police recorded more than 50,000 incidents of domestic abuse in 2009-10.
Anyone can be a victim of domestic abuse, regardless of ethnic background, income, gender or age. However, the statistics tell us that the vast majority of domestic abuse incidents are perpetrated by men against women. As is often the case, such figures do not paint the full picture of the consequences of such behaviour. Each incident is harrowing for the victim and can ruin relationships. Domestic abuse also affects others—particularly children, who often witness the abuse and can be left with massive emotional and sometimes physical scars.
I hope that the debate signals that more action to tackle the problem of domestic abuse is required and that the Parliament is taking it.
14:30
I, too, congratulate Rhoda Grant on taking the bill successfully through to stage 1. Doing so takes considerable work and skill, to say nothing of persistence. The bill is on a topic that continues to be anxious and complex. Levels of abuse between partners are worryingly high across Scotland.
The bill tackles tricky legal and practical issues with its aim of improving the recourse that is available to victims of domestic abuse, who are primarily—but not always—women. The Parliament has a clear commitment to a zero-tolerance approach to domestic violence, and the bill will enhance the legal protections that are available.
The Justice Committee was right to recommend rejection of the legal aid provisions in section 2, which seek to allow pursuers to have state-funded legal aid in domestic abuse cases regardless of their means. The section does not meet tests of equality of arms and it proceeds broadly on a false basis. However, scope exists to improve arrangements when people have practical issues such as difficulty in accessing money. That could be dealt with through the Scottish Legal Aid Board.
The legal aid issues are one matter, but the reforms that sections 1 and 3 suggest are a different story. Those sections will fill significant gaps in the armoury of protections that are available to the victims of domestic abuse. Section 1 brings the law on the requirements for civil non-harassment orders into line with the criminal law. I retain doubts as to the difference that removing the requirement to prove a course of conduct will make in practice, because it will still be necessary to establish that the course of behaviour that is complained of is likely to continue, but the change is nevertheless helpful.
The substantial provision in section 3 is the main element of the bill. It makes breach of an interdict to which a power of arrest is attached a criminal offence in its own right. I know from my experience as a solicitor in matrimonial cases that the current arrangements of arrest for two days for breach of interdict in such cases can be powerful—that resolves, or gives respite in, a significant number of cases. In other cases, protection is given because the offender is arrested for conduct that is a criminal offence and is locked up or subjected to bail conditions. However, in the cases that are more significant but which fall short of substantial criminal activity, the arrangements are too weak. The new provision in the bill will fill a gap.
I say that with two conditions. First, proof of the breach should be on the criminal standard of beyond reasonable doubt with corroborated evidence, because such cases will proceed on breach of interim interdict when the conduct that is complained of has never been subject to or tested by proof in court. Any other arrangement would unbalance the law and risk injustice.
Secondly, I take the view, as the minister tends to, that we need a satisfactory definition of domestic abuse for clarity and for enforcement of any orders that emerge. People must know where they stand. The issue is more complex than it looks, but the committee was right to agree that the definition should be based on the normal accepted categories of partners that are used in other situations rather than on a widened or narrowed list or on what is in the bill, which does not do the trick. I have no doubt that abuse takes place in non-partner cases—between mother-in-law and son-in-law, siblings, parents and children, remoter relatives or flatmates who have no relationship—but the law must have focus and purpose, particularly when it imposes criminal sanctions. The focus is on partners, when emotions are heightened and the power situation is often unequal, as Rhoda Grant said. For others, other remedies and perhaps a different focus are available.
The Liberal Democrats are pleased to add our support to the bill, with those observations. I urge the Parliament to support the bill at stage 1.
14:34
Like other members, I begin by congratulating Rhoda Grant on getting her bill to stage 1—that is no mean feat—and by thanking the clerking team and the witnesses, who greatly assisted the Justice Committee through the stage 1 process.
It is fair to say that the committee’s view was that the bill was a bit of a game of two halves. We very much supported sections 1 and 3 but were much less supportive of sections 2 and 4.
I will begin with section 1, “Amendment of the Protection from Harassment Act 1997”, in its support of which the committee was unanimous. It seemed anomalous to many of us that the requirement to show a course of conduct before a non-harassment order could be granted had been removed in criminal cases but that that had not been done in civil proceedings involving domestic abuse. It is entirely reasonable for such an amendment to be made. Our support for that change was unanimous.
There was also unanimous support for section 3, which, if the bill were enacted, would relieve victims of domestic abuse of the burden of taking forward any proceedings, because the criminal justice system would take over that responsibility. That is welcome.
Others have mentioned the burden of proof, and I agree that the normal criminal standard of proof, together with corroboration, should apply.
I turn to section 4 and the definition of domestic abuse, which caused considerable debate on the committee and, I am sure, outside it. The issue is difficult to resolve to everyone’s satisfaction. The committee did not support the definition in the bill, and I agree with its position. In particular, it did not support the definition’s extension to the perpetrator’s parent, child, grandparent and so on.
As the Family Law Association told the committee, there is a clear problem with what section 4(1)(a)(ii) means when it refers to
“a partner in an established relationship of any length”.
That must be resolved before the bill can progress.
I agree with the committee’s report on whether a statutory definition of domestic abuse should be provided but, like many other members of the committee, I am not of closed mind on whether the whole of section 4 should be removed and we should stand by the broad definition of abuse in the Protection from Abuse (Scotland) Act 2001, as the Law Society and others suggested, which does not create a problem. That leaves the problem of how we define “domestic”. Clearly, we could rest on other definitions in existing guidance or the common law, as well as the dictionary definition, which John Lamont mentioned. That issue still has to be resolved, but there are ways forward. I strongly agree with Robert Brown that we should deal with the practical issues that the bill has thrown up rather than accept some of the legal definitions and solutions in the bill.
The most contentious part of the bill was section 2’s proposed amendment of the legal aid provisions. I do not agree with what section 2 proposes, and I think that it should be removed for a number of reasons, which several members have outlined. Particularly relevant is the equality of arms issue. I cannot support the idea that the proposed protection should apply only in domestic abuse cases.
You must close, please.
Other matters of family law are equally important, so I do not support section 2.
14:38
Like every other member who has spoken in the debate, I want to pay tribute to my colleague Rhoda Grant for her efforts in bringing her bill to the Parliament. I also thank Maureen Macmillan for maintaining her interest in the issue and for pushing Rhoda to introduce her important bill.
Sadly, domestic abuse is not a new affliction that affects only Scotland. It is widespread across the globe and is cross-societal. Such acts of violence have been carried out throughout history, and are still being carried out today.
Many forms of domestic abuse are instigated by alcohol or drugs, frustration or embedded resentment. Although each act is hateful, it is often cloaked under a false banner of love. I believe that all of us have a responsibility to say that domestic abuse in all its forms is unacceptable and must be outlawed in our society.
We have seen the figures and they are frightening. The number of reported cases—it is important to use the word “reported”, because many cases of domestic abuse go unreported—jumped from just over 35,000 in 2000-01 to more than 53,500 in 2008-09. It could be argued that that is because we have had advertising campaigns on the issue and people are more aware of it, but we cannot be sure about that.
As difficult an issue as this is to tackle successfully, the proposals that are laid out in Rhoda Grant’s bill will go some way towards protecting the victims of this criminal act, whatever form it takes.
It is not your doing, Presiding Officer, but the business managers have given us a short space of time for the debate, so we do not have time to go into all the sections in the bill. I will therefore concentrate on a couple of them.
Victims of domestic abuse often live in fear in the aftermath of an attack, even when non-harassment orders have been issued; they fear that the perpetrator of the abuse will return, and in many cases they do. That is why it is important that the requirement to show a course of conduct before a non-harassment order is granted should be removed. I firmly believe that that could act as a deterrent to aggressors who choose to return, with there being a greater chance of their facing stringent criminal charges.
As other members have said, the definition that is proposed in section 4 caused some discussion, and the committee heard interesting evidence on the point. Some concerns were raised by Scottish Women’s Aid and other organisations that represent women in particular. When such organisations, including those that I have worked with for a long time, raise concerns, it makes me want to look very closely at them. I have sympathy with Rhoda Grant for putting the proposed definition in the bill, but I also have sympathy with Scottish Women’s Aid and other organisations that have raised concerns.
The bill seems to extend the definition of domestic abuse to other family members, such as grandparents and children. As much as it should be accepted that domestic abuse impacts on all family members, there is a chance that by broadening the scope of the definition we will create a legal definition that Scottish Women’s Aid called
“potentially different and, therefore, unworkable”.
I do not want us to do anything like that; I want to ensure that the work that Rhoda Grant has done in preparation for the bill is totally and fully scrutinised, and that we come up with a solution that will be approved by all those who have been involved.
I must stop you there, I am afraid. I am sorry to have to do so, but as you said, I am somewhat constrained in my actions.
14:42
I start by apologising for arriving a few minutes late; that has been the order of my day.
I congratulate Rhoda Grant on introducing this very important bill. I will reflect on only three elements because, as usual, I have no desire to repeat what has been said before, although I agree with it all.
We are in a situation in which the existing remedies are commonly regarded as being inadequate and ineffective, which is precisely why it is important that the bill has been introduced. I wonder whether the Parliament spends enough time looking out for situations in which remedies are inadequate and ineffective. It might be part of what we should be doing to look around and ask where we should be legislating rather than waiting until something comes to us.
It is one of the tenets of legal aid that a person either gets it or they do not. During evidence sessions, we heard about how the legal aid system is an all-or-nothing system. The free-at-the-point-of-need concept in the national health service is similar, and yet we have recently been through a process of ensuring that, on rare occasions, the NHS is capable of allowing a patient to pay for certain medicines that would not be available under the NHS. That process was pushed through with the help of the Public Petitions Committee, on which I sit. I entirely understand the principle, but perhaps the principle should allow exceptions rather than just being taken as the principle.
I wonder whether we should still be considering whether protection orders should, of themselves, qualify for legal aid. I recognise the equality of arms issue, and I know that it would be difficult because there are complexities, but as one of my bosses once said to me, “If it wasn’t difficult, I wouldn’t have to pay you so much.”
I also reflect on section 3 on the breach of interdict with a power of arrest. The change is long overdue and—again—I am looking at a situation in which the previous remedies have been plainly inadequate and the solution turns out to be very different. The bill will put the onus on the civic authorities, most notably the police, to enforce the citizen’s rights, rather than expect the citizen herself—as it mostly is—to enforce them. That is plainly what we as a Parliament should be legislating to do: it is exactly what we are here for. However, I wonder to what extent we go looking systematically across how we operate and at our legal system to find the situations in which we should intervene.
I raise the issues, as I have done before, because we do not get the opportunities in our debates to consider such more philosophical points. We have to pick them up—as we always do in our legal system—in the detail of the cases that come before us. I wonder about some of the ways in which we bring forward legislation and the things that we look for.
14:45
I rise to support the motion in the name of my Labour colleague, Rhoda Grant. I first congratulate the member on bringing to Parliament a bill that, if enacted, will undoubtedly better the lot of the victims of domestic abuse, which is a repellent and totally unacceptable form of behaviour. Rhoda Grant is to be congratulated on her hard work and commitment in producing a progressive piece of putative legislation.
The Domestic Abuse (Scotland) Bill seeks to widen access to justice for victims of domestic abuse, and to produce a more robust and reliable response to breached civil protection orders. There can be no doubt that domestic abuse continues to be, as the minister put it, “a stain” on Scottish society.
Domestic abuse in all its forms is underreported, but the figures that we have demonstrate the worrying extent of the problem. In Scotland in 2008-09, 53,681 cases of domestic abuse were reported to the police—an 8 per cent increase from the number that were reported in the previous year. The figure reflects the year-on-year rise of reported incidents since 1999-2000, the first year for which data are available. There is no room for complacency, even though there was a 4 per cent decrease in reported cases last year. For instance, repeat victimisation rates remain high, despite a fall from 61 per cent in 2008-09 to 57 per cent in 2009-10.
Those are shocking statistics, and they represent flesh and blood victims—who are, overwhelmingly, female—who suffer physical and sexual abuse from partners or ex-partners. The crimes range from assault and physical attack to acts that degrade and humiliate women and are perpetrated against their will, including rape. I believe that Rhoda Grant’s bill will tackle deficiencies in the current law and support those who are victims of such gross and barbaric behaviour.
Section 1 will remove the course of conduct that is required for a non-harassment order to be granted by either a civil or criminal court. It will introduce a new section—section 8A—to the Protection from Harassment Act 1997 that will remove the requirement to show a course of conduct before a non-harassment order can be granted in civil proceedings involving domestic abuse. That provision means that someone will need to prove evidence of only one occasion of harassment and not that such conduct had taken place repeatedly.
The Justice Committee correctly recognised
“the wide support, including from the Government, for removing the course of conduct requirement for civil non-harassment orders.”
The committee correctly endorsed that change in its report. No one would wish to stand in the way of a reform that would remove the requirement for a victim to go through a period of repeated abuse before being able to access an order, which is completely unjust and unacceptable. Section 1 represents a reform that is rational, sides with the victim and, frankly, is long overdue.
Having said that, I agree with the committee’s view that, because section 1 will apply only when conduct leading to a non-harassment order’s being sought amounts to domestic abuse, a statutory definition of domestic abuse is likely to be required for the section to be operational. Other members have referred to the challenge, and I look forward to the necessary amendments being lodged at stage 2 to deal with that important interconnected matter.
I am glad to record my support for the committee’s backing for section 3, which creates a criminal offence when an interdict with power of arrest is breached. That will remove from the victim the burden of pursuing a contempt of court through the civil court and will instead place it—rightly—on the shoulders of the authorities. It is a civilised and progressive provision that is worthy of unanimous support.
I urge all colleagues at decision time to vote for the principles of the bill at stage 1. The principles should attract comprehensive backing as they are worth while and noble.
We come to closing speeches, but members still have only four minutes. I call Mike Pringle to be followed by Bill Aitken.
14:50
Like many other members, I congratulate Rhoda Grant on introducing the Domestic Abuse (Scotland) Bill. Any bill requires a huge amount of work. Scotland has developed an international reputation for its work on violence against women and, in particular, on domestic abuse. It is vital that that work be driven forward, which is why the Liberal Democrats welcome this afternoon’s debate on Rhoda Grant’s bill.
I reiterate the two main policy objectives of the bill. The first is to increase access to justice for victims of domestic abuse and the second is to enable police and prosecutors to provide a more robust response to breached civil protection orders.
I turn to the committee’s stage 1 report. Its conclusion was to support section 1, which will remove the course of conduct requirement. The Criminal Justice and Licensing (Scotland) Act 2010 removed the precondition to show a course of conduct amounting to harassment for criminal non-harassment orders. Section 1 has received wide support on the basis that it will bring civil provisions into line with criminal provisions, and will remove the requirement for a victim to go through a period of repeated abuse before being able to access an order. The Law Society of Scotland agreed that removing the course of conduct requirement is sensible and will make the process easier.
Section 3 will make it a criminal offence to breach an interdict with a power of arrest in domestic abuse cases. This new criminal offence would be punishable on summary conviction by imprisonment for a term not exceeding six months, a fine not exceeding the statutory minimum, or both. The responsibility for raising court proceedings in the event of a breach of a civil interdict would no longer be at the insistence of the victim.
The committee accepts that, in many cases, the granting of a protective order will be sufficient to deter the behaviour that is complained of, and that the current two-day detention under existing powers of arrest provides a useful respite to victims. However, the committee fully supports the view that a criminal sanction for breach of a domestic abuse interdict is necessary to give the many victims whom other members have mentioned proper protection. The provision will represent a strengthening of the current system and the committee is firmly of the view that the criminal standard of proof, together with corroboration, must apply.
As we have heard, section 2 deals with legal aid. The committee was not persuaded that there was a sufficiently compelling basis for singling out domestic abuse cases from other cases. The convener, Bill Aitken, has laid out extremely well why the committee does not support section 2.
I agree with the minister that, surely, in this day and age, whoever we are, wherever we are and regardless of our situation or personal circumstances, we must all have a right to protection from violence. Domestic abuse is unacceptable in the 21st century and we must all continue to work together to tackle this continuing problem. As Robert Brown said, we will support the general principles of the bill tonight at 5 o’clock.
I apologise. I was misinformed that Mr Aitken would be closing for the Conservatives. It will, in fact, be John Lamont—although you still have only four minutes, Mr Lamont.
14:53
Thank you, Presiding Officer.
This has been a very useful debate. It has given us the opportunity to raise an important issue while highlighting some of the technical concerns that we have about the bill.
I have already highlighted our concerns about the definition of the term “domestic abuse” in the bill. Section 2 has also been highlighted by a number of members: we, too, have serious concerns about attempts to make legal aid available without means testing. At a time when difficult decisions must be made about the use of public resources, we do not think that that would be a sensible move. There is an argument that, if the financial eligibility test for legal aid in cases involving domestic abuse were removed for pursuers, that would contravene article 6 of the European convention on human rights and the principle of equality of arms. We are not persuaded by the arguments in favour of doing that and do not think that they have any substantial merit, especially as the additional cost to the legal aid account could be significant.
I have great sympathy with the view that people who need to take legal action to protect themselves from domestic abuse should be able to do so regardless of cost; however, with the legal aid budget coming under pressure in the current financial climate, it is important that we take a responsible view of the use of public funds.
We believe that passing a new act of Parliament is not the only answer to the problem of domestic abuse. There must be a culture shift, so we welcome steps to help with the prosecution of people who commit domestic abuse.
We need to increase confidence in our criminal justice system and in social services. In order for prosecutions to be successfully brought, our courts need to have confidence in the disposals that are handed down. In order to act as a deterrent against further offending, and to protect victims, community sentences need to be more robust, with clear consequences for those who defy them. Furthermore, the courts need to have access to short-term custodial sentences, which can often provide the respite that victims and families need. Those are, perhaps, arguments for another day, but it is important that we bear in mind the bigger picture, as we consider how best we can effectively tackle domestic abuse.
Despite some concerns, we will support the bill at decision time tonight. I again congratulate Rhoda Grant on what she has achieved so far.
14:55
Like others, I pay tribute to Rhoda Grant for the amount of work that she has put in while getting the bill to this stage and for the work that she has done in Parliament in recent years to highlight domestic abuse.
If we compare modern Scotland with the Scotland of 50 years ago, we can see that we have made some tremendous advances. We have technology that enables people to communicate with the other side of the world, and we have the internet, which is great for our young children who are learning in schools. However, as Cathie Craigie pointed out, there has been a widespread problem with domestic abuse throughout history and, sadly, as we get into the 21st century, the problem still exists. Although there has been a small decrease in incidents of domestic abuse in the past year, which is welcome, there were still more than 51,000 cases. As Bill Butler pointed out, many cases go unreported. As the minister said, that is a stain on modern Scotland and the Parliament has a duty to act on it.
The bill contains some important elements that can make a difference and will give some respite to victims of domestic abuse. In particular, section 1 will remove the requirement to show a course of conduct before a non-harassment order can be granted by either a civil or a criminal court. As Rhoda Grant said to the committee, domestic abuse is difficult to prove. It is often committed at home, so there is no corroboration. If the requirement to show a course of conduct remains, many victims will suffer.
Also important is section 3, which will make it a criminal offence to breach an interdict. The bill also addresses a shortfall, in that the common-law interdicts are difficult to prove. As Bill Aitken pointed out, there is low uptake of them. The bill will, therefore, address a current gap.
On section 4, the committee heard much evidence about the definition. In her opening speech, Rhoda Grant said that she continues to wrestle with the issue. There is no doubt that, if we can arrive at a proper definition, that will make things easier for lawmakers, better for victims who are trying to progress their cases and better for the accused, who will have more of an understanding of what they are being taken to court in relation to.
Many members have spoken about section 2, which deals with the removal of means testing with regard to claims involving domestic abuse cases. I believe that the section, as drafted by Rhoda Grant, is well intentioned. I know that Rhoda Grant intends to continue talks with the minister on the issue, and I hope that some means can be found to address the concerns that have been raised by the committee.
As Nigel Don said, we have a duty to examine areas in which legislation is currently ineffective, and there are some quite clear gaps around domestic abuse. The passing of the major parts of the bill will make a difference. It will send a signal to the perpetrators of domestic abuse that their behaviour is unacceptable.
I urge the Parliament to support the general principles of the bill at 5 o’clock this evening.
14:59
This has been a useful debate, and we can now focus on the issues for discussion at stage 2.
The first of the two contentious issues relates to costs. It is reasonable to assume that all members recognise that any Government must pay regard to the costs of any legislative measure that it considers, especially where it is difficult to estimate with clarity what those costs will be. The Domestic Abuse (Scotland) Bill is one such example: it will have costs, and they are difficult to quantify.
Only a proportion of the costs will arise as a result of section 2, but there are, nevertheless, compelling reasons why that section should be deleted, especially in the light of the committee’s report. First, there are technical problems with section 2. As I understand it, the intention is that the means test would be disapplied only in respect of applications for protective orders against domestic abuse. However, in many cases the protective order will be part of a multi-crave action. It will not stand alone, but will be part of a wider action in which the pursuer is asking for a variety of things from the court. Disapplying the means test for protective orders only in multi-crave actions would mean that the means test would, I presume, be applied for those other craves in the action. That would create pretty serious technical problems, as SLAB testified in its evidence to the committee.
Secondly, the importance of providing timely advice to victims of domestic abuse is recognised on all sides of the chamber. It is not clear that there are barriers in the system to the provision of such advice. The written submission from SLAB states:
“The position in 2008/09 was that, of the 1371 financial assessments completed by the Board in cases containing at least one crave relating to a protective order, 97%”
—that is, almost all cases—
“were assessed as eligible, 77% with no contribution. Only 3% of applicants (43 cases) were assessed as ineligible. In 2009/10, this percentage had fallen to 1% as a result of the”
very wide
“extension of financial eligibility”,
which this Government, with the support of the Justice Committee and parties in the chamber, put forward. In other words, making legal aid more generous means that the number of people who would be affected by the presence of a means test would be 1 per cent. There are very few cases in which that would be a practical issue.
On sections 3 and 4, I understand the concerns about the definition. The definition as drafted is too wide and could mean that the focus on domestic abuse would be lost. Equally, however, we must ensure that the legislation is clear on what constitutes a criminal offence and what does not. That was encapsulated in paragraph 91 of the Justice Committee’s report, which is a model of clarity, and members have repeated the arguments that are contained therein during today’s debate.
The Government will continue to work with Rhoda Grant to devise workable solutions. She has received, and I have seen a copy of, a letter from the Rt Hon Elish Angiolini QC, the Lord Advocate, which states:
“Without a clear definition of what amounts to domestic abuse, there is the possibility that such interdicts will be challenged on their facts. Although this will be an issue to be addressed by the civil court, it should be highlighted that such challenges may result in motions to adjourn any criminal proceedings until the issue has been resolved.”
That letter will, of course, be shared with all members, but the Lord Advocate has already highlighted the technical difficulties that are contingent on the lack of a definition and the need for, or at least the desirability of, the presence of a definition in the bill for the reasons that the committee ably articulated.
In conclusion, the Government welcomes the bill, section 2 should be removed and the Government will continue to work very cordially with the member in charge.
15:04
I thank everyone who has spoken in the debate. It has been a constructive debate and I have found it to be very helpful. Members, including Cathie Craigie, spoke about the impact that domestic abuse has had on our society. Although the bill is a step in the right direction, it is widely recognised throughout the Parliament that we have to do an awful lot more to tackle domestic abuse.
Some members spoke about non-harassment orders. I know that Robert Brown has concerns about harassment, and indeed about non-harassment orders. He talked about repeat victimisation in the future, and that is part of what a non-harassment order is about—it is about stopping future victimisation. Section 1 of the bill, on non-harassment orders, and section 3 will work closely together, in that they will give the victim and their legal representatives a choice of interdicts and orders. They offer similar protection, but there will be a choice and it will be down to the victim and their legal advisers to decide how best to use it.
Others talked about the course of conduct requirement. I agree that its removal will protect victims from constant abuse. They will be able to seek a non-harassment order following the first incident of abuse, which will prevent people from being victimised repeatedly.
Section 2 is obviously the most controversial section of the bill. I agree with Fergus Ewing that it is difficult to tie down the costs and figures. We were working with figures that were given to us by SLAB, and it was difficult to extrapolate which cases actually dealt with domestic abuse. Indeed, the figures that we provided to the committee included both defenders and victims because we were unable to pull the figures apart. We believe that some of the figures that are being bandied about are unrealistic. If they were realistic, there would be a huge unmet need, and that would be echoing around the chamber.
As I said, it is difficult to quantify incidents and it would be useful if the minister would consider how we can go about doing that. Some of the blocks might occur when a victim goes to a solicitor for help. The solicitor might deem that an application for legal aid might not be warranted and therefore put the person off. We need to find out where the blocks in the system are, and that is what section 2 seeks to do. It would be helpful if those issues could be looked at.
Nigel Don mentioned equality of arms. I agree that it should not be beyond the wit of man to sort this out. I made available to the committee a lengthy document on the matter, and I am willing to make it available to any member who wishes to see it. Having looked at the legislation, we truly believe that equality of arms is not an issue. If members want to see the arguments in full, I am happy to provide them. I have only six minutes to wind up the debate and it would probably take me twice that to go through them, so I will not do that now. There is underreporting of incidents, so that would add to the costs, but this is more about how we deal with domestic abuse and the fear that prevents victims from coming forward than it is about access to finance, so it might not hide an untapped burden on the legal aid budget.
I suppose that what we have to consider is whether we really have to look at budgetary constraints when we are looking to protect people. Many people have lost their lives due to domestic abuse, so we need to stop it. Although we all recognise that budgets are tight, we need to ensure that we do that. My preferred option is that domestic abuse is not tolerated in our society, that the police deal with it, and that no victim needs to use the legislation for their own protection because we, as a society, will protect them. However, we are some way from that.
Members have supported section 3, but issues were raised about criminal evidence and criminal burdens of proof. The breach of an order under section 3 will be a criminal act. It will have to come under criminal evidence and it will have to have a criminal burden of proof, which is proof beyond reasonable doubt. It is quite different from the civil burden of proof that will be used to take out the order in the first place. Breach of the order will be criminal. I do not intend in any way to try to change Scots law on the back of a member’s bill. That would be biting off a lot more than I could chew.
I turn to the definition of domestic abuse, because I am quickly running out of time. I listened to what members said, and I think that there is a growing consensus about using the definition of abuse that is already in legislation and about allowing “domestic” to gain its broad dictionary definition. The term is already used in legislation; the Family Law (Scotland) Act 2006 uses the term “domestic abuse” but does not seek to define it. If I were to try to define it in this bill, that would impact on future legislation.
The Lord Advocate said in her letter:
“While the terms of the interdict will be a matter for the civil proceedings, to avoid any difficulties in the criminal context, the interdict will require to make it clear that the Sheriff has deemed the conduct referred to in the interdict to amount to domestic abuse.”
We are pursuing options around naming the interdict so that it becomes clear to the sheriff dealing with the breach that it is indeed a breach of an interdict for domestic abuse and that, in that case, it is a criminal offence rather than a civil offence. We will continue to pursue that with the minister.
I am very much aware that I am running out of time. I thank everybody who took part in the debate. Some members spoke about the impact of domestic abuse; John Lamont mentioned the impact on children. We need to tackle the issue; otherwise, future generations will have to live with it through their adulthood. We need to make a change and supporting the bill at this stage would help us to take one small step in that direction.