Chamber and committees

I express my thanks to Collette Stevenson for lodging the motion for today’s debate on domestic abuse in LGBTQI+ relationships. I also give my thanks to Emma Roddick for all the work that she has done, and that I know she will champion from the back benches, for the LGBTQI+ community. I am proud to be closing the debate, and have found all members’ contributions to be powerful and thought-provoking.

Intimate partner violence in same-sex relationships is devastating and heartbreaking, and no one should ever have to endure it. I pay tribute to the brave victims who have shown real courage in recounting their stories and shining a light on this important issue. I also acknowledge the specific barriers that LGBTQI+ people can face when accessing services and support.

All domestic abuse and violence is abhorrent, irrespective of the sex, sexual orientation or gender identity of the victim or the perpetrator. That is why our ground-breaking domestic abuse legislation, which came into effect in 2019, applies to everyone and makes it absolutely clear that coercive and controlling behaviour is domestic abuse and a crime. It is also why the Scottish Government funds services that support LGBTQI+ survivors of domestic and sexual abuse.

It is vital that perpetrators are held to account and that victims have access to front-line services that deal with violence and domestic abuse. The Domestic Abuse (Scotland) Act 2018 created a specific offence of domestic abuse that covers not just physical abuse, but covers other forms of psychological abuse as well as coercive and controlling behaviour. We must treat domestic abuse survivors with compassion and we must make available services that acknowledge the significant trauma that they experience.

Research on the operation of our legislation on domestic abuse has found that it better reflects victims’ experiences. However, we must never be complacent but must instead recognise that we can always do more and do better.

It is also vital that specialist services are available for survivors. Our delivering equally safe fund has provided support to LGBTQI+ projects that are working to address domestic abuse. That includes Sacro’s FearFree service, which provides one-to-one support for male and LGBT victims of domestic abuse; the voices unheard focus group, which aimed to raise awareness among decision makers of LGBTQI+ experiences of domestic abuse and gender-based violence; and Scotland’s Domestic Abuse and Forced Marriage Helpline, which provides support to all survivors.

Additionally, we allocated £16.2 million between 2017-18 and 2023-24 to support the development of a sexual assault response co-ordination service in every health board in Scotland. SARCS offers a healthcare assessment and forensic medical examination for people who have recently experienced rape or sexual assault. Anyone who is aged 16 or over can, subject to professional judgement, access healthcare and request a forensic medical examination in the days following an assault without first having to make a report to the police. I acknowledge that that is a very sensitive issue.

We know, from listening to survivors, that access to self-referral is an important aspect of giving control back to people. The Scottish Government remains committed to continuous improvement of SARCS, with further funding planned for 2024-25, bringing our total investment to almost £18 million over seven years.

Although domestic abuse is most frequently perpetrated by males against their female partners, all domestic abuse and violence is unacceptable. We published our refreshed equally safe strategy last December. The strategy recognises LGBTQI+ people’s experiences of domestic abuse and other forms of gender-based violence. Key LGBTQI+ stakeholders were consulted as part of the engagement process, and helped to shape the strategy and its references to LGBTQI+ people’s experiences.

We know that the global evidence base shows that women and girls are disproportionately impacted by specific forms of violence such as domestic abuse. The equally safe strategy is based on the framing of the United Nations and World Health Organization, and has been acknowledged as a model of excellence.

However, our approach does not negate the experiences of male victims of crimes such as domestic and sexual violence. Gender norms that promote ideals of masculinity that are based on men’s power over women and children can also lead to men’s experiences of abuse during childhood and sexual violence during adulthood. That is why the Scottish Government understands LGBTQI+ people’s experiences of domestic abuse to be a form of gender-based violence. Key stakeholders also understand the issue in that way.

We are committed to advancing equality for LGBTQI+ people and to promoting, protecting and realising the rights of every LGBTQI+ person in Scotland. We will continue to fund third sector organisations to ensure that the voices of those with lived experience can help to improve outcomes for LGBTQI+ communities across Scotland.

I thank Dr Steven Maxwell, Professor Jamie Frankis and colleagues for their research on LGBTQ+ intimate partner violence and I thank the victims who bravely shared their stories. As was highlighted in the research and at the subsequent parliamentary round-table event in February, it is clear that significant challenges remain for LGBTQI+ victims of domestic abuse.

We do not want any victim of LGBTQI+ domestic abuse to be made to feel invisible and we encourage anyone who has experienced abuse to seek the support to which they are entitled. I have outlined some of that support today.

I am fully committed to tackling domestic abuse and am always willing to look at how we can improve our response to all forms of domestic abuse, including in same-sex relationships, by building on the provision that we already have. My door is always open to any MSP who wants to continue conversations on how we can improve things. In response to Emma Harper’s request, I say that I would be very happy to visit the organisation in the south of Scotland that she mentioned.

By working collaboratively and innovatively, we can build a Scotland that is free from all forms of domestic abuse, where no one is left behind.

Currently, only some kinds of appointments of judicial factors need to be publicised and most respondents to the SLC’s consultation were of the view that some form of publication of appointments was necessary. The SLC consulted with the keeper of the registers and concluded that registration in the register of inhibitions was inappropriate.

I do not know whether Michael Paparakis wants to add anything to that.

We will talk to stakeholders, and I will then get back to you on that. I appreciate the points that you have made.

From reading the bill as a whole, I think that it is clear that the nature of the judicial factor’s role is fiduciary. While the term “fiduciary duty” is not used in the bill, the Government considers that the bill will achieve the same effect.

A fiduciary duty is essentially a duty to act in good faith in the interests of another, rather than in one’s own self-interest. Section 10 of the bill makes it clear that judicial factors have

“to hold, manage, administer and protect the factory estate for the benefit of persons with an interest in the estate.”

It also requires judicial factors to

“exercise care, prudence and diligence”

and

“take professional advice when appropriate.”

The Scottish Law Commission told the committee that it had set out

“very clearly in”

its

“report that the essence of the institution was that it was fiduciary”—[Official Report, Delegated Powers and Law Reform Committee, 16 April 2024; c 16.]

and that it was not considered “necessary” to include a specific reference to that in the bill.

I understand that some stakeholders have suggested that the matter should be clarified, but others, such as the SLC and the Faculty of Advocates, have pointed out that to add even a simple statement to that effect could have unintended consequences. However, it might be possible to add something to the explanatory notes to the bill in order to make that point clearer for users of the legislation, and I am willing to consider that further.

Section 23 of the bill contains a general rule that any costs of litigation that is pursued by the judicial factor

“on behalf of the factory estate”

are

“to be met from the factory estate.”

The general rule is, however, “Subject to section 24” of the bill. Under section 24, the court is given the power to find a judicial factor personally liable if they have breached their duty and the court finds it “appropriate” to hold them “personally liable”.

We need to strike the right balance to allow a judicial factor reasonable space to manage an estate in good faith. I do not think that a judicial factor should be found personally liable if, with the benefit of hindsight, their actions are found to have been unreasonable but there has been no breach of duty.

Given the continuing need for competent judicial factors, we must be careful, and we do not necessarily want to put blocks in the way of people wanting to be appointed. Allowing for judicial factors to be held personally liable for taking actions that do not amount to a breach of duty would, in my view, be likely to discourage judicial factors from pursuing litigation that is in the interests of the estate, and perhaps even discourage individuals from acting as judicial factors altogether.

I consider that the bill and the 1977 act work alongside each other. The bill allows for the appointment of a judicial factor to manage the estate of a missing person. If the missing person is subsequently declared dead by way of an application under the 1977 act, the purpose for which the judicial factor was appointed would no longer exist and the judicial factory would be terminated. As the committee heard, families of missing people may not want to apply immediately for a declarator, and the appointment of a judicial factor to manage the missing person’s estate is an alternative.

You would think that they were an accountant per se.

You raise a valid point. In general, a layperson would probably assume that the Accountant of Court was an accountant, so we could perhaps look at how we make that a bit clearer.

If I may, I will bring in Michael Paparakis, because he has a lot of knowledge of the history and the technical aspects of the role.

We are happy to consider that further.