Domestic Violence
Item 3, on domestic violence, is accompanied by a note from the assistant clerk and Maureen Macmillan, the reporter. The intention is to try to get an idea from the committee about how we wish to take the item forward. I understand that Maureen has not yet been able to meet the Minister for Justice—she may wish to say something about that—to discuss the interplay between what the committee is proposing and his surprise announcement about the introduction of domestic interdicts, which may have some bearing on how Maureen wishes us to proceed.
I understand that a meeting has been set up with the Minister and Deputy Minister for Communities on 17 February, so this item will undoubtedly appear on the agenda of the meeting on 22 February. Again, a final decision may not be advisable today. Do you wish to speak to this item, Maureen?
Yes, I thought I would give a résumé of how we have reached the current situation. The Matrimonial Homes (Family Protection) (Scotland) Act 1981 was aimed at excluding a violent husband from the family home. The tenancy or ownership of the home would probably have been in the husband's name in 1981. The exclusion meant that the woman was protected from his violence and could continue to live with her children, if any, at her home. That was the purpose of the act. I should point out that I am just using the words "husband" and "woman" as shorthand.
The powers of arrest were attached to the interdict to give it teeth, and the exclusion zone might have been extended, for example, to the street where the house was located or to the wife's place of work. All such protection was based on the occupancy rights of the spouse to the matrimonial home. Serious drawbacks to the 1981 act soon became apparent, and they increased with changing social conditions. On divorce, the couple ceased to be spouses, and protection ceased despite that being a time when danger to the woman increased.
If a couple was cohabiting, the act applied if they were joint tenants or owners. If the woman was not a tenant, she had to apply to the court for occupancy rights, which could take time and make her more liable to abuse and intimidation.
Same-gender couples and other family members could not access protection because they were not spouses. I would say that there is an urgent need for a law that protects the whole range of people who suffer from domestic abuse. When we took evidence on this matter in the autumn, it became apparent to me that if the occupancy rights qualification for accessing protection were retained, it would be extremely difficult to extend protection to all those who required it.
Other members of the committee shared that point of view, and it was suggested that we examine the possibility of introducing a completely separate bill to protect people from domestic abuse. The bill would add powers of arrest to a common law interdict in cases of domestic abuse. It would complement the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and could offer protection to those excluded from that act, but would not be able to deprive a person of his or her occupancy rights to their home. There will always be some people—usually married couples—for whom the matrimonial homes act will be more appropriate.
The reaction from the organisations with whom I discussed the proposals has been very positive. Although there have been differences in emphasis, there is agreement that court procedures could broadly follow those for the matrimonial homes act. The details of the court procedures are in the paper members have in front of them. The difference would not be the court procedure, but the definition of who could access protection.
Affordability is allied to protection. I am concerned that victims of domestic abuse may not be able to take full advantage of any new inclusive legislation because of the civil legal aid regulations, which require people on fairly low incomes to pay several hundred pounds towards court costs. I would hope that no contributions should be required for an interdict to protect from violence, because I do not believe that people should have to pay for personal protection.
Since we began our investigation, the Executive has announced, as Roseanna Cunningham said, that it is introducing proposals to reform family law, including the 1981 act. We knew that that was going to be part of the programme, but I hope that the committee's work and my research can speed up change in this aspect of the law, in advance of the Executive's proposals. I think that change is urgently needed, as victims can be seriously injured or killed.
I had hoped to meet the Deputy First Minister last week, but the meeting has been postponed until next week. I want to find the quickest way forward. I want to talk to Mr Wallace. I hope that he will appreciate the work that we have done and accept that it could be used to initiate legislation sooner rather than later. I do not know what method will be used.
I suspect that it will take quite a long time for the Executive's proposals to reform family law to become law. I hope that, if a bill is introduced—either a member's bill in my name or a committee bill—the change will be achieved more quickly. However, the clerks have no idea how long it will take. Considering that the committee has a lot of other business, the quickest method may be for me to initiate a member's bill.
A meeting has been set up for 17 February. It would therefore be premature of the committee to make a final decision now. I hope that Maureen will press the minister on the time scale for his proposals. We must make it clear to him that the committee will make a final decision on 22 February and that if we are not convinced about the Executive's time scale, the likelihood is that we will want to press ahead ourselves.
On the merits of a member's bill as opposed to a committee bill, a member's bill would simply be referred to this committee anyway, so I am not sure that that is the best option.
According to the clerks, that is not necessarily the case.
The advantage of a committee bill is that committee business can command time in the chamber. There is no real ability to command time for members' business. Standing orders allow for hours to be set aside for committee business in the chamber. For example, the Standards Committee has had time set aside in the chamber to discuss the code of conduct. The Procedures Committee has also had chamber time. We will need to explore those issues with the clerk to ensure that we reach a balanced decision on how to proceed. However, in any case, it would be premature to make a decision now.
I have a question, which might be a stupid one, but it is a long time since we discussed the matter. Perhaps Maureen Macmillan or Fiona Groves will be able to help me. The proposal is for a bill that will either amend the matrimonial homes act to cover former spouses or provide domestic violence interdicts. Why are those two things mutually exclusive? Have I lost the plot? Why can one bill not do both?
Because one is attached to property and occupancy rights. The Matrimonial Homes (Family Protection) (Scotland) Act 1981 gives protection to spouses, because of their occupancy rights in the matrimonial home. The legislation was designed to exclude violent husbands from the matrimonial home.
It is coming back to me. I could not remember what the problem was, because it has been so long. I am open to forgetting things, but I remember now.
The protection was secondary. The legislation was designed to give the woman the house.
I suggest that we postpone the issue until the meeting on 22 February at which I would expect us to make a final decision. That will allow Maureen to press the minister as strongly as she can and to use the threat of the committee to hurry him along, if that looks as if it will work.
Another interesting point to note is that we are entitled to legal advice on the drafting of committee bills, which is quite rare. That would be very useful, particularly if we go for the stand-alone option, which in my view is the best. We could then press on quite quickly, which would resolve some of the practical issues.
I thought that the clerk's note was fairly straightforward, but if we want to simplify the matter, we will get an outline of the pros and cons of the committee bill process and the member's bill process at the meeting on 22 February, so that we can weigh up the advantages and ensure that we choose the best way to push the matter forward.
I suggest that we remit the matter to the meeting of 22 February. We thank Maureen Macmillan for the work that she has done so far and look forward to the final part of this stage of the process on 22 February.