Proposed Protection from Abuse Bill
The next item of business is the committee debate on motion S1M-1392, in the name of Alasdair Morgan, on behalf of the Justice 1 Committee, on its proposals for a protection from abuse bill. As I said, this debate is heavily subscribed and I ask those who wish to speak to press their request-to-speak buttons now.
On a point of order, Presiding Officer. It is necessary to make the point that, although six members were disappointed in the previous debate, one political party has been left out completely.
As always, your point is noted, Mr Sheridan. I try to be fair most of the time and I think that you will find that you are called to speak more often than most members.
Presiding Officer, I am sorry to have to speak to you from this position in the corner of the chamber and I assure you that that has no bearing on the importance of today's debate.
It gives me great pleasure to present the report on behalf of the Justice and Home Affairs Committee. I came to the committee and this report late in the day and I congratulate the Justice and Home Affairs Committee and its convener, Roseanna Cunningham, on working both well and together. I particularly congratulate Maureen Macmillan, whose suggestion set the committee down the road towards the proposed bill and who acted as reporter for the committee when discussing the proposals with outside organisations and ministers. I thank the officials and officers of the Scottish Parliament and the Scottish Executive who assisted the committee.
Domestic abuse continues to be a major blot on Scottish society. One in four women experience domestic abuse and 25 per cent of all reported violent crime is related to domestic abuse. The law at present does not protect all victims equally. The principal statutory protection afforded to victims of domestic abuse comes under the Matrimonial Homes (Family Protection) (Scotland) Act 1981. That protection does not extend beyond spouses and cohabitants with occupancy rights. Furthermore, the courts have no powers to attach a power of arrest to a common-law interdict. That means that many people who are vulnerable to domestic abuse, including divorcees, are excluded from the scope of the 1981 act. Women—it is largely women who are concerned—who may have had the protection of a matrimonial interdict with power of arrest lose that protection immediately on divorce, which is often the time when they are most at risk of abuse.
This debate is the first in the Scottish Parliament on a proposed committee bill. The matter was first raised by Maureen Macmillan in August 1999 at the second meeting of the Justice and Home Affairs Committee. There was unanimous agreement that the issue should be pursued because of its seriousness. There was also enthusiasm, even at that early stage in the Parliament's existence, for the committee system to prove that it could, if necessary, progress towards legislation that was not necessarily at the top of the Executive's priority list.
In retrospect, and in scrutinising the Official Report of that early meeting, it is interesting that some concerns were raised about how rapidly the matter could be pursued, given the Justice and Home Affairs Committee's other business. Regrettably, although this matter regularly causes harm and distress to people, it has taken us almost 17 months to reach this stage.
The committee took oral evidence from a selection of relevant organisations, including the Family Law Association, the Association of Chief Police Officers in Scotland, the Scottish Partnership on Domestic Abuse, the Sheriffs Association, Scottish Women's Aid and the Association of Scottish Police Superintendents. After that process, Maureen Macmillan, in her capacity as reporter to the committee, held further meetings with the Family Law Association, the Lord Advocate, a representative of the Law Society of Scotland and the Scottish Legal Aid Board. Additionally, we received written evidence from the Department of Social Security, the Scottish Executive and the Scottish Police Federation.
I thank all those organisations for their time. I stress how useful their contributions have been. I hope that members will consider the breadth of opinion that has been canvassed as proof of the work that the committee did in coming to the view that is today before members in the Justice and Home Affairs Committee's report. The original suggestion that the reporter made was for a bill to amend the 1981 act in order to extend protection to victims of abuse who are not currently within its scope. However, it rapidly became clear from the evidence that we took that it would be extremely difficult to extend protection to all those people who require it by means of such a bill.
Amending the 1981 act was the route that the Scottish Law Commission proposed and that the Executive endorsed in its white paper on family law, which proposes extending the protection that is afforded by the 1981 act to include separated spouses, divorcees, cohabitants and former cohabitants.
In evidence to the Justice and Home Affairs Committee, Scottish Women's Aid, while welcoming those proposals, was, as stated in the committee's report, concerned that
"the focus of the recommendations continues to be the quasi-matrimonial state of the relationship and the ‘matrimonial' home. Women not coming into such a definition because they have fled the family home, or have never actually shared a home with their partner must seek orders under different legislation".
We accepted the arguments that amending the 1981 act would require the definition of cohabitee to be extended to include those categories of potential victims who were currently excluded or who were afforded only limited protection, and that, whatever definition we arrived at, there might be scope for legal argument as to who came under it.
We agreed with the Family Law Association that
"it was the nature of the activity, not the relationship between the parties, that was the key issue",
that the focus of our work should therefore be to protect women who are being subjected to abuse, and that women should be entitled to that protection if they can demonstrate that they are at risk.
We then considered formulating the bill along the same lines as the Protection from Harassment Act 1997, under which a breach of a non-harassment order, whether made by a civil or criminal court, is itself a criminal offence. If an interdict granted under the proposed bill were to operate in the same way as a non-harassment order, breach of interdict would automatically be a criminal offence. That would mean that the applicant would not have to apply for powers of arrest to be attached to the interdict or decide whether to take civil proceedings for breach of interdict.
However, we quickly recognised that a possible disadvantage of the suggestion was that it would take the decision whether to prosecute for breach of interdict out of the hands of the victim. The underlying principle is that certain matters are deemed criminal because they offend against the values of society as a whole, and as such are prosecuted on behalf of society regardless of the attitude of the victim of the crime. We were uncertain whether that principle was appropriate in relation to domestic abuse.
Where breach of interdict involves behaviour that is already a criminal offence, such as assault, it is right that the decision to prosecute is one for the procurator fiscal. However, if the breach involves merely turning up at particular place when doing so is prohibited by an interdict, the proposal might lead to a criminal prosecution that was disproportionate—unwanted by the victim and damaging to any prospects of reconciliation that might still exist. There is also a danger that because the consequences of a breach would be more serious, sheriffs might be more cautious about granting such interdicts in the first place.
The eventual solution at which we arrived was to seek to empower the courts to attach a power of arrest to a common-law interdict to protect individuals at risk of abuse. On the basis of our discussions and evidence taking, we believe that there is broad support for the general principle of that solution.
I will describe how the bill will work in practice. The scheme that will be set up by the bill will make use of an existing common-law power of the Scottish courts: the power to grant interdicts. An interdict is a flexible remedy that the Scottish courts are accustomed to granting to protect individuals from a wide variety of threatened wrongs, and in particular to individuals who consider themselves at risk of abuse from other individuals. Interdicts take many forms. For example, an interdict that is concerned with preventing abusive behaviour may order the alleged abuser to stay away from the applicant's home or place of work; or to stop making phone calls to the applicant; or not to approach the applicant.
The courts have the power to grant interdicts on an interim basis. In practice, an applicant for an interdict can receive a court order in their favour within days or even hours of applying for it. The problem with the present law is that the courts have no power to attach a power of arrest to a common-law interdict, even where the interdict is intended to protect an individual from the threatening behaviour of another person. That means that the police have no power to remove a threatening person who is in breach of interdict by arresting him, unless he has also committed a crime or they do so to prevent an apprehended crime.
The bill will allow individuals who consider themselves to be at risk of abuse to apply to a court to have a power of arrest attached to an interdict or interim interdict. It is then up to the court to grant the power of arrest if it is sufficiently satisfied that the applicant is at risk of abuse from the person against whom the interdict applies. The word "abuse" would include not only physical but psychological abuse. The applicant would be entitled to seek to have the power of arrest attached to an interim interdict. In practice, the applicant would be able to obtain a power of arrest within a short time.
Any individual at risk of abuse will be able to rely on the bill. There will be no requirement to prove that the person against whom the power of arrest is sought is a spouse or cohabitant, or a former spouse or cohabitant. The Parliament will note that one of the committee's main concerns during its investigation was to strengthen the law to protect women at risk of abuse from men with whom they had been in a personal relationship. The bill will address that specific concern, but it will assist others too, such as parents or grandparents of abusers, neighbours of abusive people, or any individual who has been in a same-sex relationship with an abusive person.
Under the bill, where an individual against whom a power of arrest has been obtained acts in breach of interdict, for example, by turning up at a former partner's home if that is the subject of the interdict, the police will have the power to arrest that individual.
Where an individual has been arrested for breach of interdict, but no criminal proceedings are to be taken against him, the next step for which the bill provides is that the alleged abuser is brought before the court. If the sheriff were then satisfied that there had been a breach of the interdict and also that there was a substantial risk of the arrestee again breaking the interdict and causing abuse, the sheriff would have the power to order the detention of the abuser for a further two days.
The person who obtained the power of arrest would in the meantime have the option of deciding whether to proceed with breach of interdict proceedings under existing law. Breach of interdict in itself is not a criminal offence; however, since it amounts to breach of a court order, a breach of interdict is treated seriously by the courts and is treated as similar to a contempt of court. The courts have the power to impose a penalty of imprisonment for that breach of interdict.
I will not describe the process that will follow in Parliament if Parliament agrees the motion. Members can find out about that process in standing orders.
The bill will not solve every problem related to domestic abuse. For example, access to legal aid should be improved and other legal points in other pieces of legislation should also be addressed. However, our proposal is a step in the right direction.
I move,
That the Parliament agrees to the proposal for a Committee Bill under Rule 9.15 contained in the Justice and Home Affairs Committee's 9th Report, 2000 (SP Paper 221).
I am delighted to be able to give the Executive's support to this important proposal from the Justice 1 Committee for a protection from abuse bill.
This debate is a testament to the flexibility and power of our new Parliament and its procedures. Standing orders enable committees to use their expertise to propose bills to the Parliament, as the Justice 1 Committee is doing today, and to develop legislation.
I will digress for a moment. The committee's proposal may not be as modern an idea as we think. Hundreds of years ago, in the previous Scottish Parliament, the Committee of the Articles had the power to frame legislation. However, that ended in tears. As the Crown controlled that committee, it also controlled the legislative programme and, as a result, it was abolished by the revolution settlement in 1690. Indeed, in the face of opposition from William and Mary, its abolition was the first act of the 1690 session of the Parliament.
History will not repeat itself in relation to committee bills. It is worth noting that, in our Parliament, the Justice 1 Committee is the first to start down the legislative road. The subject that it has chosen is important for the welfare of Scottish people, particularly women.
The Justice and Home Affairs Committee spent considerable time gathering evidence, which it considered with care. Maureen Macmillan made a particular contribution to that process as reporter to the committee. Constructive chairmanship was provided by Alasdair Morgan and, as the convener said, by his predecessor, Roseanna Cunningham. In preparation for today, the committee also liaised with the Executive and its officials, which is appreciated.
At the heart of the proposal for the bill lies the concern to help victims of recurring abuse. Alasdair Morgan is right to say that domestic abuse is an intolerable blot—a stain—on our society. This chamber and the Executive have demonstrated before that we will not tolerate it or its apologists.
In November last year, the First Minister and Jackie Baillie announced an £18 million package to provide 300 more refuge places, fund a prevention strategy and support local services. That must be matched by changes in the law.
Over the years, protective measures have been developed, from Lawburrows in 1429 through to the Protection from Harassment Act in 1997. The Matrimonial Homes (Family Protection) (Scotland) Act 1981, to which Alasdair Morgan referred, was quite forward looking in its day.
Each of those pieces of legislation addressed particular parts of the problem, but the gaps in provision have become clearer as society has changed and as our understanding of the problem of domestic abuse has become clearer.
In 1992, the Scottish Law Commission proposed amendments to the 1981 act. The Justice and Home Affairs Committee's report said, quite rightly, that no one disputes the need to amend that legislation. As the convener said, the Executive consulted on those proposals in "Improving Scottish Family Law".
Last September, in "Parents and Children", our white paper on family law, we reaffirmed what needed to be done. Interdicts with a power of arrest should be available to divorced partners and present and former cohabitants; they should therefore be renamed as domestic interdicts. The scope of matrimonial interdicts should be extended to cover the applicant's home and place of work, and the school attended by any child.
Those are important improvements. However, the committee concluded—I think quite rightly—that there are some people whom the 1981 act cannot reach, even with those amendments.
The committee has taken an innovative approach, and one that we applaud. It is right not to suggest trying tortuously to fit its proposals for interdict into the 1981 act. Its proposals will achieve more than reform of the 1981 act alone would ever have been able to do. That does not mean, however, that reform of the act is unnecessary. Our proposals to amend the act are complementary to the committee's proposed bill; they are not in competition with it. The committee's report recognised that. The Executive's proposals will provide an important protection in line with the needs of families in Scotland today.
We published our white paper while the committee was working up its report, but we were not able to indicate the timing of our legislation. That is still the case. Indeed, it is more than likely that, if the Parliament approves the committee's proposal, the committee's bill will reach the statute book earlier than any other way of amending the 1981 act. I think that all members would agree that it is crucial that we act with maximum speed to keep our laws against domestic abuse up to date.
The proposed amendments to the 1981 act and the proposed committee bill are further complemented by our proposals to strengthen the law on harassment, as announced in this chamber last week. That too requires a legislative vehicle to allow the attachment of a statutory power of arrest to a non-harassment order. In the debate on stalking and harassment, Jim Wallace suggested that, if the committee agreed, the protection from abuse bill might provide the most immediate legislative vehicle.
For the same reason, we have, in correspondence, suggested to the committee that its bill might also be extended to amend the 1981 act along the lines that we suggested in "Parents and Children". I recognise that there may be procedural difficulties in that. The scope of the bill would have to be wide enough to accommodate the extra provisions. There might well have to be a supplementary or amended report from the committee, and the committee might feel the need to take further evidence—although I would hope that that might be minimised by the extent of its previous consultation, the Scottish Law Commission's consultation and the consultation on "Improving Scottish Family Law", which led, of course, to our white paper.
We appreciate that the extra provisions would mean extra work for the committee and its officials. However, the work would be to an important end, and could be based on much work that has already been done by the Executive and the Scottish Law Commission, whose report contained draft sections that should give a foundation to build on. We would, of course, be happy to provide whatever assistance we could to the Parliament and the committee, if they were willing to take that course.
It would have been more straightforward if we had been able to make this proposal while the committee was taking evidence. However, only recently has it become apparent that the quickest way forward on this is likely to be with the committee's bill rather than Executive legislation.
I hope that the committee will be prepared to widen its proposals to accommodate modernisation of the 1981 act, not as an alternative to but as an addition to the measures in the report. I look forward to further discussions with the committee on this issue, either in today's debate or on a later occasion.
In any event, I am very pleased to confirm the Executive's support for the report and to commend the excellent legislative proposals that it contains.
I, too, welcome this afternoon's debate—a debate that is historical in the short history of this Parliament. The Justice 1 Committee is the first of the Parliament's committees to introduce such a proposal in its own bill.
As a member of the former Justice and Home Affairs Committee, I know that the past year has placed considerable demands on its members and staff. It has had a large and varied legislative programme to deal with. That legislation included the Adults with Incapacity (Scotland) Act 2000 and the act that caught everyone's imagination, the Regulation of Investigatory Powers (Scotland) Act 2000. Although that legislation is important, it had to compete with the committee's need to consider wider issues such as the issue that we are discussing today. It is all credit to the committee that it was able to consider some of those wider issues over the past year.
From its earliest meetings, the Justice and Home Affairs Committee recognised that there was a need to provide greater protection to women vulnerable to domestic abuse. The committee report and the evidence accompanying it shows the extent of consultation undertaken since September 1999 and that evidence was taken from a wide range of organisations. There were times when the committee became a little too preoccupied with other things and over-excited about the Regulation of Investigatory Powers (Scotland) Act 2000 and other bills, so that it lost focus on the issue. If it had not been for Maureen Macmillan's persistence in bringing the issue continually to committee members' attention we might not have got to the report and the debate today.
Initially, the Justice and Home Affairs Committee thought of amending the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and that powers of arrest should be attached to matrimonial interdicts. However, that act is more concerned with conveyancing and occupancy rights than it is with family law, so, as others have said, it would have been very difficult to have introduced the changes needed by amending it. Additionally, that act excludes a large number of people because it defines the group to which it applies as cohabiting heterosexual couples who are joint owners of a property or have a joint tenancy.
Those concerns were highlighted in evidence by Louise Sharp of Scottish Women's Aid, who explained that women have no entitlement to occupancy rights under the 1981 act but must go to court to get a declarator of occupancy rights. That process can take 12 weeks and in that period that woman cannot receive protection under the present provisions. Given the level of domestic abuse in our society, there is a real need to ensure that the proper legal protection is given to individuals. Thankfully, it is a responsibility of the Scottish Parliament and, to date, the Parliament has shown willingness to listen and to act on domestic violence.
The figures on domestic abuse in Scotland are revealing. From February 1988 until August 2000, nearly 29,000 domestic disputes were dealt with by Strathclyde police. Those figures show the range of relationships that people may be involved in when abuse takes place. Of those cases, 25 per cent concerned married couples, over 30 per cent those living with a partner, 18 per cent boyfriend-girlfriend relationships, 17 per cent ex-partners and nearly 9 per cent ex-spouses.
The protection afforded under the 1981 act does not extend beyond spouses and cohabiting couples who both have occupancy rights. That means that a woman in need of protection while a divorce is going through will lose the rights that she may have had under the 1981 act and become even more vulnerable once that divorce goes through. When she is at her most vulnerable the act fails to protect her. Domestic violence does not recognise relationship definitions, marriage certificates or the individual's location or gender. It is necessary therefore that the protection available to people in abusive, or potentially abusive, relationships does not recognise those distinctions.
However, the failings of the present 1981 act go yet further, as has been highlighted by the Scottish Law Commission, which said:
"If a woman who is the owner or tenant of a house cohabits there with a man who is not owner or tenant, and he begins to be violent towards her, she cannot obtain the protection of a matrimonial interdict unless he has applied successfully for occupancy rights",
which, in an abusive relationship, he is unlikely to do. The act as it stands also leaves out vulnerable groups that could be subject to abuse, such as single-sex couples or the extended family of grandparents.
Concern regarding the present limitations of the legislation as it stands has been expressed not only by those agencies that work with victims. It has been expressed by the police, the people who are responsible for dealing with what can be the front line of domestic violence incidents. They have highlighted that at present the legislation does not take into account the complexities of modern-day relationships.
The committee considered the possibility of amending the 1981 act and it is clear, from previous comments, that that is not a route to be taken. It was summed up by one individual who gave evidence and said that to try and amend the 1981 act would be a nightmare. The committee has come to the right conclusion, which is to bring forward its own bill.
However, we should recognise that the effectiveness of the bill will be achieved only when we also ensure that there is proper access to legal aid. The committee report highlighted the fact that there are many difficulties in accessing legal aid. When the Family Law Association gave evidence, it highlighted those cases where it had sought an order to protect someone who had been subject to domestic abuse, and had failed—often as a result of not obtaining legal aid, rather than because of a weakness in the case.
In addition, the length of time that it can take for cases to be processed by the Scottish Legal Aid Board has acted as a deterrent to victims of abuse from pursuing their cases. I hope that the minister will seek to address that in considering the bill.
The SNP is pleased to support the Justice 1 Committee's proposal for a protection from abuse bill.
I call Phil Gallie to open for the Conservatives.
Phil Gallie (South of Scotland) (Con) indicated disagreement.
I am sorry. There has been a change. I call Lyndsay McIntosh to open for the Conservatives.
Thank you, Presiding Officer, and my apologies for the confusion.
Although the proposal for a protection from abuse bill was the brainchild of Maureen Macmillan, she generously allowed the members of the Justice and Home Affairs Committee to adopt the baby—not via the internet or for a fee—because she believed that there was ample room for improvement or amendment to current legislation. The other members of the committee did not need much convincing. Early in the life of the Scottish Parliament, the marker was put down that domestic abuse was a subject in need of investigation. The name and membership of the committee may have changed, but the commitment has not. It is through Maureen Macmillan's dogged determination and conviction that the proposal is being debated today. Should the Parliament approve the proposal, it will be to Maureen's eternal credit. I am sure that Mr Morgan, the convener of the Justice 1 Committee, will welcome contributions from the members of the new Justice 2 Committee.
The subject of domestic abuse has been debated in the chamber on several occasions and I have participated in all those debates. Usually, the press gallery is either empty or sparsely populated.
It is empty today.
No, there are two people up there.
Why is the press gallery so empty? Is something happening elsewhere? Are we touching a raw nerve or invading the comfort zone of the people who report our dealings in the chamber? It could be anything—I do not know.
However, we certainly generated enough heat to see unprecedented all-party support for action on domestic abuse. I do not propose to rehearse all the previous debates, but I wish to say at the outset that I felt a deep sense of satisfaction and achievement when I saw the television campaign highlighting domestic abuse that was screened over the festive season. The advert—if it can be described as such—was arresting, and I hope that it has encouraged women who are living under the threat of domestic abuse to come forward. More than that, it will have occasioned many to think about the figures that are portrayed in it—one in five women are affected by domestic abuse. Who are they? Are they friends or acquaintances? Are they people with whom we come into contact on a daily basis? None of us knows for sure, because as the song in the advert says,
"no one knows what goes on behind closed doors".
It has been a great campaign, and I congratulate those who are responsible for it.
The anti-smoking Stinx campaign is another stunner of an advert. Who would have thought that a song for the Health Education Board for Scotland would have been released as a single? Hell, it could even pay for itself in a year or two. Is that what is meant by the new deal for the unemployed?
From its second meeting, the old Justice and Home Affairs Committee concentrated some of its time on considering the provisions and effects of the Matrimonial Homes (Family Protection) (Scotland) Act 1981, and focused on the right to occupy the home and the protection that the act afforded in the form of exclusion orders and matrimonial interdicts. Although the legislation was well intentioned, research and changes in domestic arrangements have shown that the act does not serve us well. There was too much differentiation between those who were married, divorced or cohabiting.
Now we tend to think less in terms of the position in law, and more in terms of human decency. The distinction has been blurred over the passage of time. What we do know is that women have suffered cruelly through the lack of protection. Matrimonial interdict with the power of arrest falls after divorce. Research shows that that is the time when women may be most at risk, with the degree and severity of abuse often escalating as hurt pride and vindictiveness increase.
Sadly, that violence can result in death, and like me, members will be shocked to learn that half the female homicides in Scotland are committed by former and current partners or spouses. Paul Martin and Kay Ullrich highlighted the case of Marilyn McKenna in our debate on stalking and harassment on 11 January. To that example, Scottish Women's Aid, from which the Justice and Home Affairs Committee took evidence, added the names of Kerry Anne Thomson and Frances Walsh—three women in the space of a year, and all because we could not provide adequate protection.
One of the greatest difficulties has been accessing civil legal aid. It has proved to be too expensive for the majority, at a time when they are struggling hardest to survive. I can say this with a fair degree of knowledge, that I have heard many a two-cop BOP—two-cop breach of the peace—or theft trial in my capacity as a justice of the peace, and it is fair to say that most of the accused were defended with the assistance of legal aid. It is also fair to say that most, following a guilty verdict, were found to have been serial offenders, so it grates with me that women who are abused have found it so difficult to access civil legal aid. Loss of liberty against loss of life—there is no contest.
It would be iniquitous to concentrate solely on the evidence of Scottish Women's Aid, compelling though it was. The evidence of the Association of Scottish Police Superintendents highlighted the difficulties with the existing legislation for those who are in the front line.
On the question of legal aid, of which I had a lot of experience at one time, when the Scottish Legal Aid Board came before the Justice and Home Affairs Committee, did anyone suggest to it that it might solve the problem if in such cases it was required to give a decision within a particular period?
No, I do not believe that that question was asked, but I am sure that others would wish to consider it.
Our police officers usually are first on the scene at incidents of domestic violence, and it is they who are left to explain the deficiencies to victims and pick up the pieces. The Association of Scottish Police Superintendents strongly supports the proposal, which would make the job of protecting women from abuse and deterring others from committing it considerably easier.
The Family Law Association also supports the proposed bill. Experienced practitioners often encounter difficulties in obtaining instructions from their clients, particularly for proceedings for breach of interdict. Time is critical, and in the legal profession, time is money. At present, solicitors may be reluctant to provide emergency legal aid cover, in case the applicant receives nothing beyond interim interdict and does not apply for legal aid. The arrangements for emergency legal aid may involve a contribution from the applicant, which the solicitor requests before he or she acts.
Time precludes me from saying much more. I hope that other members will highlight the evidence that the Justice and Home Affairs Committee heard about the cost of domestic violence, the research in greater London and Glasgow and the experience of other nations.
The Scottish Conservatives think that there is a definite need for the proposed bill. We would like victims to be treated more coherently, so that they are not forced to remain in an abusive situation. The proposal is an enormous responsibility that could impact on hundreds, if not thousands, of lives. We must bear it in mind that children were present at 42 per cent of the 4,549 domestic incidents that police attended in the first year of a women's safety initiative.
We must rise to the challenge and introduce a bill that fully addresses the issues that have been identified. Equality of access to the system of protection is fundamental, and an element of consistency in penalties is essential. I hope that Parliament sees fit to support the proposal.
Today's debate is a milestone for the Scottish Parliament, because it is the first occasion on which the chamber has discussed a proposal for a committee bill. That is a new constitutional development, as there is no such power at Westminster.
Twenty years ago, I visited the late First Minister in his somewhat crowded office in a well-known law firm in Glasgow. We discussed the newly established select committees at Westminster. Donald Dewar told me that he wanted the committees to scrutinise policy as well as performance and that they might initiate legislation in the longer term. As far as I am aware, that has not yet happened at Westminster. Here, we realise that aspiration today. I am sad that Donald Dewar is not among us to witness that moment in the Parliament.
I thank the witnesses who appeared before the Justice and Home Affairs Committee and I thank the clerks to that committee, who did much work. Michael Matheson paid appropriate tribute to them, and I support his comments. I also thank Maureen Macmillan, whose efforts Lyndsay McIntosh mentioned. I congratulate Maureen on her persistence in raising the issue when, as Michael said, the Justice and Home Affairs Committee was perhaps distracted in the midst of legislation.
It would be more than surprising if I did not welcome the proposal, as I was a member of the Justice and Home Affairs Committee. I am pleased to commit my support and that of my party to the proposed measure. Those of us who heard the evidence about the problems of domestic abuse were determined that something should be done to start to remove those terrible stains on our national life.
The evidence that Scottish Women's Aid gave on 8 September has stuck with me. I will quote a passage in our report, which sets the context for today's proposal:
"One in four women experience domestic abuse".
That figure is not from Scottish Women's Aid, but from the British Medical Association.
Twenty-five per cent of all reported violent crime is related to domestic violence. In 1995, 27 per cent of incidents of wounding and common assault were defined as domestic violence. In the past 10 years, almost half the female homicides in Scotland were committed by the woman's partner or spouse—both current and former. Those figures inform today's proceedings.
As was masterfully explained by Alasdair Morgan, the committee considered three possibilities for enhancing the protection of those who suffer abuse.
I am interested in the statistic that half the women who have been murdered in Scotland have died at the hands of a close acquaintance. Can Mr Robson say what percentage of all murder victims are women?
I do not have that figure to hand. I was simply alluding to the fact that of female homicides, almost half were committed by a close relative. I see that Mr Gallie has some statistics with him.
To return to the theme, three proposed routes were considered. Alasdair Morgan masterfully described why we chose the route that we did. Paragraphs 25 to 40—and especially 30—of the report set out the reasons cogently. What is perhaps not reported in the committee's deliberations is that the police welcome the committee's proposals and would like, on occasion, the power to be able to remove from the scene a person causing a disturbance.
The Executive has proposed valid amendments, which could well be incorporated in the bill. We are minded to support a supplementary report to the Parliament at a later date so that that can happen. The delay in assisting sufferers of domestic abuse in the form that the committee has recommended would be more than compensated for by the speedier introduction of the other measures that the Executive commends.
I reiterate points that have been made on legal aid. It is extremely important that the provisions of the committee's bill—whatever shape it finally takes—must not be thwarted by difficulties with legal aid. It was made clear to the Justice and Home Affairs Committee that primary legislation is not required to make changes that would bring about and facilitate an easier application process and a redefinition and simplification of the rules, to allow the development of greater access to civil legal aid. It is important that the Executive acts on those proposals in due course.
I welcome the proposal and signal our acceptance of Executive amendments, if any are lodged at a later date.
The earlier statement ran on by 15 minutes; we have to conclude the open part of the debate by 16:29, so speeches must be under four minutes.
The committee first accepted my proposal way back in September 1999. In retrospect, it is a bit like a soldier going off to the first world war—I thought that it would all be over by Christmas. Here we are, 18 months later, and we have got the matter into the chamber at last.
I wish to speak about the importance of the proposed legislation and the difference that I believe it will make to the lives of the many people who are being abused and intimidated, and have no real redress. Today's proposal could save lives.
The Matrimonial Homes (Family Protection) (Scotland) Act 1981, which was widely welcomed by those who worked with women who had experienced domestic violence, was landmark legislation because it gave abused women the power to have a violent husband excluded from the matrimonial home. The power of arrest that was attached to the interdict gave teeth to the exclusion.
Why, then, are not all abused partners sitting safe in the family home while the abuser is kept at bay by the law? Unfortunately, the act did not anticipate that, in the course of time, many couples would choose to cohabit rather than marry. The last thing that couples think about in that situation is their occupancy rights to the home in which they live. Because at present occupancy rights determine whether a person can have the full protection of the law, both parties must have occupancy rights to activate an interdict with powers of arrest.
Too many people who do not have occupancy rights find themselves abused. Divorcees find that their abusive partner, who no longer has a right to live in the former marital home, can continue to harass, but cannot be arrested for breach of interdict. That time is one of the most dangerous for a woman who has divorced an abusive husband, because she has no sanction to keep her ex-partner away. Unfortunately, there are cases where women have lost their lives in such circumstances. The police can make an arrest only once a crime is committed, but that crime is too often serious assault or even murder. As Lyndsay McIntosh said, the police made it clear in their evidence that they would welcome an extension of powers of arrest to keep women safe.
Abused women, married or not, often leave home as the result of a crisis, sometimes running for their lives. They do not want to return to the marital home. They want protection from abuse, not occupancy rights. That is also a dangerous time for them.
It is not, by the way, my experience that the abusive partner will harass a woman at a women's refuge. Rather, he will seek her out at the local shops, outside the school or wherever she is rehoused, and that can go on for years. We need legislation that will protect women in those situations.
I am well aware that it is not always men who are the abusers and women who are abused, nor do I think that abuse occurs only in a married or cohabiting situation. A woman can abuse a male partner. A woman can abuse her mother. A partner in a same-sex relationship can be abusive. A grandson can abuse his grandfather. A couple who do not live under the same roof, each having their own home, can contain an abuser. The permutations might be infinite. We need legislation to cover all such situations.
I thank the clerks, who have given me enormous support in my role as reporter. I also thank the bodies and individuals that gave evidence to the committee and to me, and helped me through the legal maze. I am proud to have played a part in this first committee bill, and I thank the other members of the committee, past and present, for their support. I commend the proposal to Parliament.
Like every member in the chamber today, I welcome the work of the Justice and Home Affairs Committee, and Maureen Macmillan's and the Executive's persistence in giving such a high profile to domestic abuse.
One in five women suffer from domestic abuse and it is estimated that they will suffer an average of 35 attacks before seeking help. It is at that point—the point at which they have found the strength to do something about their situation—that we must give them the support and protection that they need and deserve. We have all come to realise that the law as it stands is inadequate. It is based on a society in which marriage is the norm, and it fails to provide continuing protection after separation or divorce. We need to change the law so that it will offer protection to victims.
I echo what Michael Matheson said: domestic violence has no boundaries and no protocols and it reaches outside marriage. Domestic violence is not stopped by divorce or separation. At the moment, the interdict ceases to be valid after the couple have divorced. However, between 40 and 60 per cent of women continue to be abused by their former partner after divorce or separation. More than a third of women who have been abused by their partner were no longer living with their partner when the abuse occurred.
The law as it stands is outdated and inadequate. I am glad that, in its consideration of the options for a protection from abuse bill, the Justice 1 Committee has chosen to go down the path of a new, more general bill, rather than choosing to amend the Matrimonial Homes (Family Protection) (Scotland) Act 1981.
The groups that gave evidence to the Justice and Home Affairs Committee have been, on the whole, positive about the move to a more general, encompassing law. However, I want to raise a couple of points. Perhaps the Justice 1 Committee or the minister will comment on whether they could be considered within the bill.
First, I seek an assurance on the time that the process will take. A protection from abuse bill would mean that victims of abuse would have to apply once for an interdict and again to have the power of arrest attached to it. I would like the time between the two, when the victim is most at risk, to be reduced, or it might even be possible to work the two in together—I am not sure about that. Secondly, as always, we are on the first step of the ladder. We should not become complacent in any way. The matter should be dealt with.
Tackling domestic abuse is an on-going process. I encourage the Executive again to go the distance.
Congratulations are due to the architects of the committee structure on creating standing orders that allow the committees of the Parliament to initiate legislation. Credit for the subject matter is due to Maureen Macmillan, who first brought the matter to the attention of the Justice and Home Affairs Committee and the public.
I still remember the moment in the evidence-taking session in committee when we all felt that an idea was in the making. It was like a blinding flash of the obvious. As other members have said, we began by trying to amend the Matrimonial Homes (Family Protection) (Scotland) Act 1981, which is a general civil act. However, under it, the police have no role except if a crime is committed. The act deals in the main with occupancy rights for married persons and has an interdict with power of arrest. That power of arrest, which gives the interdict its teeth, simply falls on divorce. It is therefore a narrow provision.
The committee wanted to find a way to give a power of arrest for women on divorce and attach it to the interdict. As Maureen Macmillan said, that created the opportunity to widen the scope of the provision to other people—cohabitees, gay couples, children and so on. I think that we all agree that the status of a relationship cannot determine the strength of the protection in the law.
The key difficulty was trying to define cohabitees, whom we wanted to protect without having to define cohabitation, as many cohabitees do not want to be bound by the obligations of marriage. Wading through the evidence on that led us to believe that it would be too difficult. We slowly began to wonder whether it would be possible to consider a completely different section of the law so as to avoid having to define relationships, to allow the facts of a case involving abuse where there is a relationship to be brought before a sheriff, and to allow for the provision of a power of arrest.
We also examined the Protection from Harassment Act 1997, which has a provision to apply for interdict but, crucially, does not have the power of arrest. One of the problems with the act is that it is fairly new. I have dealt with at least one case in which the police had no record of the interdict. Furthermore, the woman concerned paid £500 for the interdict, yet had no protection.
We must consider how our law will look as a whole in future. The 1981 act will still be there, as amended, possibly by the Executive. The 1997 act will exist as it is, or might also be amended to include the power of arrest. There might also be a domestic abuse bill, which has been talked about today, and, of course, a breach of the peace bill. If we get all that right, there will be quite a lot of protection in the law and the Parliament will have achieved a great deal.
The work that the Scottish Executive has done on domestic abuse is commendable. This is a crucial moment—we are saying publicly that we are no longer allowed to refer to domestic abuse as a "domestic"; it is a serious situation that we will deal with.
I want to raise two practical issues. First, we are asking sheriffs in the criminal justice system, and in the justice system in general, to consider the circumstances in cases that are brought before the courts. We need to ensure that we get that right. We do not want to weaken the legislation at the point when the sheriff is deciding whether or not he or she will attach the power of arrest. We might need to do some preliminary work with sheriffs to ensure that they know what is expected and what the parameters are. The issue was raised by Lyndsay McIntosh.
The same goes for the police, who have been supportive of the measures. They must ensure that response times are quick enough, because the bill's aim is to ensure that people get protection, and they need the power of the police.
Finally, we must examine legal aid. Women who are the victims of crime cannot be asked to pay an unaffordable price.
There are two general approaches to dealing with the problem. One is criminal, the other civil. It is worth pointing out that if the criminal justice system was working properly, people involved in this sort of conduct would have long since been locked up or otherwise prevented from behaving in an outrageous manner—bearing in mind Gil Paterson's point that such people are often repeat, if not habitual offenders.
At present, the Matrimonial Homes (Family Protection) (Scotland) Act 1981 deals with the civil approach to domestic abuse by providing the opportunity to apply for exclusion orders or interdict. That act is, obviously, fatally flawed and very weak because of the absence of a provision for powers of arrest. The advantage of the bill presented today is that it would enable powers of arrest to be attached to a specific order once it was made.
I will raise a number of points for consideration in the months ahead. I recognise that the appropriate committee has done a lot of work already, but there is much more to be done.
There must be consideration as to whether the powers of arrest attachment should be automatic. There are compelling reasons why it should be, but on balance, my recommendation is that it should not be automatic because each case must be considered on its individual merits.
Power of arrest being attached is a serious thing. Perhaps, in the interests of justice, the new bill should allow the defender, through his agent, an opportunity to be heard before a power of arrest is attached. Does the member agree?
I am just coming to that. At present the system provides for two hearings: first, an application on an ex parte basis for the granting of a general order. Thereafter, there is the secondary aspect of the powers of arrest. At that stage, after having heard the opposing arguments from the other side, the sheriff will grant a cause shown.
I submit that there is a difficulty. Usually, it is women who are involved, and at a vulnerable stage in their lives. I wonder whether there is a way in which the system can be accelerated and the two hearings dealt with simultaneously. I put that idea into the pot.
The advantage of the integrated information system is considerable. A complainer will no longer have to telephone the local police office to tell the police that she has obtained an order. They will know because the clerk of the court will have informed them.
There must some flexibility in respect of time limits. The Conservative party suggests three years, subject to increase on application. One must recognise that human relationships are many and varied and there must be some recognition that reconciliation is possible, although how that can be achieved when one party is specifically prohibited from contacting the other is not clear.
At present, legal aid applications in all matters take an inordinate length of time. Something must be done to expedite the process. I suggest that it should be possible for legal aid to be granted at the bar of the court when an application for powers of arrest is urgent. That would be similar to what was available in criminal courts until comparatively recently.
I put those ideas to the Justice 1 Committee for consideration.
As has been pointed out, this is the first formal proposal for a committee bill to come before the Scottish Parliament. It is fitting that the measure aims in a meaningful way to extend the protection of the law to people who are victims of domestic abuse and violence. I congratulate committee members on the decision to proceed with the bill as a committee bill.
I decided to speak today not only because I wanted to congratulate the committee on a much-needed reforming measure, but because I wanted to raise an issue that is too often neglected when we examine domestic violence.
I am pleased by the way in which both the Parliament and the Scottish Executive have given priority to social justice. Social justice is not only about eradicating poverty; it is about ensuring that no one from our society is excluded, or feels excluded, from our economic, political or judicial systems.
The Scottish Executive's social justice annual report, which we debated in the chamber, proclaims on its front cover
"a Scotland where everyone matters".
How right that is. I labour the point because we must be careful that, in trying to put right injustice or to break down social exclusion, we do not inadvertently create a new injustice or an atmosphere in which others feel excluded.
I am referring to the language that is used in much of the Justice and Home Affairs Committee report. No one can doubt that the people who suffer most from domestic abuse are women. The proposals will do a great deal to alleviate the suffering and distress of many women in Scotland. However, that is part of the problem, if I may put it in that way—women are not the only section of society who suffer from domestic violence. We must be careful—especially in a Parliament so dedicated to the practices of equal opportunities and equal treatment for all our citizens—not to create, however inadvertently, an atmosphere in which a section of our community feels excluded.
I was dismayed to see that, in the first six pages of the report, discriminatory and sexist language is used on 12 occasions—only on three occasions is non-discriminatory language used in those pages. It is easy to use non-discriminatory and inclusive language, if we try. Indeed, such discriminatory language almost disappears in the proposals on pages 6 to 11 of the report. I wonder out loud whether that is due to the drafting abilities of the clerks—if it is, I congratulate them. However, I say "almost disappears" because we find such language even in the proposals. Paragraph 34 of the report quotes the evidence that Anne Smith gave to the committee. It says:
"‘It may be effective for legislation to specify that the court has the power to say that the man cannot go into certain areas other than the home' (col 174)."
I am sorry that Mr Rumbles has got that flavour from the report. If I may say something for my happy old committee, the Justice and Home Affairs Committee did not consider matters in a sexist fashion. What Mr Rumbles has read out is a quotation from someone who gave evidence to the committee; it is not our view. He is using Anne Smith's words, not the words of the committee.
I do not want to get into the detail, but paragraphs 4, 11, 12, 13, 16, 17, 19 and 24—and I could go on—contain such language.
I am not making a debating point; the issue is deadly serious. How we use language in the legislative process is crucial in the drive to create a socially just and inclusive society. A socially just and inclusive Scotland is an important Liberal objective and the committee bill proposal is a good step towards achieving that objective.
I ask committee members to ensure that, in their good work on the bill, the language that they use in the legislative process is clearly inclusive and not exclusive. Only then can we help to create, in the words of the social justice annual report,
"a Scotland where everyone matters".
I, too, welcome this first committee bill. I hope—and I am sure—that it will not be the last.
I speak not as a member of the Justice and Home Affairs Committee—or, indeed, the Justice 1 Committee—but as someone who has worked with women who have been abused and as an ex-justice of the peace on Glasgow District Council. It is not easy to seek an interdict. The person is usually seeking an interdict on the father of their children, or their partner, and it is hard to take that first legal step. Women who seek an interdict rightly face stringent tests if they want to exclude their partner, because they are seeking to exclude someone from what is perceived to be their own home. The process must be reasonable and just.
I am sure that many members who were not on the committee were unaware that some interdicts do not include the power of arrest for any breach of the interdict. That was news to a lot of the abused women who came to me. They took out interdicts and, when the abuser turned up and the interdicts were breached, they phoned the police only to discover that there was no power of arrest. All that the police said was that the man had to be removed. The women felt that that was unhelpful and that the policeman—and it usually was a man—was being unhelpful because he was man. The proposed bill will change that situation by providing a power of arrest that is an enforceable and effective part of an interdict. To me, that is common sense.
However, I have a wee question about the definition of abuse. A footnote in the report says that the definition should include psychological as well as physical abuse. I understand and support the inclusion of physical abuse; however, although I understand and agree with the inclusion of psychological abuse, I have a slight problem with how the courts will interpret the phrase. Perhaps I will receive some guidance on that matter.
The first step is that the power of arrest will be extended to include former spouses of divorced people; the extension of occupancy rights will allow cohabiting women to have that power if they ask for it.
I have found that 28 days is not long enough for a full application for legal aid. Some women are under too much stress and strain to go through the process, especially given the number of forms that must be filled in when an application is made. That whole situation must be re-examined. As for costs, I agree that women should not pay if they do not have the money upfront when they first visit a solicitor.
We should also consider the reform of enforcement. Although the police have the discretion to arrest, that discretion rests on a police officer's subjective view.
Finally, and most important, the ethos behind the bill must be protection for its own sake, and not because of property ownership or the kind of relationship that someone is in. It is of paramount importance for society to protect people who are being abused. I urge members to support the bill.
We have two minutes left in this part of the debate. If Sandra White wants them, she can have them.
Thank you kindly, Presiding Officer; I will do my best to keep to two minutes.
I congratulate Maureen Macmillan on her tenacity and the committee on listening to her and seeing the matter through. Although I had comments on various parts of the bill, I will confine my remarks to interdicts, which form the fairest and most important way of proceeding with the proposals.
Members have welcomed the fact that the proposed bill will mean that more people will have protection from abuse. However, unless the bill includes provision for interdicts, it will not have any teeth and will not reach the people whom it is supposed to reach.
Trish Godman mentioned the powers of the police. I ask the minister and the committee to examine that issue carefully in connection with interdicts. If the bill allows the introduction of interdicts, it will proceed more positively.
That ends the period of open debate. I apologise to Elaine Thomson, for whom time ran out, and I call Nora Radcliffe to close for the Liberal Democrats.
This very welcome bill will plug the gap in legislative protection between actual assault or breach of the peace and provisions under the Matrimonial Homes (Family Protection) (Scotland) Act 1981. Although that act could have been extended to cover couples that it excludes, such as separated, divorced, unmarried or same-sex couples, that would have given no protection to members of the extended family such as parents, cousins or siblings.
The bill comes at the problem from a different angle and focuses on the violence or threat of violence to the person, not on the nature of any relationship that the victim has or has had with the person threatening violence. That represents an welcome and important leap; it is the crux of the bill.
Allowing a sheriff to attach the power of arrest to a common-law interdict based on an assessment of the risk of violence to the applicant gives a degree of flexibility downstream, which is important in fragile, difficult and sensitive circumstances. It also allows the proportionate response that is required for compliance with the European convention on human rights, as the Lord Advocate noted. Use of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 will still be more appropriate in some circumstances, although I hope that, to meet equality requirements, the Executive will redefine what in law constitutes a couple. Without having to legislate, the Executive could also ensure that legal aid was more accessible. I hope that the bill will provide for the Minister for Justice's proposals on non-harassment orders, which would mean that the orders are enacted much sooner than they would otherwise have been.
The fact that Maureen Macmillan and the committee have been able to produce the proposed bill and bring it to the chamber relatively quickly demonstrates how effectively the Scottish Parliament can work. Speed is important, as each day is measured in misery. I am glad that progress is being made with the bill and, on behalf of the Parliament and all the people who will have good cause to bless her in time to come, I congratulate Maureen Macmillan on the effectiveness of her hard work and thank her and all who have helped her.
This is the fourth or fifth debate that we have had on domestic abuse. Perhaps that demonstrates the importance of the issue. I believe that this debate is the most important of the ones that we have had on the subject, because something positive will happen at the end of it.
The support for the bill is merited, given Maureen Macmillan's directness on the issue. She has set out clear aims and objectives. The fact that they are fairly simple is one of the attractive features of the bill.
Alasdair Morgan said that one in four women experience domestic abuse. Jackie Baillie said that one in five do. More important, she said that one in 10 women who experience domestic abuse suffer death. I find those figures hard to explain, but I take her word for them and assume that she can back them up. It is strange, however, that a Home Office report suggests that, south of the border, 4.2 per cent of both men and women suffer domestic abuse—that is one in 25. If all those figures are correct, that suggests that Scotland has a greater problem than England and Wales do. That must give us all cause for concern and it is an indictment of our society.
Mike Rumbles made his points bravely—I know the dangers, particularly in committee, of pointing out the fact that this issue embraces both sexes. I take his comments on board, as I am sure the committee will when the bill is in its final version.
Does Mr Gallie accept that the references that were made earlier from the first part of the report were quotations from evidence that was given to the committee?
I accept that and well recall comments that were made in committee. Indeed, we could pick up on some of the comments that have been made today. Trish Godman's comments were heavily oriented towards the impact of domestic abuse on women. We have to take note of Mike Rumbles's words—we ignore them at our peril.
Will the member give way?
I do not have time.
Iain Gray gave us a lesson in history and I welcome the fact that he said that the Matrimonial Homes (Family Protection) (Scotland) Act 1981 was forward looking. I must point out that the act was Tory legislation and that most of the bills that were passed during the 18 years of the Tory Government were forward looking.
The minister suggested that we could amend the bill so that it covered harassment. I am totally opposed to such an amendment, because the bill's simplicity is important. We should stick with that and get the bill through. However, although the harassment issue is different from the matter that the bill deals with, if something simple could be done to include harassment in the bill, I would be inclined to give some support to it. When the Justice and Home Affairs Committee considered the Protection of Wild Mammals (Scotland) Bill, it had reservations about some of the provisions for licensing. If it is easy to take those provisions out of that bill, it might be easy to add a section on harassment to this bill.
Lyndsay McIntosh gave full reasons why the Conservatives will back the bill. She and Pauline McNeill referred to Strathclyde police, whose change in attitude I welcome. Pauline McNeill referred to the old idea whereby people said, "It's just another domestic." That attitude no longer exists among the police.
The bill will be a powerful weapon for the police. It will also be a powerful tool for the courts, if they have the opportunity to implement the eventual act. I would like them to implement it, even if that has the negative effect of increasing the prison population.
I practised obtaining and resisting matrimonial interdicts as a civil legal aid lawyer. I congratulate Maureen Macmillan on her efforts. I do not want to steal her thunder but, at the very first meeting of the Justice and Home Affairs Committee, I raised the prospect of a committee bill on domestic violence. She, however, has the hearty backing of many women in the Parliament in her attempts to deal with domestic violence.
It was high time that something was done. The Matrimonial Homes (Family Protection) (Scotland) Act 1981 is more than 19 years old; it is way past its sell-by date and is no longer effective in dealing with the changing relationships within families. Its main aim was to protect occupancy of the matrimonial home, whether that was rented or bought. Trish Godman was right to say that the act focused on property rather than on people, although the aim was indeed to prevent the man from throwing the woman out.
Will the member inform us how many times she pursued such interdicts on behalf of men? Does she agree that society does not acknowledge the pattern that it is largely women who are being abused in the circumstances that we are discussing? This is not just about people not being very nice to each other in a house. Should we not try to change people's attitudes?
I cannot give Johann Lamont a categorical answer to her first question; it was just to do with how the instructions arrived. I would act on behalf of a client without taking into account whether they were a man or a woman. I represented mostly women, but that simply reflects the proportion of people who came into my office.
Pauline McNeill raised a point about harassment legislation. I am not clear about this, so perhaps the minister can tell us how often the legislation has been used. I suspect that it has not been used very much for parties who have been harassed, which is why we need to create other legislation.
I mentioned the importance of changing domestic situations. It was Maureen Macmillan, I think, who pointed out that the abuse or harassment does not always take place in the home, but can happen at school, at a supermarket or when a woman or man is visiting friends—it can happen anywhere. We have to be careful and ensure that, when someone obtains a common-law interdict, the terms of that interdict are extremely specific. The subject of that interdict must know what they are prevented from doing.
The current problem with the common-law interdict, which is available to people who are not married, is that, if there is a breach, a separate action has to be raised. That is cumbersome; it takes a long time and does not resolve the problem. That is why bringing the power of arrest to ordinary interdicts is so important.
I say to Bill Aitken that interim interdicts are granted before the service of the writ—that is the whole point. There is no hearing, except that the pursuer's solicitors seek the interdict from the sheriff on cause shown. The interdict is then served and it is effective from that moment. As quickly as possible thereafter, a second hearing is offered to obtain an interim order for continuing the interdict and to get a power of arrest attached. That takes care of the requirement under the ECHR—an issue that was raised by Nora Radcliffe—for the defender to have a hearing, as would also be the case under the proposed bill.
I am rushing, as I have only a couple of minutes left, but I have a number of ancillary issues to raise. Legal aid is a nightmare both for the practitioner and for the victim who comes into a solicitor's office. The last thing that the victim wants to speak to their solicitor about is getting statements from the Scottish Legal Aid Board within the 28-day deadline following the granting of emergency cover. They do not want to be asked about their finances when, first, that will be the last thing on their minds and, secondly, they may not be aware of the state of their finances. In the middle of the chaotic mess that their lives may be in at the time, money may not be coming their way from a partner or spouse and they may not even be receiving social security benefits. They might be living from hand to mouth, yet they still have to fill in a form that has to be signed. The system is chaotic and has to be examined. People used to receive emergency legal aid and pursue it on cause shown without having to do everything within a deadline. Perhaps we should turn back the clock.
In my experience, the police, certainly in Edinburgh, try to do their best when someone has an interlocutor—an order of the court—with a power of arrest attached. However, there have been occasions on which, even though the power of arrest has been properly intimated at police headquarters and to the local police, the police have turned up at my client's house to ask what the court order said. It hardly gave my client comfort to learn that the police did not know what the order said, even though the agent had taken all the proper steps.
We have to examine response times—10 minutes can be too long if someone has a violent partner outside the house. In such circumstances, people simply do not call the police, because 10 minutes is too long.
I congratulate Maureen Macmillan and my former committee on the proposed bill. It shows the Parliament at its best—it shows how we can respond to concerns that have been raised outside the Parliament. It also shows that the committees are the future of the Parliament.
This has been a significant debate. To start where Christine Grahame finished, I say that it marks a milestone in the development of the Parliament. It is to the credit of the entire Parliament that committees can introduce such bills in an atmosphere of innovation. We have great hopes for the committees. In my previous role, I was very committed to the efforts of the committees. I know the kind of work and commitment that lies behind the proposed bill and I know the contribution that committees can make. Committees can affect not just the process but the outcome; they can have a direct impact on Scottish lives.
I pay tribute to Alasdair Morgan and Roseanna Cunningham for their efforts and for the direction that they gave to the Justice and Home Affairs Committee; indeed, I pay tribute to all the members of the committee. Although I was not a member of that committee, the energy and passion that there has been for this subject among all committee members is apparent. However, I am sure that no one will complain if I, like everyone else who has spoken, single out Maureen Macmillan. I have known her for many years, during which time we have participated in the debate on domestic abuse. She is tenacious and courageous—I look forward to her discussions with Mike Rumbles. The proposed bill is a tribute to her dedication and commitment. I do not make a party political point, as I know that many other members have shown similar commitment, but it is to her enormous credit that she has delivered.
There is cross-party agreement that there should be no occasions on which help is denied simply because the threat comes from someone who is not a spouse or cohabitant or because the threat has not been repeated often enough. The case for the bill has been well made, and I congratulate all committee members on their work.
The Executive would like to take the opportunity to amend parts of the proposed bill, if the committee will allow us to do so. I welcome the position that Euan Robson, who I see is no longer in the chamber, has taken, and I am sure that we can persuade others of the case for amendment. The process would be reasonably effective and speedy. Our aim is to speed up the enactment of certain measures and make lives better, rather than to delay the committee process.
I hope that it is a sign of open government that we are indicating that our bill would take longer than anticipated. As there is an opportunity to improve and offer protection to important people, I hope that the committee will afford us that opportunity. Obviously, that is a matter for the committee. We hope that we can negotiate with it and assist it in this matter. We know the changes to the law that the bill can introduce. We believe that, if we are given the opportunity, we can make the bill respond appropriately to the needs of many women.
I return to my original point on parliamentary process. The creation of the Parliament had wide support throughout Scotland. Many organisations that were not particularly animated politically saw the Parliament as a vehicle for the delivery of real change. Certainly, many of the women's organisations with which I worked were very committed to the Parliament for that reason. I urge members of the committee to look sympathetically on our proposals, which I think will meet the needs of those individuals and organisations that would like us to take every opportunity to maximise change to the law as speedily as possible.
I want to reply to two points in particular. The first was made by Gil Paterson. As I understand it, one of the advantages of the 1981 act is that a woman who gets an exclusion order can have a power of arrest attached to an interdict without having to attend a second hearing. Indeed, the court must attach a power of arrest where it makes an exclusion order. Where there is no exclusion order, there is a special procedure under rules of court for a hearing within seven days of the interdict. That issue is perhaps a matter for the committee, which could seek a similar time limit in the bill or in the rules of court. I understand that the latter would involve liaison with the Sheriff Court Rules Council.
Secondly, I will deal with what Mike Rumbles said. I am not one to duck an argument if an argument is going on, as he well knows. We have had a reasonable exchange of views, although those views are different. In fairness, I think that he has done the committee an injustice, as all committee members made it abundantly clear that the proposed bill would be de facto gender neutral and would assist all sorts of people in different relationships and in different settings. His comments were unfair to the committee.
I would be absolutely delighted if that were the case. My point is that the proposed bill should be gender neutral. I did not participate in the Justice and Home Affairs Committee's meetings, but I read its report thoroughly—it is on that that I based my comments. I talked about the impression that the report gives.
I understood that Mike Rumbles's argument was that the committee used sexist language—that is his definition—by referring to women rather than to people. I understand why the committee got the evidence that it did—we must all make an attempt to understand that. The point to which Johann Lamont alluded was that the vast majority of people who work in this area work with women; I say to Mike Rumbles categorically that that is why they described the experiences of women.
I ask Mike Rumbles to bear with me and allow me to finish my point. In 93 per cent of the cases in which the sex of the victim was recorded, the victim was female. [Interruption.] I ask Mike Rumbles please to bear with me. Equally, in those cases in which the perpetrator's sex was recorded, 93 per cent of the perpetrators were male. Incidents involving a female victim and a male perpetrator represented 92 per cent of all incidents of domestic abuse where that information was recorded.
I ask Mike Rumbles to bear with me and to listen to my point. Then I will let him back in.
No, minister—you are on your last minute.
I was about to tell Mike Rumbles that the Scottish Executive has commissioned research to examine male abuse. If there is a problem that we are not understanding, I would be the first—[Interruption.] We have commissioned research to look into that issue and we will give Mike Rumbles the results of that research. However, he cannot deny the gender-based nature of domestic violence in Britain. I am sure that the debate will continue, but we must pay attention to that point.
I want to address the broader questions. Domestic abuse is on all our agendas. We have the "National Strategy to Address Domestic Abuse in Scotland" and an action plan, which we are already implementing. As Lyndsay McIntosh said, we have already announced the £18 million of extra funding, part of which funds the "Behind Closed Doors" campaign. I am pleased to note that that campaign is having some effect.
We are considering how to develop effective and affordable ways of getting advice to victims and of enabling victims to access the courts where necessary. I understand that the Justice 1 Committee is considering legal aid; the Executive will respond to that inquiry, and to the many points about legal aid that have been made, when the committee produces its report.
We must be vigilant and protect all victims, but we must also be careful that the breadth of coverage of the proposed bill is not used oppressively. We can restrict a defender's liberty no more than is necessary for the protection of the victim.
We earnestly hope that the legal system and the courts will do their best to assess threats accurately and to play their proper part in deterring abusive behaviour.
The problems that have been raised in the debate are not straightforward. During the recent debate on stalking and harassment, Jim Wallace promised that the Executive would work with the police and the director of judicial studies to ensure that all those who deal with those problems have proper training and advice.
Across the Parliament and across all parties—from individual members and cross-party groups to committees and the Executive—there is a commitment to tackle domestic abuse. We know that the issue is varied and complex and that it demands varied and complex responses. I hope that the Executive proposals will assist the committee, whose members I congratulate.
Lyndsay McIntosh said that she was depressed by the fact that members of the press never attend such debates, which never get the attention that is due to them, despite the real commitment of all members of the Parliament. Maureen Macmillan said that the proposed bill will save lives: that is a better target than attracting headlines. The committee and Maureen should take the credit that they deserve for today's debate.
I would like to thank all members who have taken part in this debate. This is an issue on which there is great consensus. As Phil Gallie will agree, the Justice and Home Affairs Committee was the home of consensus.
We have been working on this issue for a long time now. On 31 August 1999 Maureen Macmillan introduced the proposal to extend the scope of interdicts under the Matrimonial Homes (Family Protection) (Scotland) Act 1981. We were concerned to increase protection from abuse and, ever since, we have been conducting inquiries, taking evidence and writing reports. It would be wrong of me not to add my voice of thanks to the tributes to Maureen for what she has done.
Alasdair Morgan has already told the chamber that we are considering a number of options. In the context of what the Executive wants us to do, I want to emphasise that point. It is worth repeating that we began our investigation by considering whether to amend the 1981 act. We wanted the legislation to provide protection for a greater number of people. At the moment, spouses and people who are defined as cohabitants can apply for an exclusion order to do with the home. They can get an interdict to prevent their former partner from engaging in abusive or offensive conduct. To that can be attached the power of arrest, so that, if there is a breach, action can be taken.
The committee agreed on the necessity of the power of arrest as a remedy against threatened abuse. We immediately thought, "Let us widen the 1981 act." We considered widening the definition of cohabitant. However, we became conscious that doing so would not be without complications. I think that it was Anne Smith who, in her well-thought-out evidence, used the word "nightmare". We concluded that we were missing the fundamental point. Protection should be for anyone, man or woman. It should not be just for partners, but should be for anyone who is at risk. It should not be dependent on providing evidence of a particular kind of relationship.
As Alasdair Morgan described, we then considered working along the same lines as the Protection from Harassment Act 1997, so that a breach of a court order would be a criminal offence. We decided not to go along those lines. Doing so would put the decision into the procurator fiscal system, rather than into the hands of the person who is being abused. On balance, we thought that that was wrong. Not every situation ends with parties separating. Sometimes, happily, there is reconciliation. We did not want to do anything that could hinder that.
We therefore decided that the simple thing to do would be to add the power of arrest to any common-law interdict. As long as a test, which will be carefully formulated, can be satisfied, the power of arrest can be attached.
I have been looking back over the evidence that we took to find out how we came to make that decision, and it seemed to come as we floated ideas to witnesses almost like a stream of consciousness.
The blinding flash that Pauline McNeill referred to came from Sheriff Wilkinson of the Sheriffs Association, who put us on the simple path that Gordon Jackson is talking about. I can remember the moment.
I am sure that that is right. Every time that the idea was suggested, everyone went, "Hey, that's a good idea." Whether it came from the sheriffs, or Anne Smith, or the chief police officers, it was well received. We thought that a committee bill could achieve what we wanted to achieve.
The proposal is simple. A common-law interdict of any kind can, in theory, providing a test is satisfied, have a power of arrest. The sheriff will decide on the likelihood of abuse or danger and, if satisfied of risk, will put the power of arrest in place.
In that context, I would like to mention two things that have been said in the debate. Gil Paterson spoke about time gaps. In reality, some time gap before the power of arrest is granted is absolutely unavoidable. However, the interim interdict will be granted immediately, so there is some protection from the first moment. It will normally take a week before a power of arrest can be put in place. Perhaps that could be shortened, but some time gap is legally impossible to avoid.
I am certainly not going to fight with Mike Rumbles about gender—we have had that argument before and we have had enough of it. I emphasise that the bill will be gender neutral, so we can put minds at rest on that.
I have only four more minutes in which to deal with the difficulty that we now have, which is what to do about the Executive's proposal to add amendments to the Matrimonial Homes (Family Protection) (Scotland) Act 1981 to the bill. I am not unsympathetic to that and I think no one in the Parliament would have difficulty with the content of the proposed amendments. However, adding them to the bill raises two questions. The first is about delay. We cannot ignore that problem. I am the last man to be melodramatic, but delay in bringing the proposed act into force could be a matter of life and death for someone. Having said that, there might not be a huge problem of delay. Looking quickly through the evidence to the Justice and Home Affairs Committee I see that the issues were very largely dealt with in it, so we would not have to start from the beginning in looking at the Executive's proposals. Shona Smith of the Family Law Association dealt with widening the provision to other cohabiting couples and said that that should be done as a matter of urgency.
The second question is whether the amendments are necessary. The 1981 act is not the answer; it never could provide the solution that the bill we are discussing would. If I may boast on the committee's behalf, the great value of what we have done is that we have found a very simple solution to a very complex problem. It is a lesson that often the best solution to complex difficulties can be a very simple one.
On the other hand, I accept that we are not superseding the 1981 act and that there will be occasions when it will still be the appropriate means to prevent abuse, particularly when there are other matters of matrimonial property to be dealt with. There is a great deal of good and no harm in amending that act, but it is less clear that amending it is necessary and that it is worth delaying the bill to do so. Even as a lawyer, it is not clear to me what a person in danger of abuse could do using an amended 1981 act that they could not do using the existing legislation plus the bill we are now proposing. I have been racking my brains all afternoon to think of one benefit that amending the 1981 act would give, over and above what we are proposing.
Although I have no committee mandate to suggest it, I think that the Justice 1 Committee should look at what the ministers want but that the Executive should not take our response for granted. Margaret Curran said that what is being suggested will "improve and offer protection"—I suppose she meant greater protection. The Executive will have to make a case for that. I do not think that we are unfair to ask for that—it is for the Executive to show what advantage is gained by amending the 1981 act, over and above what we are now proposing. I am open to an answer to that question but I do not yet see it.
The Justice and Home Affairs Committee worked very hard during the inquiry and so did its staff. I pay tribute not only to the members of the committee for the way we dealt with it, but to the committee staff and clerks for the tremendous help that they gave.
We examined all the possibilities and we have come up with something that will really help victims of abuse. In doing so we have shown what the committee system of the Parliament can do. We have come up with a very simple but wonderfully effective solution. I commend the report and the proposed bill to the chamber.