Meeting of the Parliament

Meeting date: Thursday, September 28, 2017

Official Report 888KB pdf

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Domestic Abuse (Scotland) Bill: Stage 1

We are perhaps slightly ahead of where people would expect us to be. I am glad that virtually all the members whom we expected are here for the next debate.

Our next item of business is a debate on motion S5M-07905, in the name of Michael Matheson, on stage 1 of the Domestic Abuse (Scotland) Bill. I call Michael Matheson to speak to and move the motion.

15:11  

Everyone in the chamber is aware that domestic abuse blights the lives of too many people in Scotland. Domestic abuse might not be obvious, because it is largely hidden and often occurs behind closed doors and out of sight, but we know that it is widespread.

The number of incidents is truly shocking. Even if they do not know it, everyone in the chamber is likely to have family or friends who have been abused or are being abused by a partner or ex-partner. In 2015-16, almost 60,000 domestic abuse incidents were reported to the police, but that is likely to be a significant underestimation of the true extent of domestic abuse. In 2014-15, the Scottish crime and justice survey found that only a fifth of people who had experienced partner abuse in the previous 12 months said that the police knew about the most recent incident. Fourteen per cent of adults have experienced partner abuse since the age of 16.

Anyone can be a victim of domestic abuse. It is most definitely not restricted to one gender or class, or to rural or urban areas. However, we know that women are disproportionately likely to be victims of domestic abuse: twice as many women as men report having experienced partner abuse in the previous 12 months, and nearly 80 per cent of all incidents of domestic abuse that were recorded by the police in 2015-16 had a female victim and a male perpetrator.

We, as a Parliament and a society, have moved a long way in our understanding of domestic abuse since the Scottish Parliament was established in 1999. I was a founding member of the Justice and Home Affairs Committee in this Parliament, and I well remember key stakeholders and groups such as Scottish Women’s Aid coming to the committee to seek to explain why steps were needed to tackle domestic abuse. Back then, it was sadly the case that too many people in our society saw domestic abuse solely in terms of physical violence.

Crucially, there was also an attitude in some parts of society that domestic abuse was a private matter that was no business of the police or anyone else. Time has moved on and attitudes have—thankfully—evolved. Our modern understanding of domestic abuse, which has been shaped by the experience of women who have been affected and the groups that help them, is now such that we know that domestic abuse is commonly experienced as a pattern of abusive behaviour that is sustained over time. It can take the form of physical violence or even overt threats, but it can also take a form of the abuser behaving in a highly controlling, coercive and abusive way over a long period of time. The Domestic Abuse (Scotland) Bill is the Scottish Government’s and Scottish Parliament’s next important step in the fight to address the scourge that is domestic abuse.

Parliament has already taken action to reform the criminal law concerning domestic abuse. In 2010, the Scottish Government ensured that what might be described as the traditionally understood form of domestic abuse, which was prosecuted using the common law offence of breach of the peace, could continue to be prosecuted using a new statutory offence of threatening and abusive behaviour. That followed a court judgment that called into question the scope of the offence of breach of the peace.

The Scottish Parliament has also legislated to create an offence of stalking, which can, on occasion, be relevant in cases of domestic abuse. However, notwithstanding those reforms, it is clear that the criminal law does not fully reflect what domestic abuse is in all its forms, as our modern understanding reveals.

As many members will know, the then Solicitor General for Scotland, Lesley Thomson QC, called on the Scottish Parliament in 2014 to consider the creation of a specific offence of domestic abuse. She said that, in her experience of prosecuting domestic abuse, the existing criminal law did not always reflect the experience of victims of long-term domestic abuse. The explanation that was given for that was that because the law focused on individual instances of, for example, threatening behaviour or assault, it did not reflect the fact that domestic abuse is commonly experienced as a pattern of abusive behaviour that is sustained over time.

The kind of cases that stakeholders have highlighted as being difficult to prosecute using the existing law are those in which an abuser behaves in a highly controlling, manipulative and abusive way towards their partner over a long period of time. Examples of what abusers may do to humiliate their partners are horrendous: forcing them to eat food off the floor, controlling access to the toilet or repeatedly putting them down or telling them that they are worthless.

Abusers can also try to control every aspect of their partner’s life—for example, preventing them from attending work or college; stopping them making contact with their family and friends; giving them no or limited access to money; and checking or controlling their use of their phone and of social media. Those actions are often not accompanied by physical violence or overt threats, because the abuser knows that the victim may be in so much fear of their partner that they do not need to take physical or threatening action in order to exert control.

That behaviour can be very difficult to prosecute under our existing law. Even where a prosecution is possible, a conviction—for example, for an incident of threatening or abusive behaviour—may leave the victim feeling that the court process and the sentence that was imposed did not reflect the reality of the abuse that they had experienced.

The centrepiece of the bill is the new offence of domestic abuse. The new offence modernises the criminal law to reflect our understanding of what domestic abuse is by providing for a specific offence that is intended to be comprehensive, so that abuse in its totality can be prosecuted as a single offence. It is a course-of-conduct offence that enables the entirety of the perpetrator’s abusive behaviour to be included in a single charge. That will allow the court to consider the totality of the abuse that is alleged to have taken place. It will enable the court to consider behaviour that would be criminal under the existing law, such as assault and threats, as well as psychological abuse and coercive and controlling behaviour, which can be difficult to prosecute under our existing law.

I am grateful to the cabinet secretary for the way in which he has set out the proposition that is under scrutiny. He will be aware that the Justice Committee heard evidence that the evidential bar for prosecuting criminal offences is potentially set too low. I think that the Scottish Government’s response to the committee’s report is very helpful in setting out why that is not the case, but perhaps the cabinet secretary could read that explanation into the record for the benefit of Parliament.

I will seek to do so. As we said in our response to the committee’s report, we believe that we have set the bar at the right level. Our response reinforces the oral evidence that I gave to the committee, in which I said that we believe that the qualifying criteria for engaging the offence have been set at the right level, and that the courts will interpret that bar appropriately.

As well as criminalising specific behaviour such as violent behaviour, the new offence will criminalise other types of behaviour by reference to its effect on the partner, or ex-partner. For example, the offence seeks to cover behaviour including unreasonably restricting access to money, by reference to the fact that that might make the partner feel dependent on, or subordinate to, the perpetrator.

Children, too, are harmed by domestic abuse. When a parent is abused, that always brings harm to the child, either directly, as a result of the child witnessing the abuse, or indirectly, with the child being affected by the effect of the abuse on their parent. In line with the long-established definition of domestic abuse, the bill is about creating a new offence of domestic abuse between partners or ex-partners. The harm that is caused to children will be acknowledged through the new statutory aggravation. When children are involved, that can be reflected by the court when the perpetrator is sentenced.

I welcome the Justice Committee’s stage 1 report, which supports the general principles of the bill. I thank the organisations and, in particular, the individuals who contributed to it—not least, those who shared with the committee their personal experiences of suffering domestic abuse in order to assist the committee with its consideration of the bill. The committee has raised a number of important issues, including how we might expand the scope of the power to impose non-harassment orders in order to protect the children of the victim; the proposal to create emergency banning orders that would ban the perpetrator from the victim’s home; and issues concerning the interaction between criminal domestic abuse cases and the civil child-contact case process.

The Scottish Government has responded to the stage 1 report’s recommendations, and I will listen carefully to the views that are offered on those issues in the debate ahead of stage 2.

I welcome the cabinet secretary’s thanking of all the groups that have contributed to the bill. Scottish Women’s Aid and Children 1st have both called for the inclusion in the bill of a parallel offence on the impact that domestic abuse has on children. Is the cabinet secretary’s mind still open to that, at this stage?

I ask the cabinet secretary to address that and to draw his remarks to a conclusion.

We have responded to the committee by setting out that the approach that we will take will be to reform child welfare legislation, which will allow us to consider creating a specific measure to tackle the effect that domestic abuse has on children. That is a more appropriate avenue for considering the issue. The reason for that is partly that the qualifying criteria that are set out in the bill in relation to adults would be very difficult to apply to children. That is why it is important that we take a different approach to dealing with children, in this context. We must ensure that not only the approach in the bill but the approach for children that we take in the future can work.

The creation of a new offence of domestic abuse will not on its own end domestic abuse, but it is a groundbreaking approach that will put Scotland at the forefront of efforts to tackle the scourge of psychological abuse and coercive control. The new offence will provide greater clarity for victims and send a clear signal that what their partners do to them is not only wrong but criminal. It will improve the ability of the police and our prosecutors to intervene in cases, and it will change societal attitudes about what domestic abuse is. Domestic abuse is not only physical violence but psychological abuse, whereby someone exerts total control over a partner’s every movement and action, thereby forcing them to live in constant fear.

For too long, the attitude has been allowed to linger that domestic abuse is a private matter that is no business of the criminal law. The bill makes it crystal clear that those days are long gone.

I move,

That the Parliament agrees to the general principles of the Domestic Abuse (Scotland) Bill.

15:26  

I am pleased to speak on behalf of the Justice Committee in this important debate.

The committee took evidence on the bill over six meetings, earlier this year. We held private meetings with survivors of psychological domestic abuse from different parts of Scotland, and we received written evidence from more than 40 organisations and individuals.

The new domestic abuse offence in the bill is intended to address a gap in the law: the lack of a criminal remedy when domestic abuse is primarily psychological in nature, in a relationship in which one party seeks to control and dominate the other. The committee heard that the current law is not well equipped to handle situations in which abuse consists of a course of behaviour, as opposed to an isolated incident. That means that the current law does not effectively reflect the lived experience of many victims.

The private meetings that committee members had with survivors of psychological domestic abuse helped us immensely to better understand the nature of such abuse and the trauma that it causes. It was sobering to reflect that some of the appalling conduct that victims described cannot currently be prosecuted.

Police Scotland, the Crown Office and Procurator Fiscal Service and many third sector organisations who gave evidence were all of the view that reform is overdue. The committee agrees.

However, a minority of witnesses, including legal academics and the Scottish Police Federation, expressed significant concern about the new offence. They said that it is not easy to legislate in the realm of human relationships and that there is a risk of inadvertently making bad law, which could result in an individual being charged for behaviour that is not, by any reasonable standards, criminal, or being charged when there is no clear evidence that a crime has been committed.

The committee considered the evidence carefully and took into account the counterarguments from witnesses who disagreed with that view. For example, Detective Chief Superintendent Lesley Boal said that officers were not being called on to do anything especially new, given that they already deal with complex abuse and child welfare cases.

The counterarguments also recognised that aspects of the new offence, as with any new offence, will give rise to questions of interpretation. The committee was persuaded by evidence that emphasised that an understanding of the context of the behaviour is crucial. In some contexts, even the most innocuous-seeming comment might be a chilling threat.

The new offence addresses abuse by partners, but the drafting recognises that perpetrators sometimes use third parties—children, in particular—as a means of control. The bill makes provision for a statutory aggravator for instances of partner abuse in which children are directly involved.

Although that was welcomed, some considered that the bill should have gone further by recognising abuse of a child as a criminal act in its own right. The committee understands those views, but notes the Scottish Government’s response confirming that the bill was never intended to have that wider focus. Instead, the Government has committed to consulting on the issue in the near future.

With regard to implementation, the committee recommends that there be a publicity campaign to draw attention to the new law and to underline that psychological abuse in a relationship is totally unacceptable. The committee also considers that police and prosecutors must set clear policies on how they intend to enforce the new offence and—crucially—those policies must be kept under review in the light of experience.

Furthermore, evidence indicates that the new offence is likely to be relatively resource intensive, especially given that cases can be complex and vulnerable victims and witnesses will almost certainly need support. The committee therefore recommends that the funding of agencies dealing with the new offences be kept under review, too.

Some evidence was led, suggesting that there was an excessive focus on punishment in handling domestic abuse. However, many others, including Social Work Scotland, strongly disagreed with that. As the committee has observed, the punishment for the crime is potentially up to 14 years’ imprisonment, with the possibility of its being imposed on the basis of psychological abuse alone if the court considered that such a move was merited. The committee has asked the Government to expand on its reasons for taking this approach.

The bill’s remaining reforms are mainly procedural or evidential changes to the law on domestic abuse, but they are important to ensure that the justice system supports rather than re-traumatises victims of abuse. One such reform is the proposal to require a court to consider whether a non-harassment order should be made at the end of every domestic abuse criminal case. The committee is supportive of that recommendation, especially as the current law, which places the initiative on the prosecutor, is not resulting in such orders being used when it is appropriate to do so. That said, the committee has taken cognisance of the fact that an NHO does not always offer the victim the protection that was intended, and it has asked the Government to respond to that point.

In addition, some organisations have made a case with regard to the advantages of and the need for so-called emergency barring orders, which would immediately exclude an abuser from a victim’s home. The committee has agreed to take more evidence on that issue at stage 2.

Finally, the issue of civil court decisions not taking cognisance of criminal court convictions was raised, especially in relation to contact with the child of a person who had been the victim of domestic abuse. The committee has noted the issue.

In closing, I want to pay tribute to the courage and eloquence of those victims of abuse who shared their stories with the committee. In so doing, they have, without doubt, helped to underline why this bill has the potential to improve our justice system. The committee therefore recommends that the Parliament approve the general principles of the bill.

15:33  

I echo the cabinet secretary and the convener of the Justice Committee in thanking everyone who gave evidence to the committee as well as the clerks and the Scottish Parliament information centre for all their assistance.

In its current form, the criminal law focuses on discrete incidents of physical violence or threatening behaviour that causes fear or alarm, and it can fail to recognise the lived experience of domestic abuse as a course of conduct over a period of time. The bill seeks to bridge that gap, making it possible inter alia to convict an individual on the basis of a course of conduct that includes psychological abuse.

As the cabinet secretary has made clear, the intention of the bill, if passed, is to improve the justice system’s response to domestic abuse, principally by creating a new offence of engaging in an abusive course of conduct—even if it is entirely non-physical—against a partner or ex-partner, and it will also amend procedural and evidential aspects of criminal law with a view to tipping the balance in favour of domestic abuse victims. Accordingly, I confirm that the Scottish Conservatives support the bill in principle and will vote to agree to its general principles at decision time.

The bill seeks to address a lacuna in the legislative landscape. The committee heard compelling and persuasive evidence from a number of organisations, social workers, the Equality and Human Rights Commission and from abuse survivors. Some of the harrowing conduct that was described to the committee is not currently criminal and therefore cannot be prosecuted, and it is that which the bill seeks to address.

Some areas merit further consideration, and my colleagues will pick up on those throughout the debate. Concerns have been expressed about whether the bill risks setting the bar of criminality too low, which could potentially lead to the wrong cases being prosecuted. Calum Steele of the Scottish Police Federation gave evidence that couples at the time of a relationship breakdown may sometimes be “particularly horrible” to each other but, a few months down the line, the parties may regret getting the criminal justice system involved.

Andrew Tickell of Glasgow Caledonian University law school expressed concerns about overcriminalisation when the law intervenes in family and romantic life. He had particular concerns about the use of the word “distress” to define psychological harm, as it is a novel term in criminal law.

The SPF further expressed disquiet around officers becoming pawns in routine family disagreements, with Calum Steele noting that there is a “fundamental difference” between arresting on the basis of physical evidence and interpreting whether there has been psychological abuse. He said that, at the very least, officers would need training to apply the law. I agree with the point that Liam McArthur made in his intervention that the cabinet secretary’s response to the committee’s stage 1 report is useful in that regard, as it is in a great deal of respects.

I want to flag up an area that the Scottish Government might wish to consider. Courts can sometimes seem stacked against domestic abuse survivors. There is an acceptance that the judicial process for domestic abuse victims is traumatic and that steps should be taken to minimise what they have to relive and, as the committee’s report suggests, to ensure that people are not revictimised by the criminal justice process. The Scottish Government accepts that point in the policy memorandum on the bill.

The issue potentially persists where victims of domestic abuse have to recount their case to multiple sheriffs. Far too often in cases of domestic abuse, there may be a number of issues, for example divorce and/or child residence arrangements, as well as the domestic abuse. Those will be heard in different arenas, with perhaps one sheriff in a civil court hearing evidence during the divorce proceedings and a separate sheriff in a criminal court for the domestic violence. There is also the possibility that multiple sheriffs will deal with different stages of a civil case. According to SPICe,

“At present, a number of sheriffs can be involved in an individual family case. There is no system whereby the same sheriff deals with every stage of the civil case.”

That means that, potentially, victims have to repeatedly relive their ordeal. Domestic violence victims face many barriers to safety and independence, but incomprehensible and/or overcomplex court proceedings should not be one.

Trials of a one family, one judge system to address the issue have been carried out in the US, Australia and New Zealand. In that system, to avoid unnecessary trauma the victim has to recount their experience to only a single judge. In England, there have been trials of an integrated domestic violence court, in which one judge handles the criminal cases related to domestic violence as well as all accompanying civil matters. The single presiding judge is cross-trained to handle all matters—criminal and civil—relating to a family. Arguably, by concentrating responsibility, that integrated court speeds decision making and eliminates the potential for conflicting judicial orders.

The approach can also increase co-ordination among criminal justice and community-based social service agencies and may improve the ability to keep tabs on defendants and to respond quickly to allegations of non-compliance with imposed orders. It may reduce the number of court appearances, thereby streamlining the process and meaning that the trauma of retelling the incident numerous times can be avoided. A review found:

“The evidence on IDVCs is promising and indicates there are advantages to bringing together family, civil, and criminal cases.”

I accept that there are issues to be addressed. Difficulties can arise when the evidence given in one case differs from that given in another, and there could be an administrative burden in ensuring that the same judge deals with both matters. Proper procedures, administration and resources would require to be in place to make it happen, but a one family, one sheriff approach for domestic abuse victims in Scotland is surely worth exploring, whether as part of the bill or separately.

Domestic abuse is monstrous and can cause immense and enduring trauma and harm. It has been sobering to hear and read the testimony of victims and the organisations that support them, which has highlighted the fact that there is behaviour that cannot currently be prosecuted because it does not meet the threshold of criminal conduct. It is clear from that evidence that more must be done to support victims, that there is a gap in our law and that the new offence is required.

We agree that the general principles of the Domestic Abuse (Scotland) Bill are sound and we shall vote for it today. However, we are confident that the Government will listen to concerns raised in the Justice Committee’s stage 1 report and during this debate to ensure that the new law is as effective as it can be.

15:40  

Last year, Scottish Women’s Aid reached its 40th year. Its work, from local groups providing support and refuge for women and children who are facing domestic abuse through to its role as a national organisation pushing for political and societal change, has been instrumental in shifting attitudes. That includes the legal system and the police, which have both changed their response to domestic abuse. The difference in how we deal with domestic abuse today compared with how we dealt with it 40 years ago is clear and welcome.

There is no longer an acceptance that domestic abuse is a private matter, that it is the victim’s fault or that the victim could leave if they really wanted to. However, there is still work to be done and, as the bill recognises, there is a gap in the law. The reality facing victims throughout Scotland is that abuse in relationships is as much psychological and emotional in nature as it is physical. A person’s home becomes their prison, their actions are watched, they are cut off from their friends and family and they are at the mercy of their abuser—a person whom they used to love, or even still do. That is why we fully support the recognition of psychological abuse and coercive and controlling behaviour as a crime.

We very much support the general principles of the bill and there is much to welcome. I hope that the cabinet secretary will appreciate that I have only a brief seven minutes and I would like to use my time constructively to consider where we could possibly strengthen the bill. There are achievable ways in which we can make the bill stronger.

Domestic abuse has a devastating impact on the victim. We must also recognise that the impact can spread further than the intended victim and can often have a serious and long-term impact on children. Those children who witness domestic abuse are at increased risk of experiencing mental health problems, developing alcohol or substance abuse problems or entering into abusive relationships themselves. We do not want to be in the position in a few years’ time of considering the bill to have been a missed opportunity.

Scottish Women’s Aid and Children 1st argue that, at stage 2 or 3, we can ensure that the law recognises the damaging impact that domestic abuse can have on children. I appreciate the cabinet secretary’s response to Kezia Dugdale’s point this afternoon and his suggestion that the bill is not the appropriate vehicle for that, but I think that the issue will be tested at stage 2.

We need to appreciate the link between domestic abuse and the impact on any children the victims may have, especially but not exclusively younger children. It clearly has a significant impact on children if they witness physical abuse. If we consider the impact of controlling behaviour, where a mother’s movements are restricted and her finances and independence are constrained, we must not ignore the impact on her child, who will also suffer from those restrictions. As Scottish Women’s Aid highlighted in its briefing for today’s debate, women’s and children’s experiences of domestic abuse are “interwoven and inseparable”.

We must also consider the impact of domestic abuse when it comes to decisions about future contact. To inflict domestic abuse on another person is a choice. It is vital that that choice is strongly considered in any court decision to award or refuse contact to a parent who is guilty of abusing their partner or ex-partner. We must move away from the current situation in which evidence of domestic abuse does not play a significant part in contact decisions.

The move to insist that courts always consider the use of an NHO is welcome. I also look forward to the Scottish Government’s response on the use of emergency banning orders.

There was some evidence to the committee that incidents could be engineered or provoked to prevent child contact and that there might be a malicious element to that. However, there was very little substantive evidence about the extent of that. However, there were descriptions of contact orders being used to continue psychological abuse. I recognise that the Public Petitions Committee has recently discussed that issue and that the Government is reviewing relevant legislation. Although that issue is outwith the scope of this bill, it is important that the bill is consistent with other pieces of legislation and the on-going review.

Scrutiny of the bill’s detail will be important. We all want to see an effective bill, but context is also important, so our commitment is to roll out domestic abuse courts nationally. The domestic abuse court model works. It ensures that victims feel safe in coming forward and confident that their case will be taken seriously; it also helps in delivering convictions.

Sadly, in recent years, we have seen cases involving domestic abuse in which it was difficult to understand the judgment reached. Domestic abuse courts would ensure consistency and expertise. We should encourage models that can build specialism in this area.

The bill affords us an opportunity to put into statute a commitment to such a model. By doing so, we would not only show commitment to victims that we understand the fragile and complex nature of their cases but address some of the concerns that we have heard about the scope and the definition of the law.

Training for the judiciary is vital. I know that it is offered, but a degree of compulsion would be greatly beneficial.

Ultimately, we must have confidence that the bill and the subsequent law are clear and easily understood not just by lawyers and the judiciary but by those at risk of domestic abuse. The concerns that were expressed to the Justice Committee about the clarity of the new offence must continue to be addressed. Although there is much support for the bill, we should recognise that it will be tested and we must all be confident that it can achieve its objectives.

As the bill progresses, the Scottish Government must continue to work to put forward the case that the law is robust and clear in its objectives and that the new offence will deliver justice for victims.

Although stage 2 will test the bill, I have a level of confidence in the legislation in that sections 1 and 2 provide a series of thresholds and safeguards. Psychological damage cannot be trivialised. It must be, by its definition, serious or substantial. The bill must challenge, not normalise, actions that demean, humiliate, harm and control partners.

The bill can be only the latest stage in tackling domestic abuse. As the cabinet secretary said in his opening statement, the extent of the abuse is concerning. We must ensure that there is sufficient funding for advocacy services, refuge accommodation, counselling and one-to-one support, but many of those services are experiencing the strain of funding pressures, particularly at the local authority level. We know that there can be a postcode lottery when it comes to receiving support, especially in rural areas, so we must work to address that.

We will be fully supportive of the general principles of the bill in tonight’s vote, and we look forward to strengthening the bill as it progresses its way through Parliament.

15:47  

It is a privilege to speak in this debate on the Domestic Abuse (Scotland) Bill, because it is a vital piece of legislation to come before Parliament.

The bill makes domestic abuse a specific offence and creates a new offence of

“Engaging ... in a course of abusive behaviour”

towards a partner or ex-partner. It recognises, for the first time, the patterns of abusive behaviour and the truly traumatic and lasting impact that that has on the victims of abuse.

The Justice Committee heard a considerable amount of powerful evidence on the bill. Today, I will focus my contribution on non-harassment orders. A non-harassment order is a court order that can be used against a partner, ex-partner or any third party behaving in a way that frightens or causes distress. Currently, it is up to the prosecution to request a non-harassment order, but the prosecution is under no obligation to engage with the victim on whether an application should be made.

Under the current system, only a small percentage of successfully prosecuted cases result in non-harassment orders being issued. Research that was done in one region found that there were convictions in 502 out of 644 cases with a domestic abuse aggravator, yet only 33 non-harassment orders were issued—that is, in only 6 per cent of successfully prosecuted cases. Under changes that the bill proposes, consideration of non-harassment orders would be mandatory in such cases.

Non-harassment orders are particularly important for two reasons. First, as was mentioned repeatedly in the evidence submitted by the Crown Office and Procurator Fiscal Service, Zero Tolerance and others, there is a significantly high risk of reoffending. Zero Tolerance cited evidence of that risk being a

“near certainty in domestic violence cases.”

The second reason is the high financial cost of pursuing a non-harassment order through the civil courts. We read about the experiences of one survivor of domestic abuse in written evidence. She wrote:

“On the day of sentencing I did not know if my abuser, who was my husband would be given a Non Harassment Order. He was not. In effect the law would allow him to leave court, get in his car and drive straight back to the marital home where I was still living. Having had the benefit of 17 months of police bail conditions while he was ‘innocent’, the law waits until he is actually convicted of a violent crime, then lifts the protection I had. It just doesn’t make sense.”

She went on to highlight what that means financially for those who are then forced to try and pursue a non-harassment order through the civil courts:

“A civil interdict is a very expensive route and I would argue beyond the reach of most victims ... When considering this I rang a solicitor and was quoted £2,000. When I expressed my shock and asked what if I can’t afford it, he replied that some women just wait to be assaulted again and use bail conditions!”

The costs, which can spiral to as high as £10,000 if the interdict is defended, can be considered as acting in effect as a barrier to justice.

The evidence went on to say:

“I can honestly say I would rather be assaulted again than go through the system as it stands”.

What frustrates and hurts me about that statement is that we heard exactly the same from another victim of domestic abuse when the Justice Committee took evidence as part of our inquiry into the Crown Office and Procurator Fiscal Service. We simply cannot have a situation that makes people who have suffered such horrendous abuse prefer to suffer that abuse than go through the justice system.

Another important element that we touched on during our evidence sessions is the potential for introducing emergency barring orders—an immediate action that could be taken that would, essentially, ban perpetrators of abuse from the home of the victim for as long as was considered necessary. Unfortunately, we felt as a committee that we had not taken enough evidence on that to make a recommendation, but I am glad that we will take more evidence on it at stage 2.

The bill that we are discussing today is such an important piece of legislation. It has the capacity to make a huge difference to those who have suffered physical and psychological abuse, as well as sending out a message loud and clear that the insidious crime of domestic abuse will not be tolerated in our society and in our country.

Before I call Maurice Corry, I remind everybody that speeches should be of four minutes but there is a reasonable time in hand for members to take interventions, for which they will get the time back.

15:51  

I am glad to have the opportunity to take part in this very important debate on the Domestic Abuse (Scotland) Bill. I, too, acknowledge and thank the organisations and individuals who gave so eagerly and well the evidence that they put before the Justice Committee, sometimes in awfully difficult circumstances.

Domestic abuse is an intolerable, evil act that happens too often in our society. It harms those who are meant to be closest to us and to whom we look for support. It is totally unacceptable whatever form it comes in, but the law as it stands does not properly take into account every aspect of domestic abuse.

On page 12, the Justice Committee’s stage 1 report on the bill references the submission from Anne Marie Hicks of the Crown Office and Procurator Fiscal Service, who told that committee that the current law has prevented

“‘the bigger picture’ behind an abusive relationship being put before the court.”

The need to include psychological as well as physical abuse was clearly highlighted by Sacro in its submission to the committee. It is correct when it highlights that

“Psychological abuse can be just as effective as a method of control as physical abuse”.

The need for changes has also been made clear to the Justice Committee from a large number of varied and respected external sources including organisations that work with victims of domestic abuse, social workers, academics, lawyers, the police service and the Crown Office and Procurator Fiscal Service.

That is not to say that there are no issues with the bill, however. For example, Clare Connelly of the Faculty of Advocates noted concerns that the offences as set out in the bill do not sufficiently contextualise the conduct to be made criminal. My colleague Liam Kerr spoke about that. Additionally, Clare Connelly noted that it would be appropriate for a publicity campaign that focuses on addressing coercive control to be run alongside the implementation of the provisions in the bill. I agree with her conclusion that that overall approach would be more effective.

I will be interested to hear what thought the Scottish Government has given to the possibility of a publicity campaign to highlight the issue of coercive control as it relates to domestic abuse. Research bears out that it is a problem area. It shows that many people are likely to think that forms of coercive, controlling behaviour are more acceptable in a relationship than physical abuse. We welcome the fact that the vast majority of people know that physical domestic abuse is wrong, but we need to get to the same place on psychological domestic abuse.

15:55  

I agree with Maurice Corry about training, but what we really need is training for cultural change. For many years, domestic violence—I do not like that title, I have always called it just violence—was accepted, until we had cultural change through laws and advertising. I absolutely agree that training is important, but we need a cultural change in society to ensure that not just physical domestic abuse but psychological abuse is seen as unacceptable.

Domestic abuse is happening all around us all the time. People might not recognise it now, but I hope that they will recognise it once the bill has bedded in. Like members who have already spoken and many organisations and agencies, I welcome the bill. Scottish Women’s Aid said that the bill will

“bridge the gap in addressing controlling behaviours not covered by existing offences and crimes, particularly those that cannot be dealt with via common assault, threatening and abusive behaviour, and stalking ... Victim survivors have been telling us for 40 years that the harm from emotional and psychological abuse is the most traumatic.”

Women’s Aid is absolutely correct.

I am so pleased that the bill is going through, and I welcome the Justice Committee’s work on it—the committee members have been dedicated on the issue. As the cabinet secretary said, domestic abuse is not only physical abuse. Controlling, intimidating and threatening behaviour is all psychological abuse. It can start with a drip, drip effect—for example, money is withheld, so victims have no money to go out, buy clothes or see their friends and family. Victims are told what to wear and what not to wear, and they are told so many times that they are stupid and worthless that, unfortunately, they begin to believe it. That is the psychological drip, drip effect that Women’s Aid has been aware of for more than 40 years.

Like members of the Justice Committee, I thank most sincerely the people who gave evidence. I served on that committee for various bills and I know how traumatic giving evidence is.

I very much welcome the fact that the bill recognises that third parties—in most instances, that will be a child or a young person—can be used by a perpetrator. It has not been recognised before that a child is normally there. The child or young person can be used by a perpetrator to push the abuse further, and I thank the Government for taking on board the evidence about that. Most organisations and agencies have welcomed the bill’s approach; witnesses from organisations that work with children and young people told the committee that the inclusion of the aggravator shows that the Scottish Government listened and responded to the concerns that they raised during the pre-legislative consultation, after the aggravator was not included in the initial consultation.

The CEDAR—children experiencing domestic abuse recovery—network is a group that Glasgow Women’s Aid runs in my area to support mothers and children. It is a five-year project to deliver specialist support to women and children in the centre and east end of Glasgow. It offers support by addressing the behavioural, emotional and social difficulties that children and young people can experience because of domestic abuse. We must remember that children are affected by physical abuse and psychological abuse, and I welcome that aspect of the bill.

I have some time in hand, so I can give members a little leeway—30 seconds. I know that that does not sound like much but, as nobody is intervening, I have to use up the time. I do not often say that.

16:00  

I would be delighted to assist you in that effort, Presiding Officer. Thank you for the opportunity to speak.

The bill is about improving the justice system and how it serves the victims and punishes the perpetrators of domestic abuse. What the bill cannot do is eradicate domestic abuse. I remind members that abuse is about the exercise of power—as long as women are unequal in society, domestic abuse will persist. The bill could be perfect and domestic abuse would still persist, which is why we must redouble our efforts for the wider goal of achieving gender equality in society.

On that point, I love Paisley, but while back benchers in yesterday’s debate on Paisley’s bid to be city of culture were given six minutes for speeches, today I have four minutes to talk about a bill in a stage 1 debate. I cannot help but ask whether that is a product of having a Parliamentary Bureau that is composed entirely of men.

I very much welcome the bill and the way in which it is the result of consultation on various aspects of the issue. I welcome, too, the contributions from Justice Committee members. As Claire Baker said, we whole-heartedly support the bill’s principles. Like her, I will focus on what is missing from the bill and return to the need for a parallel offence of domestic abuse against children to be included at a later stage. I encourage the cabinet secretary to look at the evidence from Scottish Women’s Aid about the requirement for that. Equally, it is important to consider how good emergency banning orders would be, because the evidence has told us how ineffective exclusion orders are in the civil system.

I am a cynical soul these days, for a number of reasons, so I would like to consider how the bill’s principles might operate in practice. There is a history in the Parliament of doing brave things and of producing grand, world-leading legislation but then not fulfilling that legislation’s promise when it comes to delivering in practice. Just yesterday, at question time on the theme of education and skills, I talked about how proud I was of the Children and Young People (Scotland) Act 2014 and its provision for continuing care for looked-after young people, yet I exposed the fact that 99 per cent of the young people who should have access to such care currently do not have it.

I am sure that Parliament would be united in its hope that what we are doing with the Domestic Abuse (Scotland) Bill will be realised in practice. To do that, we need to consider four things: education and training, resources, publicity and the relationship that the bill will have with the rest of the justice system.

On education and training, as a Conservative colleague said, we have to ensure that training on the principles behind the bill is provided to staff who will have any contact with the bill’s provisions.

My colleague Claire Baker discussed resourcing. We know that cuts to refuge services are a considerable issue in constituencies across the country, as are cuts to community policing and pressures on housing. I have talked in the chamber before about meeting a woman who was the victim of domestic abuse who was stuck in a refuge for 18 months because the housing list was so long. She wanted to move on from that experience, but she could not.

We will have to do a good job of advertising the benefits of the bill to the wider public, just as the Government has done on the issue of revenge porn; I commend the Government for the publicity campaign that has gone along with that new offence.

Ultimately, we have to look at the relationship between the bill and the rest of the justice system. Some colleagues have referred to the relationship between the bill and contact orders when it comes to families with children, where that is a necessary issue.

One thing that we have perhaps talked less about today is criminal procedure. I very much welcome the sections of the bill that address that. I cannot help but think about what the bill would have meant for constituents I have met during my time as a member of the Parliament. I think of one particular woman who came to my surgery having experienced domestic abuse. The bill would have helped her but, to her mind, it will not go far enough.

I will give members some examples of that woman’s experiences. She came to talk to me about what life was like for her and her children, having been subjected to an abusive partner. Her children had to give evidence from a remote site, but the Edinburgh remote site was closed, so they had to travel to Livingston to do that. That caused great discomfort for the family. The children were not told enough about what it would be like to give video evidence in court. They were not told that they would be streamed live not just to the judge but to the whole courtroom, and they were alarmed to hear about that after the event.

The trial date of the court case was moved on four occasions because the accused tried deliberately to prolong matters. That in itself is a form of abuse. The accused faced 30 charges and was eventually convicted on 10 counts, with three “not proven” verdicts, but he was released for background checks prior to sentencing. He absconded while he was on bail, but when he was caught, he was bailed again. The bill will not address that issue of criminal procedure, which I encourage the justice secretary to look at again.

16:06  

Today is a historic day, because the Domestic Abuse (Scotland) Bill will, for the first time, introduce provisions on psychological abuse into the repugnant crime of domestic abuse. The bill has two main purposes: to create a new offence of engaging in a course of abusive conduct against a partner or ex-partner; and to amend other procedural and evidential aspects of criminal law in relation to domestic abuse. It recognises the damage that psychological abuse can do and makes it a crime in its own right. It addresses a gap in the criminal law by allowing for domestic abuse convictions based on a course of conduct that includes psychological abuse, rather than on individual incidents.

We all know that psychological and emotional abuse is just as painful as physical abuse. We might not see the bruises, but controlling and coercive behaviour eats away at the victim’s soul and self-esteem each and every day. The Justice Committee heard heartbreaking evidence, and I thank our witnesses for their immense bravery in telling us their stories so that others will not suffer in the way that they did.

Domestic violence—physical and psychological—exists in all sections of our communities and at all levels of society. As we have heard, mental and emotional abuse includes threats, criticism of someone’s appearance and intellect, name calling, and controlling what someone does, their access to money, where they go, how they dress and who they speak to, among many other degrading control mechanisms. The cowardly abuser knows no bounds. They will threaten someone’s children and isolate them from friends and family—in effect, they will try to make them a non-person. It is all about control—control by fear.

The bill aims to tackle all forms of that vile crime. As we have heard, it has been welcomed by a wide variety of organisations, including Scottish Women’s Aid, the Law Society of Scotland, Children 1st and the NSPCC, to name but a few.

Children are the forgotten victims of domestic violence. The ways in which they can be harmed by domestic abuse extend further than simply witnessing abuse. The trauma is long lasting and far reaching. I am therefore delighted that the bill provides for a statutory aggravator for instances of partner abuse in which third parties—usually children—are involved. That aggravator was not part of the Scottish Government’s initial consultation on the bill but, as we listened to stakeholders such as children’s charities and women’s groups, it became clear that children needed to be recognised as major victims of such crime.

I have sympathy with the view among children’s organisations that abuse of children in domestic violence cases should be recognised in its own right, but the Government believes that the bill strikes the right balance and that major reform of the criminal law on the abuse of children is best considered separately. That law is under review, and I sincerely hope that that review will reflect the urgent need to recognise the devastating effect that domestic violence can have on children.

Another welcome measure in the bill is the requirement for courts to consider whether to impose non-harassment orders to protect victims. Scottish Women’s Aid believes that it is critical for NHOs to cover children, too, and that courts should be more willing to consider refusing contact for abusive parents. I agree, and I am pleased that the cabinet secretary is considering that. I am also pleased that emergency barring orders are being considered and that the cabinet secretary will enter dialogue with third sector organisations to consider that measure at stage 2.

There is not enough time to do justice to all aspects of this important bill—I agree with Kezia Dugdale that time is far too short—but I hope that, between members around the chamber, we have covered most of the salient points. The bill aims to expose the inadequate bullies who perpetrate controlling and coercive behaviour and to send a message to them that such behaviour will not be tolerated. For that reason, I am proud to recommend the general principles of the bill to the chamber.

As I said, there is some time in hand, so members can say a little more.

16:10  

A number of speakers have talked about filling a gap. Indeed, Scottish Women’s Aid mentioned that in its briefing. I thank it and other organisations for their briefings.

The cabinet secretary used the phrase “the next important step”. The bill is an important step, but there is further to go. That has been alluded to in members’ comments about legislating in respect of children.

The bill is about a course of conduct that includes psychological abuse. That is laid out in section 2. It is important that the list is non-exhaustive because it remains open for the courts to decide on the matter.

I align myself with some of the comments from, I think, Claire Baker, who talked about the important role that domestic abuse courts can play. I have long been an advocate of rolling out that approach. People need to have a clear understanding that it is about the timetabling of events rather than new buildings. It is about scheduling and people working together, which is surely what we want in relation to domestic abuse.

I will read one part of the Scottish Women’s Aid briefing that I thought was particularly significant:

“The new law offers a policy sea change by focusing our criminal justice response on the actions of the perpetrator rather than the circumstances of the victim. By doing so, it will enable better understandings of domestic abuse and its impact on women, children, and young people in our communities, institutions, and country.”

To inform our inquiry into the bill, we heard testimony, as a number of members have mentioned. Indeed, in our report, we say that we

“received compelling and persuasive evidence that psychological abuse within a relationship or by an ex-partner can cause immense and enduring trauma and harm.”

Elsewhere in the report, that evidence is referred to as

“powerful and moving private testimony”.

I express my great respect for those women.

Domestic abuse is primarily, although not exclusively, gender-based violence. It is important to say that confidentiality must be respected but, in some respects, it is disappointing because those women can do far more to explain the need for the bill and more measures than any politician could. Great thanks are due to them. They showed courage for a number of reasons. They are from a wide range of backgrounds and geographies, and many of them had to relocate. That affected the relationship not only with the partner but with the wider family.

Laws are intended to reflect society’s views on a given issue. As a number of members have said, there has been a welcome change in relation to domestic abuse, but we have a way to go.

I will touch on how the police will respond to the bill. Detective Chief Superintendent Boal said that there was nothing new in it. That is correct. The change that has taken place in how the police respond to historical issues of violence will not be reflected in their initial reaction when they attend the scene of an allegation. The subsequent inquiry will unearth it. Police Scotland has done some tremendous work on serial abusers whose violence has been visited on not only one female victim or one household but a series of them, sometimes over decades. Some of the salutary sentences rightly reflect the damage that those abusers have done to a number of lives. Therefore, I have every confidence that the police, working with the prosecutors, can properly address the matter. Judgments will always have to be made, but that is the case with every piece of legislation. We need not fear anything about that.

Another term that is used in the report is “hard to reach groups”. The survivors from whom we heard and the people whom the bill will assist, should it be passed—I sincerely hope that it will be—have been hard to reach. They have felt abandoned. People have talked about the effect that the criminal justice system has on victims. It should support and help them, not victimise them further.

I appreciate that time is limited, but it is important to quote some of the evidence from Children 1st, which other members also covered. It talks about the need for a

“mandatory duty on the court to consider whether to impose a non-harassment order that includes a child in all cases where the statutory aggravation in relation to a child is applied.”

That is important. If we are going to recognise that effect in the aggravation, it should be picked up in the order. That is important for another reason, too. It is a well-documented fact that child contact is an occasion when psychological abuse continues. I hope that that matter will be looked at as we go forward.

Scottish Women’s Aid commented that we should

“ensure that abusive behaviour dealt with by the criminal courts is regarded as prima facie evidence of unsuitability for contact with a child”.

I gave you an extra minute, Mr Finnie, so you should conclude now, please.

Many thanks. I lend the bill my full support.

16:15  

As others have said, psychological abuse within a relationship or by an ex-partner can cause immense and enduring trauma and harm. As a member of the Justice Committee, I had that underlined to me most powerfully and movingly by the survivors who we met and the many remarkable agencies that support survivors across Scotland.

It is clear that domestic abuse is a multidimensional scourge on our society and on us all, which affects a range of relationships but particularly unequal relationships between men and women. It affects people across class, wealth, ethnicity and age. That is why I strongly support the principles of the bill, which will create a new offence of engaging in an abusive course of conduct, because that is the lived reality of such abuse on the ground and the lived experience of victims as we speak. The bill takes account of the context and impact of domestic abuse.

The proposed offence addresses a gap in the existing law by recognising—that is an important word—that domestic abuse might not only damage or violate a victim’s physical integrity but undermine their character and restrict their autonomy, freedom and ability to live their life in the manner that they choose.

I said that the word “recognising” is important. That is because the bill, if passed, will not only empower our courts to deal more effectively with this scourge on our society but help to clarify that such coercive, controlling behaviour is unacceptable. Some of the survivors from whom we heard said movingly that, at the beginning, they were not quite clear whether they were being abused. Passing the bill will provide absolute clarity across society, particularly to victims who are suffering. They will be able to tell more easily whether they are being abused and the ability of the criminal law to take judicial action on their behalf, in the interests of justice, will be clear, too.

I support the gendered approach taken by the bill, because that is the right approach. As other members have said, the bill is set within a wider context of gender equality and addressing violence against women. That is why we have to get the bill right and make sure that the criminal justice system is ready and resourced appropriately to use the new powers and abilities that the bill will give it in order to ensure greater justice.

Others have mentioned a publicity campaign. They were absolutely right to say that it is important that there is a Government-led publicity campaign and that there is training to make sure that people in the criminal justice system and the third sector can support and give effect to the bill’s intention. That work to raise awareness has already started with the introduction of the bill and the stage 1 process.

I draw to the Parliament’s attention Scottish Women’s Aid’s one thousand words photo project. It is putting forward 15 new images of what domestic abuse looks like in order to get away from the perception that domestic abuse is only about physical harm and to illuminate the fact that it is deeper than that—it is multifaceted, and that whole range of abuse is what we should tackle. The bill will make a remarkable difference on that journey and I fully support it.

16:20  

I will start by confirming that the Scottish Liberal Democrats unequivocally support this bill to tackle controlling and coercive domestic abuse, although I think that Kezia Dugdale was absolutely right to warn that there are limits to what any bill, however good, can achieve on its own.

I thank all those who gave written and oral evidence to the committee and, like others, I pay particular tribute to the survivors of domestic abuse we heard from, whose often harrowing testimony vividly brought home to us all how psychological abuse can be every bit as damaging, as traumatising and as long-lasting to a victim as physical abuse.

For all the strides that have been made since the establishment of the Parliament in terms of heightened public awareness, political priority and changes in legislation, the prosecution of psychological abuse has too often proved difficult. That has made it difficult to reinforce the messages about how unacceptable controlling and coercive behaviour is and has in turn made it difficult to persuade victims to come forward. Ben Macpherson was absolutely right that victims are looking for more clarity and certainty that the abuse that they have suffered will be recognised and action taken against the perpetrators.

As I say, the Scottish Liberal Democrats strongly support the principles of the bill and welcome the contribution that it can make to closing the gap in our criminal law. I look forward to working with committee colleagues, ministers and stakeholders to improve and strengthen the bill in a number of areas.

A range of questions were raised with the committee during stage 1. Initially, there was a debate about whether the scope of the bill should be broadened to encompass wider family relationships, including elder abuse. Although that appears to be the approach adopted in recent legislation south of the border, from the evidence that we heard, I am certainly persuaded that the nature of abuse between partners and ex-partners demands a laser-like focus and response.

That is not to say that there is not a recognition of the impact that domestic abuse can have on children in a relationship or household. Although the bill acknowledges this and establishes a specific “aggravation”, I think that Scottish Women’s Aid and others are right in arguing that the effect is not just on a child who sees, hears or is present in the house during a particular incident, as a child’s experience is invariably interwoven with that of their abused parent. That needs to be better reflected in the bill.

More controversially, perhaps, we also considered whether the evidential bar for prosecuting coercive and controlling behaviour was set at an appropriate level. We heard concerns from legal experts, the Scottish Police Federation and others that the bill may risk criminalising behaviour that, although unpleasant, should not be considered a criminal offence.

Initially, I admit that I was persuaded by some of those concerns, but over the course of the evidence that we heard I became increasingly satisfied that the tests were sufficiently robust. The Government response to the committee’s report provided further help in clarifying that position.

It is absolutely right that courts should be required to consider non-harassment orders in any case of domestic abuse, but we can go further. Children 1st argues, as John Finnie reminded us, that

“in all cases where the statutory aggravation in relation to a child is applied,”

the court should be required to consider a non-harassment order covering the child or children. That seems to have merit and we will return to that at stage 2.

Similarly, emergency barring orders in more serious cases could, I think, play an important role, and I welcome the Government’s engagement with the third sector in developing proposals that the committee will consider and take evidence on at stage 2. More work is also needed, as others have said, on tying down the details of the resources needed to make this legislation, when implemented, as successful as possible.

There is a welcome acceptance by ministers of the critical importance that training and awareness raising can play, but perhaps insufficient clarity around the scale of what might be needed. It might be helpful if the cabinet secretary set out his thoughts in more detail when he winds up.

Finally, I note that Scottish Women’s Aid is highly critical of any suggestion from the committee that there might be diversions from prosecution. For my part, I accept that criticism, and although this will always be a matter for the Crown Office, I think that the more appropriate debate to be had is in relation to alternatives to custodial sentences in certain circumstances.

I am in no doubt at all that coercive and controlling behaviour can have a devastating and enduring impact on a victim by undermining their sense of self and hollowing them out, slowly but surely. At present, the criminal law in Scotland is inadequate to deal with such abhorrent and pernicious abuse. I am pleased that the bill can play an important part in righting that wrong and I will have great pleasure in supporting its general principles at decision time.

16:25  

I am pleased to be speaking in the debate and am immensely proud that the Justice Committee unanimously agreed to the principles of the bill. How often do we see five parties all agreeing about a bill? That says something about Scotland and the Parliament, and we should all be very proud.

During committee consideration, we heard evidence upon evidence that the bill is needed and that there is a gap in the law that means that victims are not protected from psychological abuse. That evidence came from Scottish Women’s Aid, Abused Men in Scotland, all the children’s charities, social work, the police, the Crown Office and Procurator Fiscal Service and victims themselves, to name but a few.

My experience as a social worker told me the same. In 12 years in a local office setting, I lost count of how many times I sat at a child protection conference, a children’s hearing, a multi-agency public protection arrangements meeting or some other forum and heard evidence of what was often a pervasive pattern of psychological and emotional abuse over long periods of time. The police, social and health services often had nowhere concrete to go.

The bill will be groundbreaking and will make a real difference to service intervention and, most importantly, to the lives of those suffering at the hands of abusive—mostly, but not exclusively—men.

I do not want to sound too sucky-uppy to the cabinet secretary but, because this issue was part of my work life for a long time and it means a lot to me, I will say that if the bill is passed, he can be very proud. In years to come, he will be able to think back to this as an absolutely outstanding achievement that will have positively impacted the lives of many and helped to change the culture in this country.

I will address some of the issues in the committee report. Much has already been said, so there is a risk of repeating things, but it is worth doing. A very small—and I stress that it is small—number of stakeholders expressed concerns that the bar of criminality is being set too low. I do not agree with that. The committee heard evidence from Anne Marie Hicks from the COPFS who did not think that that was the case. I welcome that, in its response to the committee’s report, the Government outlined the three thresholds that require to be met; I am sure that the cabinet secretary will highlight those.

During evidence gathering, the subject of children who are exposed to such behaviour generated a lot of discussion. I welcome the Government’s response in relation to the review of the Children (Scotland) Act 1995, including a review of child contact cases as they relate to domestic violence.

I also welcome that there will be consideration of amendments at stage 2 to allow non-harassment orders to protect children specifically. The Government is taking a positive step in meeting Scottish Women’s Aid to talk about emergency barring orders, and I encourage dialogue on that front with the children’s charities such as Children 1st. I met Chloe Riddell earlier today and we discussed that very issue.

I will follow up on a question that I asked the cabinet secretary when he made his recent statement. I believe that the introduction of such an offence and the subsequent publicity will lead to more convictions. From working in the field, I know that the Scottish Government has recently invested strongly in criminal justice, especially in addressing female offending. However, we need to ensure that funding is increased for programmes for male perpetrators—because it is particularly male perpetrators—of domestic violence. Programmes can work, but they need people who can specialise and do the intense work. It takes a lot of work to change people’s belief systems. The change programme and the Caledonian system are examples of such work.

I take the opportunity to encourage local authorities to use Government investment to create specific posts for people who work in the area and allow them to effect change. Some local authorities do this already, but I would like to see local authorities have specific teams to work on domestic abuse, as they do in other areas of criminal justice. That would be a step in the right direction.

I see that I have been speaking for just over four minutes, Presiding Officer, so you will be glad to know that I am finishing. I welcome the bill and commend it to the chamber.

16:29  

Close and intimate personal relationships are an integral part of our lives. Sharing life with a husband or wife, for example, learning more about each other and experiencing life together can give some of the most precious times in life. However, when relationships break down, whether momentarily, temporarily or permanently, such moments can be the worst that any of us face. Worse still is a situation in which two people have placed trust and love in each other, only for one of them to turn around and abuse that trust through physical or psychological maltreatment. Such abuse can take many forms and leave deep emotional wounds that last long after a physical bruise or scar may appear to have healed, and so complex can human relationships be that the victim may not initially realise what is happening.

It is that sort of complicated set of circumstances that we look at now as lawmakers. I am sure that we all agree that our purpose should be to target serious wrongdoings rather than what might be categorised as occasionally irrational behaviour. Human weaknesses can, of course, often cause disagreements to take place within a relationship. Andrew Tickell of Glasgow Caledonian University law school said in evidence—I quote—

“Even broadly healthy relationships are occasionally characterised by hurtful conduct, jealous behaviour, and distressing episodes.”

Calum Steele’s evidence has been referred to already—one part of it, anyway—but he said that his experience was that once the criminal justice system becomes involved, that involvement can itself become a source of regret and distress to individuals. So, the question is this: is the draft legislation that is before us sufficiently clear, or does it blur the line between a pattern of unacceptable, coercive and controlling behaviour on the one hand and irregular friction on the other? Does it overcriminalise?

The Glasgow Bar Association referred to a “wide scope of behaviours” that may be criminalised by the bill. Others, including the Law Society of Scotland, raised concerns about the bill having a low threshold to establish a course of behaviour. An example that has been referred to already is that of using “distress” as a measure of the impact of a person’s behaviour towards another. It is valid and important to ask, as others have, whether the bar is being set too low.

Does Gordon Lindhurst accept that we must take cognisance of the judgment of the individual who chooses to pick up the phone and say “I require the police’s assistance”? Matters will develop as a result of that, but it is their judgment.

Yes, of course. It is always the judgment of the individual whether to pick up the phone and call the police. I do not demur from that, at all.

Will the member take an intervention?

No.

We can contrast this Scottish bill’s classification of behaviour as being coercive or controlling even when it has happened on only two occasions with the definition in the Serious Crime Act 2015 for England and Wales. That 2015 act refers to someone who

“repeatedly or continuously engages in behaviour towards another person”.

Home Office guidance on the 2015 act makes it clear that courts should

“look for evidence of a pattern of behaviour established over a period of time rather than ... one or two isolated incidents which do not appear to establish a pattern.”

A serious concern arises on this point: law should be clear. Those of us who, like me, have been involved in prosecution of such cases under the current system understand that. Those who have been involved know that these are sensitive matters that need to be looked at very carefully. As Mr Tickell said,

“legislators should get the law correct in the first place rather than trusting the prosecutors to use the law as it was intended.”

I am sure that that is what we are all trying to do here and what we agree we should be doing.

Without demurring in any way from the principles of the bill, I say that I am not entirely satisfied that all the concerns that have been raised have been addressed. The important point is that we want the bill to work, but for it to work, we need to see that it will work in practice because it is watertight, and that it will have its agreed intended effect.

16:35  

The poet and domestic abuse survivor Christy Ann Martine wrote this:

“You can’t keep her in a cage,
clip her wings, tell her lies,
say that fragile birds
were never meant to fly.
Watch her live behind
a rusted door, latched tight,
her spirit slipping away
so you can keep her in sight.
Beautiful creatures
cannot be confined.
Her wings will grow,
she’ll find the sky.”

I will talk about that in a minute.

Around one in three women and a growing number of men become victims of abuse. We like to think that we find such behaviour completely and utterly appalling and disgusting, which we do, but some people are still too inclined to brush it under the carpet. However, we know that it is still happening—the evidence tells us that. We are better informed by statistics, but too many victims are still fearful of seeking redress. Perhaps some people—particularly, although not exclusively, the abusers—think, “Oh, well. You’ll get over the broken bones, the bruises and the smashed teeth and life’ll go on”, but we know from the committee’s evidence and evidence from other avenues that that is certainly not the case for many victims.

The question is whether we are doing enough. We need to wipe out home-based domestic violence and make it completely unacceptable. That is the culture change that my colleagues have spoken about. With the right tools in place, Scotland can become an exemplar and can really chip away at an old and outdated notion—the “It’s none of my business, pal” mentality.

That can be done through grass-roots community work. Many of the relevant organisations have been mentioned, and I would like to thank them for all the help and support that they have given me in the work that I do in co-convening, along with my colleague Claire Baker, the cross-party group on men’s violence against women and children. We have seen some improvements—in many cases, huge improvements—through the work of locally led groups, such as South Lanarkshire Women’s Aid and the Lanarkshire Rape Crisis Centre, which I have worked with, as well as the brilliant work of the STAMP—stamp out media patriarchy—project in schools.

The bill tackles one of my biggest concerns, which is coercive control, the victims of which are not aware that being isolated from friends or family, having their access to money and bank accounts restricted or having personal medical conditions revealed are domestic abuse. It needs to be a criminal offence. Such behaviour devastates human lives. Using gestures and eye contact to warn a person or control their behaviour can be undetectable to most of us, but devastating to the person who is the target of it.

The Justice Committee saw so much “compelling and persuasive evidence” of psychological abuse that it saw it as

“a real and pernicious issue, the effect of which can be every bit as harmful as any violent abuse.”

It is important to add that an increasing number of victims are young men and women in the lesbian, gay, bisexual, transgender and intersex community. Having a same-sex partner does not protect people from abuse. Members of that community find themselves being bullied, humiliated, laughed at or rejected through psychological and coercive behaviours and the physical violence that comes with them. We must be mindful that that is happening.

In its briefing, Scottish Women’s Aid welcomed the principles behind the bill and said:

“The new law offers a policy sea change by focusing our criminal justice response on the actions of the perpetrator rather than the circumstances of the victim. By doing so, it will enable better understandings of domestic abuse and its impact on women, children, and young people in our communities, institutions, and country.”

I agree. Our present law leaves a gap that the bill will, I hope, close. It will give better protection to victims who seek redress for acts that will be criminal in law. At the moment, if someone wants to make a case, they must do so either on the ground that their physical integrity has been attacked or the ground that threatening behaviour has caused them fear and alarm.

Fundamentally, the bill carefully defines the offence of engaging in an abusive course of conduct against a partner or ex-partner. The asks that some members have made notwithstanding, it will enhance the power of the police and improve protection for victims. Here is my ask: I ask the Scottish Government to strengthen the bill when it comes to the impact on children, on which I know Scottish Women’s Aid has some proposals. I would also welcome the Government confirming that the review of the Children (Scotland) Act 1995 will include consideration of that issue, and I reiterate Kezia Dugdale’s call for similar mindfulness.

I also ask the Scottish Government to be mindful in its review of short-term sentencing during the passage of the bill—I am sure that many organisations will tell the Government why they have concerns about that.

The bill presents an opportunity to break the lock of the cage that Christy Ann Martine described.

Please conclude.

Why would anyone stand in the way of the bill’s essential principles? I do not.

I did not want you to eat into the time for the closing speeches.

16:40  

From the outset, this Parliament set out on a journey to combat violence against women. It is good to see the bill progressing, and it is good that there is support for extending domestic abuse legislation beyond physical abuse to cover emotional and coercive control within a relationship.

However, that is not the end of the journey. There are many more issues that need further examination and legislation. I hope that some of them can be included in the bill at stage 2; those that cannot be included must be given priority. Our vision must be to create a country in which we have true equality and an end to violence against women.

We need to look at the legislation around children who are victims of domestic abuse, and we need to ensure that there is adequate resourcing of the police, social services and support services such as Scottish Women’s Aid, which does wonderful work. My colleague Claire Baker paid tribute to Scottish Women’s Aid, which has been in existence for more than 40 years and is still battling the scourge of domestic abuse.

We recognise the devastation that domestic abuse brings to women, but we need to understand that children of the relationship are damaged, too. That point was made by Claire Baker, Kezia Dugdale, Rona Mackay and many other members. The bill deals with situations in which a child is used as an aggravator to further the abuse of the adult victim, but it does not deal with the impact of domestic abuse on the child.

The impact of domestic abuse on a child can be long term and catastrophic. In its briefing for the debate, Children 1st said:

“An increasing body of robust international evidence recognises domestic abuse as one of ten types of traumatic adverse childhood experiences (ACEs) which can increase the likelihood of people developing chronic diseases, mental ill-health and a range of negative social and emotional impacts, such as being a victim of violence throughout their lifetime.”

That is the impact on children who are brought up in a relationship where there is domestic abuse. Until we recognise that and protect such children, we will be falling short in our duty of care to them. As Liam McArthur said, the child’s experience is totally interlinked with that of the abused parent.

A review of the Children (Scotland) Act 1995 will take time, and more children will suffer in the interim. There are things that we can do in the bill that will save many children from being harmed while the review is taking place.

I have seen many cases in which child access arrangements have been used to continue the abuse beyond the end of the relationship. That has a long-term impact on the child, in addition to the impact of the abuse itself. It is surely not acceptable that a mother should be forced by the court to send her child into a dangerous place.

Child access arrangements in situations of domestic abuse need to form part of the disposal. Scottish Women’s Aid, Children 1st and other expert stakeholders propose that a child should be provided with a non-harassment order in their own right. Such an approach would prevent a civil court from forcing a child to have contact with an abusing parent. Indeed, I think that an abusing parent should have no access to a child until they can prove that they have changed their behaviour. A parent who creates a situation that damages their child should surely relinquish all their parental rights. That is the case under child protection arrangements; it is just that we do not recognise the damage that witnessing abuse does to a child.

In his speech, Michael Matheson said that he will deal with the issue in new legislation. There are wider issues that can be dealt with in new legislation, but domestic abuse courts are expert in recognising what a children’s hearing or civil court might not recognise. There must be no gaps in child protection. I urge the cabinet secretary, as other members have done in the debate, to look again at the matter.

There is some opposition to the bill. As Liam Kerr pointed out, a minority of those who gave evidence expressed reservations about the wording and the practical effect of the new offence. Some legal experts and police officers have talked about the difficulty of legislating in the realm of human relationships, but that takes me back to the days when people referred to “domestics”. I find it sad that such views still resonate in some quarters today, and they indicate the need for additional training of police and prosecutors. After all, such abuse is easily recognisable to the trained eye, as Maurice Corry, Kezia Dugdale and Ben Macpherson have pointed out.

Please conclude.

I must apologise, Presiding Officer—I could go on for some time. However, let me finish by saying that we support the bill as a step in the right direction and hope that we can build on it at stage 2.

16:45  

I close on behalf of the Scottish Conservatives with a sense of sadness that this debate was ever necessary, but also with some hope that we in this Parliament are taking some meaningful steps in our efforts to tackle something that is all too prevalent in our society. The cabinet secretary and Margaret Mitchell opened the debate very eloquently by setting out the reason why we are discussing this issue and highlighting the importance of getting this right and ensuring that what is enshrined in law is enforceable and can protect the victims we are seeking to protect.

A victim once described to me the insidious nature of domestic abuse. It picks away at a person’s confidence, often in small ways at first, so that the person does not even realise that they are being drawn into an abusive relationship—until one day, they look in the mirror and it is not them looking back any more. Their confidence is supplanted by doubt and their freedom is enveloped by chains, because psychological manipulation is an evil and systematic poisoning of the soul. Our present law is not sufficiently expansive to enable what the COPFS has described as

“the effective prosecution of psychological abuse and controlling and coercive behaviour”

that

“may ... undermine a victim’s character, restricting a victim’s autonomy and freedom and their ability to live their life in the manner they choose.”

However, the bill bridges that gap, and I commend certain elements of its construction. First, I welcome the bifurcated test in section 1(2)(a), which will allow the court to take account of any particular circumstances or vulnerabilities of the victim that might be preyed upon, irrespective of whether the behaviour in question would be likely to cause harm in the view of the objective “reasonable person”.

I am also supportive of the inclusion of a recklessness test in determining mens rea in section 1(2)(b). That is appropriate—indeed, essential—because a perpetrator of domestic abuse can be devious and skilled in manipulation. They might present their conduct in a manner that, at least superficially, suggests that they did not intend to cause harm and therefore did not meet the requisite standard of mens rea. Importantly, the bill closes that particular back door, allowing effective policing of the specific characteristics of those who control or coerce victims.

I also support the statutory aggravation of the offence in section 4, which takes into account the harm caused to a child who is exposed to an abusive environment in which access to a child and interaction between the victim and their child are restricted. I whole-heartedly support the calls that were made by many members, including Sandra White, Kezia Dugdale and Claire Baker, that we ensure that the welfare of children who are caught up in domestic abuse is thoroughly explored as the bill goes through its various stages.

However, as my Conservative colleagues have highlighted, we have some significant reservations about the drafting of the bill. We are highlighting those reservations not because we do not want the bill to proceed through its stages or to be passed but because we think that it is vital to ensure that anything that we put into statute is enforceable.

Maurice Corry noted calls for a publicity campaign to be run in conjunction with the bill’s enactment, and, thereafter, for awareness raising of the issue of coercive control and its criminalisation. I add my support to such moves; indeed, Kezia Dugdale, too, echoed those calls. Ben Macpherson made the good point that the bill’s passage through Parliament will itself draw attention to domestic abuse issues and many pieces of good work in that respect are already being undertaken, but that does not mean that we cannot go further. One of the things that we should look at is the provision of early intervention and prevention services for young people displaying any signs of problematic behaviour in this context.

Gordon Lindhurst highlighted the concerns of academics and police officers that there is a substantial risk of lowering the threshold of criminality due to the ambiguity of the word “distress”. We must therefore proceed with caution, so as not to open the floodgates to vexatious litigation, because that in turn could undermine the cases of victims who really need support and, eventually, a prosecution.

I fully endorse Liam Kerr’s comments and our advocacy of trialling the one family, one judge approach that has been adopted in various countries. That could be a vital ancillary means of streamlining the system and ensuring that victims are not forced to relive the experience time and again.

We have heard many contributions about the importance of the bill, not one of which was invalid, but I would like to pick up on a couple that really struck me. Mairi Gougeon made a powerful contribution on non-harassment orders. She pointed out that only 6 per cent of convicted cases include a non-harassment order and that somebody who is convicted can walk out of court and go back to the victim’s home. That highlights the issues that we face as we take the bill through Parliament. We must ensure that the legislation that we put in place effectively gives the protection that women crave.

I do not take away from any of the points that have been made in any shape or form but, as we close the debate, it is important to say that, although the principles that underpin the bill are sound, we now need to make sure of the details. As Fulton MacGregor highlighted, we have five parties working together on the issue and we are in agreement, but we need to nail down the details as the bill goes through its various stages. I join Fulton MacGregor in saying that we should now work together to amend and improve the substantive elements of the bill. We must address the concerns that have been outlined to ensure that the right balance is struck between the protection of victims and due process in our courts.

There will be differences of opinion and further debate and discussion, but there should be no doubt that the Scottish Conservatives and, I hope, the whole Parliament will not waver in our drive to effectively legislate against and prosecute domestic abuse in all its forms. We are working to eradicate the scourge of domestic abuse. I agree with Kezia Dugdale that we will probably never eradicate it, but there is a process, and the bill represents another step forward in that process, so we should take it forward whole-heartedly.

16:52  

I am grateful to members from across the chamber for their comments and for the cross-party support for the general principles of the bill. As I said in my opening remarks, it is unique in that we are seeking to criminalise a course of behaviour, which is novel in Scottish law and to an extent in law in the UK as a whole, as it differs from the approach that has been taken in England and Wales.

I will return to that, but I first turn to whether we have set the bar in the bill at the right level, because that is pretty fundamental to the bill’s effectiveness. I am concerned that some who believe that the bar has been set too low are overlooking the protections that are built into the bill to ensure that we strike the right balance. I therefore want to be clear about how the offence will work and about the three conditions that must be met for the offence to be brought into play.

The first aspect is that the accused must engage in

“a course of behaviour which is abusive of”

their partner or ex-partner. Further, it must be the case that

“a reasonable person would consider the course of behaviour to be likely to cause”

the partner or ex-partner

“to suffer physical or psychological harm”,

and that the accused intends the course of behaviour to cause their partner or ex-partner to suffer such harm, or they are

“reckless as to whether the course of behaviour causes”

such harm. It is important to remember that the test of whether the accused’s behaviour is likely to cause the victim harm applies to the whole abusive course of behaviour and not to whether a single instance of behaviour caused such harm.

Several members, including Gordon Lindhurst, Liam McArthur and Michelle Ballantyne, referred to the threshold of distress in the definition of psychological harm. We believe that distress is the appropriate level. How will courts decide how to interpret distress and how will they take it into account? In reality, courts will turn to the dictionary definition of distress.

“Distress” is not synonymous with mere upset or annoyance. The “Concise Oxford English Dictionary” defines “distress” as meaning “extreme anxiety or suffering”. That is exactly why the Crown Office and Scottish Women’s Aid have said that that is where the threshold should be set. They see extreme anxiety or suffering as being key to bringing the offence into effect. With those three criteria and the threshold of distress, we have arrived at our position, which I believe to be the right threshold.

I turn to several other issues that members such as Kezia Dugdale, Claire Baker and Mairi Gougeon raised in relation to the protection of children and non-harassment orders. The committee suggested that we should extend the provision of NHOs to children and I can confirm that we will lodge amendments to do that. That extension of NHOs will sit alongside the mandatory provision that courts will have at the time of sentencing to take into account such orders.

Members raised the issue of the interaction between our criminal and civil law—Kezia Dugdale in particular raised that—and ensuring that the way in which our justice system operates is comprehensive and holistic. When children are involved, the centre of our system should be the fact that the child’s interests have paramount importance.

As Mark McDonald mentioned in March, through the review of the Children (Scotland) Act 1995, we will consider providing for a specific measure on domestic abuse in relation to children and a specific offence within that. The review process will allow those with an interest to help us to shape that effectively to reflect a modern understanding of how domestic abuse impacts on children and their welfare.

The cabinet secretary’s remarks on that point are much welcomed. However, does he recognise that, as much as the procedure might work well, the reality is that we will need appropriate resources to ensure that it works for families?

I fully recognise that. Over the past three years, the justice sector has been provided with an extra £20 million to support speeding up the process so that domestic abuse cases are dealt with much more quickly in court. We have made significant progress on calling cases at an earlier stage. I recognise the need to ensure that there is sufficient resource.

Kezia Dugdale referred—as did others—to the child contact process being used and manipulated by individuals to inflict greater harm on someone who has experienced domestic abuse. As part of our modernisation of family law, we have given an undertaking to consider mechanisms and processes that can be put in place to prevent that from taking place and to prevent abuse of the system.

A number of members have raised the possibility of running a publicity campaign about the legislation. I assure members that we will do exactly that. We will build in a publicity campaign to ensure that there is greater awareness about domestic abuse and the new provisions in the bill.

John Finnie was on the money when he talked about how the police will respond to the new legislation. Their response to domestic violence has changed dramatically not just in the past 20 or 30 years but in the past 10 years. We now have cases in court where one complaint from one individual has resulted in three or four complaints from other individuals, because of how the police trace back the issues. I am confident that, with the right support and the right training, Police Scotland and our officers, with their professionalism, will see the implementation of the legislation through.

Kezia Dugdale said that domestic abuse will continue to blight our society while we continue to have inequality in our society. The reality is that domestic abuse is a product of social and gender inequality in our society. The justice system can do only so much to tackle that. I am not deluded to the point that I think that the bill will end domestic abuse. However, it will support women who have had to suffer the misery of coercive and controlling behaviour over many years—in some cases, over decades—and show that the Parliament recognises their plight and that we are determined to do everything possible to bring the perpetrators of such misery in too many households to account through our criminal justice system. This bill will support and assist us in achieving that.