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Chamber and committees

Meeting date: Thursday, January 28, 2021

Meeting of the Parliament (Hybrid) 28 January 2021

Agenda: First Minister’s Question Time, Budget 2021-22, Point of Order, Domestic Abuse (Protection) (Scotland) Bill: Stage 1, Domestic Abuse (Protection) (Scotland) Bill: Financial Resolution, Business Motion, Parliamentary Bureau Motion, Motion Without Notice, Decision Time


Contents


Domestic Abuse (Protection) (Scotland) Bill: Stage 1

The Deputy Presiding Officer (Linda Fabiani)

We shall now carry on with that very important business, which is a debate on motion S5M-23983, in the name of Humza Yousaf, on the Domestic Abuse (Protection) (Scotland) Bill at stage 1.

15:30  

The Cabinet Secretary for Justice (Humza Yousaf)

I begin by apologising to you, Presiding Officer, and to the entire chamber. I was getting ready to log on before the end of Ms Forbes’s statement, and I can only cite a technical malfunction. I had been on the phone to our information technology team earlier in the day to resolve the issue, and I thought that it had been resolved, but clearly it had not, so forgive me. I apologise to you, Presiding Officer, and to all members who are in the chamber or present remotely.

I am pleased to open the stage 1 debate on the Domestic Abuse (Protection) (Scotland) Bill. The bill is an important additional piece of the Scottish Government’s overall approach to improving the way in which Scotland deals with the scourge of domestic abuse. Much progress has been made in recent years through, for example, the new offence of domestic abuse and increased support for those who experience domestic abuse, all delivered through the prism of the equally safe strategy. However, there is always more to do, and the bill is part of those necessary further steps.

I intend to respond to a number of issues that were raised during the scrutiny process. First, I thank members of the Justice Committee, the clerking team and all those who gave evidence on the bill. That evidence helped to shape the comprehensive and helpful stage 1 report that was produced swiftly following completion of the oral evidence sessions.

Before I address the specific points that were raised in the report, it is important that I set out briefly what the bill actually does. Part 1 of the bill creates a new scheme of domestic abuse protection notices and domestic abuse protection orders. The notices and orders will be used to protect people who are at risk from abusive behaviour by a partner or an ex-partner where there is an immediate risk of abuse.

The bill empowers senior police officers to be able to make a very short-term domestic abuse protection notice, which can remove a suspected perpetrator of domestic abuse from the home of the person who is at risk. It can also prohibit the suspected perpetrator from approaching or contacting the person at risk, and it can apply a limited number of other very specific conditions. The notices can be made prior to consideration by a court, and they are intended to allow for protection to be put in place immediately, where police consider that necessary.

The bill also contains the power for a court to make a domestic abuse protection order, which can have effect for up to two months initially and is capable of being extended for up to three months in total. The system of orders is designed to allow for judicial oversight very quickly following the imposition of a domestic abuse protection notice. The police are required to apply to the court for an order within one court day of making a notice, and the court is required to hold a hearing in relation to the application by the following court day. That is an important procedural safeguard to protect the rights of any person who is subject to a police notice. The police can also apply for an order without first making a notice in a case in which they consider that an order is required to protect a person who is at risk of harm but the level of urgency is not such that a notice requires to be made.

The measures are intended to complement existing criminal and civil processes by providing a new means of protecting a person who is at immediate risk without requiring action on the part of the person at risk. Crucially, the measures are independent of any criminal investigation, as there may not be sufficient evidence to proceed with a criminal prosecution and unlock existing criminal court powers to impose special conditions of bail or remand, for example.

Part 2 of the bill makes provision to enable social landlords to transfer a tenancy to a victim of domestic abuse. It does so by creating a new ground on which a social landlord can apply for a court order to end a perpetrator’s tenancy with a view to transferring that tenancy to the domestic abuse victim, or, where the perpetrator and victim are joint tenants, ending the perpetrator’s interest in the tenancy and allowing the victim to remain in the family home as a sole tenant.

Having the legal ability to end the perpetrator’s tenancy in domestic abuse cases will allow social landlords to take a more proactive role in supporting and protecting victims of domestic abuse and in enabling victims to remain permanently in the family home without requiring the victim to commence the process themselves.

I suspect that I am not the only member to have seen a number of cases, unfortunately, in which a victim of domestic abuse felt that their only option was to flee the family home and become homeless. That cannot be right, and the bill seeks to redress that problem.

It is important to reflect on the core issues that the measures in the bill seek to address. At the moment, a person wishing to obtain protection from domestic abuse, particularly in relation to keeping a perpetrator away from the home, can do so only if the perpetrator enters the criminal justice system or if they themselves take out a civil order against the perpetrator, in which case the onus is on the victim.

We know that it can be very difficult for a victim of domestic abuse who is living with a perpetrator to take steps to address their long-term safety, particularly if that involves taking action in the civil courts to remove the perpetrator from the home. Some who gave evidence to the committee noted that that can result in a victim of abuse having no alternative but to make themselves homeless to escape that abusive partner.

The new scheme of protection notices and orders is therefore intended to fill a gap, given that someone who is experiencing domestic abuse is more likely to lack the freedom of action to pursue a civil court process to remove a suspected perpetrator from a shared home. The measures will also provide a person who is at risk with short-term breathing space that will enable them to consider both what longer-term steps they may wish to take to address their safety and that of their family, and their future housing options. The longer-term steps will depend on a victim’s particular circumstances, but could include the pursuit of existing civil measures, such as an application to a civil court for an interdict or an exclusion order.

Enabling social landlords to end a perpetrator’s tenancy in domestic abuse cases also seeks to address the real issue of why the victim and their family should have to leave their home, belongings and community to seek safety and sanctuary while the perpetrator remains undisturbed in the family home.

I welcome the Justice Committee’s support for the general principles of the bill. However, I acknowledge that during the committee’s scrutiny a range of issues were raised that are important to the eventual successful implementation of the legislation. Every committee member, from across the parties, confirmed their support for greater protection for domestic abuse victims. However, there was concern about some of the operational impact of domestic abuse protection notices and orders and their interoperability with other civil remedies. I hope to be able address those key areas in the rest of my remarks.

There is a definite need for full and effective scrutiny of those operational matters. I have discussed the issues that the Justice Committee raised with me with the chief constable of Police Scotland. The committee has also heard direct feedback from Police Scotland about some of the implementation challenges.

I will instruct an implementation board, led by the Scottish Government, which will bring together all the key agencies affected by the new legislation, including Police Scotland. Although some of the operational issues raised during scrutiny will be for the implementation board to consider as guidance is prepared on the use of the legislation, some policy matters also need to be addressed.

The Justice Committee’s report discussed the threshold of the test before a notice or an order can be imposed. I am in discussions with Police Scotland and can advise that we are looking at whether the test of future harm that requires to be met before a notice can be imposed should be set at “significant” harm. We will keep Parliament updated as that discussion continues, but members will not be surprised to hear that Scottish Women’s Aid and other victim support organisations have real concerns about increasing the evidential threshold. I will continue those discussions with Police Scotland and victim support organisations. Given the seriousness of removing a perpetrator from their home, it may be appropriate to set the threshold at a higher level.

I am pleased that the committee supported the length of time for which notices and orders can run. There is a careful balancing act with such timescales—keeping them as short-term protections, while respecting the rights of the person who is subject to the notice or the order, bearing in mind that that person has not been convicted of a crime. I consider that the bill strikes the appropriate balance.

The committee report also discusses the way in which the views of children can help to shape decisions about whether notices or orders should be imposed. There is a considerable challenge in balancing the fundamental policy intention of the bill, which is to provide immediate protection for those at risk of domestic abuse, while ensuring that the views of affected children are taken into account. The bill provides that the welfare of children is a key factor for the court when deciding whether to impose an order, if those children would be affected by such an order. Where the court is considering imposing an order with provisions that would relate to directly to a child, the bill emphasises that any views of that child of which the sheriff is aware should be taken into account.

I can confirm that we will consider carefully whether further provision is needed to ensure that the overarching policy intention of immediate protection for those at risk of domestic abuse can be delivered.

I look forward to the debate. I commit to considering all suggestions for how best the bill can be improved and, importantly, how effective operationalisation of the new system of orders and notices can be delivered. If we can deliver on both those aims, we can ensure that there is new and improved protection available for those at risk of domestic abuse.

I commend the general principles of the bill to Parliament.

Motion moved,

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

The Deputy Presiding Officer (Christine Grahame)

As most members taking part in the debate are doing so remotely, there is no opportunity for interventions. If members want slightly longer for their speech—a minute or more—they should feel free to take it, as we have time in hand.

I call Adam Tomkins, on behalf of the Justice Committee.

15:43  

Adam Tomkins (Glasgow) (Con)

This is a simple bill that raises quite complex problems—problems that the Justice Committee has not found easy. As we heard from the cabinet secretary, the bill does three things, each of which is designed to sharpen the effectiveness of the tools that we have to combat domestic abuse—and combat it we must. Every year, Police Scotland is called out to something in the region of 60,000 incidents of domestic abuse. That is 5,000 every month and nearly 1,200 every week. Each incident consumes, on average, nine hours of police time. The social costs are massive, to say nothing of the horrific impact on the victims of crime.

Let me say a word about the three new tools that the bill provides for, the first of which is the domestic abuse protection notice or DAPN. A DAPN enables the police to impose requirements on a person when the police have reasonable grounds to believe that the person is engaged in abusive behaviour. Such a notice is said to be an emergency measure. A breach of its conditions is a criminal offence, and its effects can be severe—forcing a person to leave their home and, if necessary, preventing them from approaching or contacting their family.

The second tool—the domestic abuse protection order or DAPO—is imposed not by the police but by a court of law. Wherever a DAPN is issued, the police must apply to the court for a domestic abuse protection order on the very first court day after the notice is issued. The hearing must be held and concluded in court on that day.

A DAPO may impose any condition on a person that may be imposed by a DAPN but, unlike the notice, the order may remain in force for up to two months, extendable to three months on a further application to the court. A breach of any condition that is imposed by a DAPO is a criminal offence. It needs to be understood that the effects of a DAPO on a person may be severe, excluding the person from their home and depriving them of contact with their family.

The third tool relates to housing. The bill gives social landlords a new power to evict a tenant where the tenant has engaged in abusive behaviour. That new power will sit alongside other powers that are already contained in Scots law, for example in the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and the Housing (Scotland) Act 2001.

The Justice Committee took evidence on the bill in December and this month. As well as hearing from the bill team and the cabinet secretary, we heard from stakeholders such as Scottish Women’s Aid and the Scottish Women’s Rights Centre, from the Law Society of Scotland and academics, from Police Scotland and from housing experts such as the Chartered Institute of Housing in Scotland and Homeless Action Scotland. I thank all the witnesses who helped the committee with our scrutiny. I again thank our tireless clerks and the Scottish Parliament information centre for all their work in supporting the committee through a fast-paced inquiry. I also thank the Government for its response to our stage 1 report, which was received earlier this week.

Our report focuses on two concerns, the first of which is whether the new powers that the bill contains are necessary and how they will fit alongside the plethora of other powers that the criminal justice system already has for dealing with family disputes and domestic abuse. The second concern is whether the new powers are compatible with Scotland’s human rights obligations.

The committee had no hesitation in supporting the policy intentions that underpin the bill. The committee supports the underlying policy intentions whole-heartedly and unanimously. However, good intentions, while they are a necessary ingredient of good law, do not of themselves guarantee that the law that we make is fit for purpose. The committee was anxious to ensure that the powers conferred by the bill are capable of being operated and implemented effectively.

The committee’s anxieties in that regard were amplified when we took evidence from Police Scotland. Detective Chief Superintendent Samantha McCluskey told us that she had a variety of doubts and puzzles about how the new powers contained in the bill, in particular the power to issue a domestic abuse protection notice, will work in practice. What is the evidential threshold that must be crossed before a notice is imposed? What should the police do in the event that there is not only an accusation of domestic abuse but a counter-accusation?

As Detective Chief Superintendent McCluskey said, that situation is

“very challenging for officers on the ground.”—[Official Report, Justice Committee, 22 December 2020; c 29.]

How should the conditions that are imposed under a DAPN sit in relation to other court-imposed orders or restrictions such as bail conditions? Could a failure to issue a DAPN open the police to potential liability in the event that subsequent abuse occurs? Whereas the police have become used to working in a multi-agency way, in partnership with others such as social workers, it is not obvious in cases of domestic abuse how issuing a DAPN on a person can be undertaken other than by the police alone. In all those operational respects, DCS McCluskey told us, clarity is needed. She said that it would be necessary to

“build a bit of confidence among police officers, who will be expected to make decisions and build the public’s confidence in our response”.—[Official Report, Justice Committee, 22 December 2020; c 31.]

The committee drew attention to those operational challenges in our conclusions and recommendations, and the cabinet secretary devoted several paragraphs of his response to our report, detailing how the Government, in consultation with Police Scotland, intends to ensure that those challenges are met and overcome. We have just heard from Mr Yousaf that the Government accepts that some of that work will be challenging in practice and will require careful implementation. I welcome both the tone and the content of what the cabinet secretary said on that point.

I will close by saying something about convention rights. It is clear that the powers to issue a DAPN and to make a DAPO interfere directly with human rights—most obviously, with the right to private and family life in article 8 of the European convention on human rights. Like most rights in the convention, that one is of course not absolute, but interferences with it need to meet two key tests: they must be necessary in the public interest and they must be proportionate.

I share the cabinet secretary’s view that, as drafted, the bill is likely to meet both those tests, but a key component of that judgment rests on the fact that both a DAPN and a DAPO are short-term measures. The longer that either is permitted to endure in any particular case, the greater the risk that a court will find a violation of convention rights.

Even this brief overview shows that there is a lot in the bill. Ideally, one would have wanted to be able to scrutinise it at a less frenetic pace, but we are where we are. Although the committee drew attention to the range of issues and concerns that I have outlined in my remarks, it is content to recommend—again, unanimously—that Parliament approve the general principles of the bill at decision time this evening.

15:51  

Liam Kerr (North East Scotland) (Con)

I confirm that the Scottish Conservatives will vote in favour of the principles of the Domestic Abuse Protection (Scotland) Bill at decision time tonight. We share the chamber’s condemnation of domestic abuse as a scourge on our society and welcome any attempt to address it and get justice for victims.

In his remarks, the cabinet secretary set out succinctly and well the rationale that underlies the bill. Consideration of the matter is particularly important at the moment, because we know from published data that domestic abuse has risen in Scotland over the past three years—the number of domestic abuse charges was at a four-year high in 2019-20.

At its core, the bill has three basic aims: first, to protect a person at risk of domestic abuse in the immediate term by the giving of a power to a senior police officer to issue a domestic abuse protection notice—DAPN—on a suspected perpetrator of abuse. Secondly, the bill sets out the further legal steps that might be taken to ensure the longer-term safety of a person at risk and specifically gives the civil courts the power, on application by the police, to grant a domestic abuse protection order—DAPO—for up to three months in relation to the perpetrator.

Finally, the bill provides protections around housing, which I am pleased to see. I recall that I proposed an amendment to the bill that became the Domestic Abuse (Scotland) Act 2018, which called for a review of measures that, among other things, would have excluded someone from a person’s house if they presented an immediate danger to the other person or a child.

As the convener has just made clear, the Justice Committee considered the bill on a tight timescale and I am grateful to the clerks, witnesses and my colleagues for the way in which they approached the process. That shortened timeframe is important to keep in mind, because all members take the view that, although this is an important piece of legislation with excellent aims, it is far from a finished product with regard to precision in drafting and practicality.

The committee was unequivocal that serious practical concerns over the bill would need to be addressed prior to approval at stage 3. It took that position because both legal bodies and the police in particular had signalled outstanding issues with the bill’s drafting, which could mean that its powers—perhaps not regularly used—could prove to be difficult to use in practice.

Officers on the ground must be able to use the law with confidence. I have no doubt that colleagues will talk at length on the bill’s issues, but I will focus my remarks on some of the key concerns that were raised by the police. Police Scotland raised concerns about the unilateral decision making that the bill outlines, particularly in relation to DAPNs. Its submission stated that for the police to be able to issue DAPNs

“without any consultation is not in step with the established partnership approach currently taken across public protection to address risk.”

Police Scotland reminded the committee that, where emergency measures such as those that are outlined in the bill are taken, that is usually done with a

“core group of statutory partners”

who

“have a key role in decision making from the outset.”

Police Scotland proposes that the risk identified must be in line with sexual offence prevention orders, which are well defined. It considers that other statutory and third-party agencies should be able to apply for a DAPO.

On the provisions in section 8, in which only the police can make such an application for an order, Police Scotland noted that

“reliance on a single organisation, such as Police Scotland, to apply the legislation, not only creates a significant and potentially unmanageable demand on a single service, but is out of step with the established partnership approach in Scotland.”

I am grateful to Scottish Women’s Aid, whose helpful briefing today makes a useful suggestion in that regard.

Police Scotland also flagged that the timeframe for DAPNs creates substantial operational challenges. In its written submission, it flagged that the necessary information technology and information sharing, the additional demand on officers, who—I think that I heard the convener of the Justice Committee mention this—spend an average of nine hours dealing with each domestic incident that they attend, and the logistical implications of ensuring legal representations at hearings create

“substantial challenges for the police”

and require sign-off from a senior officer. The Justice Committee heard that senior officers are typically desk based and do not routinely attend at the scene, so how that works in practice is key.

Furthermore, as the committee recommended, it will be important at stage 2 to define what a “reasonable excuse” for breaking a DAPN or a DAPO might be, because there are no examples or definitions in the legislation.

In summary, the concerns include, but are not limited to, the threshold for evidential proof—an issue on which the cabinet secretary responded in his letter, and on which Scottish Women’s Aid has made interesting points; the challenges of risk assessing at the scene; whether there is conflict with the ECHR; how breaches will be dealt with and what constitutes a breach; any liability of Police Scotland on a failure to act; and where DAPNs sit with other court-imposed sanctions or orders relating to children.

Perhaps where all that gets us to is that we need reassurances from the Scottish Government that the police will be appropriately resourced to apply the new legislation. The police must be adequately resourced to respond appropriately when assessing and imposing DAPNs, or dealing with DAPOs, and on enforcement. That will need training, which requires money and time.

In his response to the committee’s report, the cabinet secretary said that he will create an implementation board, which will examine how to bring in the proposed new powers of the police and courts against suspected abuse. The board will involve key partners, including Police Scotland. He said that

“the Implementation Board will carefully consider what guidance and training is required for police officers and others”

and that

“the operational processes required to enable an application for a DAPO to be prepared in line with the timescale set out in the Bill will be considered”.

That is good. However, leaving that aside, I do not see in that the cast-iron commitment to overall resourcing. It feels a bit like this is being back-loaded. Why would that not have been done in preparation for the bill? The cabinet secretary mentioned in his speech that he has spoken to the chief constable about those issues. Ought that not to have been done in advance?

In the same area, I note that the Law Society of Scotland—of which I remind members that I am a member—suggested that

“What would have helped is prior modelling to identify how and in what circumstances ... a DAPO will be used to provide effective short-term remedies.”

The Law Society also said that, although some of the matters that were raised in the Justice Committee’s report might be picked up by the implementation board,

“there needs to be some effective scrutiny, monitoring and evaluation provisions within the Bill including reporting to the Scottish Parliament.”

The Scottish Conservatives will support the bill, but the significant concerns about its operational and resourcing impacts must be addressed if it is to become law, otherwise it could be undermined from the start.

Every effort possible must be taken to prevent domestic abuse. The bill is another attempt to address this vile problem in society. As ever, we will work constructively with the Government to achieve that end.

The bill seeks to provide victims of domestic abuse with the protection that they need, and we are absolutely supportive of that principle. The Scottish Conservatives will always stand up for the victims of crime, and that is why we are very pleased to support the bill at decision time tonight.

15:59  

Rhoda Grant (Highlands and Islands) (Lab)

I, too, thank the clerks, SPICe researchers and witnesses who assisted the committee in arriving at its report on the Domestic Abuse (Protection) (Scotland) Bill at stage 1.

The Scottish Labour Party supports the general principles of the bill. Women and families who face domestic abuse need protection. Yet, too often, it is left to them to flee their homes and find their own protection through the courts, at their own cost, and often with very little knowledge of the justice system. They are often afraid to do so in case it triggers more violence. The point at which a relationship is over is often the most dangerous for victims of domestic abuse, and it is frequently the time at which such abuse can result in murder. It is wrong that victims of domestic abuse should have to organise their own protection. Our criminal justice system should be there to protect people, and that should mean everyone. It is a sad reflection on our society that that currently does not happen for victims of domestic abuse.

Proving such abuse is difficult, because it is hard to identify. By its very nature, it is an offence that is carried out in private, within the family home. It is seldom witnessed and can take many forms. Sadly, despite the work of the Parliament and subsequent Governments, we have still not seen an end to such abuse, and the bill provides the opportunity to put in place another form of protection. It is not a new concept; such orders are used the world over to provide additional protection. It is therefore disappointing that the bill is a bit of a dog’s dinner. It feels as though whoever designed it did not really understand the systems that exist or the very nature of domestic abuse. I sincerely hope that the Parliament will be able to make the bill workable as it makes its way through stages 2 and 3.

Domestic abuse has a detrimental effect on a child’s life: their resilience and self-esteem are damaged, as are their life chances. They do not even need to witness or experience it themselves—the tension and fear that surround them create fear and insecurity within them. Although children are offered protection under the bill, it is attached to their parent. I truly believe that children must have access to such protection in their own right. The NSPCC in Scotland has reported a 30 per cent increase since last April in referrals made to agencies regarding children in abusive households. That comes at a time when children are more isolated—they are trapped in abusive households, without the respite and support that going out to school brings.

The incidence of domestic abuse has increased, therefore its impact on children has increased. If children are contacting agencies for support when they witness such abuse at home, surely they themselves should be entitled to protection and to have the abusive parent removed, as happens in other countries such as Australia and New Zealand. Such a measure is not often used, but it can be another protection for children.

The nature of domestic abuse is such that the victim often covers up the crime, either because they fear retribution or because of their total lack of self-esteem, which has been systematically removed by their abuser. Therefore it is important that all victims have a right to such protection.

The issue of how domestic abuse protection notices interact with other measures, such as home detention orders or child custody orders, needs to be clarified in the bill. Such notices are an emergency intervention: they require no judicial oversight and can be put in place by senior police officers. The legislation therefore needs to be very clear about how and when notices will take precedence over other orders, especially those handed down by courts. It is right that notices have precedence in an emergency, but that needs to be made clear in the bill. If a domestic abuse protection order is subsequently sought, there will be oversight by a sheriff and during the court process steps can be taken to resolve any conflicts with other orders that might occur.

For instance, if the subject of a domestic abuse protection notice is also the subject of a home detention order, there will need to be a mechanism for their home base to be changed for the purposes of implementing that order. Some witnesses said that the imposition of a notice might indicate a breach of a home detention order, which might then necessitate the perpetrator’s return to prison. However, given that a notice is issued only where there is no proof of a crime to enable the subject of the notice to be arrested, charged and held in custody, I am unclear about how that could be considered a breach of a home detention order.

There are also child custody arrangements which may have been imposed through a court. We need to clarify how they interact with notices. We often hear of terrible cases where child custody and access rights are imposed by the court which leave the victims of domestic abuse in life-threatening situations.

Access arrangements are often used to continue the abuse and children are used as weapons, which damages not only the victim but the children. That is yet another reason for a child to have those protections in their own right.

That all needs to be very clear on the face of the bill. It needs to be clear that those notices and orders take precedence over any contact or custody rights of the person who is subject to them.

Notices and orders also bar someone from entering their own home. There is a reason for that. Too often, we see the victim of domestic abuse and their children having to flee their home and become homeless. The bill will help to ensure that they can remain in their own home. However, the bill is unclear on what steps will be taken to ensure that the subject of the notice has access to housing immediately if they have nowhere else to go. That is important, especially if they are subject to a home detention order that keeps them at that home; it is also important to avoid homelessness. It is also right that the abuser is forced to leave their home because that allows the person who is being abused to remain at home with their family.

The bill is necessary, but the framing has not been well thought out. I hope that the committee, working with the cabinet secretary, can put that right at stage 2 because, if it is in good order, the bill will provide a lifeline to victims of domestic abuse.

The Deputy Presiding Officer

Thank you, Ms Grant. Liam McArthur will open for the Liberal Democrats.

16:06  

Liam McArthur (Orkney Islands) (LD)

The Scottish Liberal Democrats strongly support any attempt to improve protection for those at risk of domestic abuse, particularly when they are living with the perpetrator of that abuse. In that context, we will be happy to support the principles of the bill at decision time, not least because they broadly reflect the policy adopted by the Scottish Liberal Democrats back in 2019.

That said, and as others have mentioned, it is clear that work is needed to address the practical concerns raised by various witnesses at stage 1, not least Police Scotland. However, I will start, as others have done, by thanking all those who have helped the committee to get to this point, notably the witnesses who gave both written and oral evidence, our clerks and SPICe. They and we have not been helped by the truncated timeframe for scrutiny, which the convener referred to. Given the nature and the complexity of the issues raised by the bill, that is far from ideal.

However, the principles of the bill are sound. They reflect those of the Istanbul convention, which is already in place in countries such as the Netherlands, Austria, Germany and Spain as well as in England and Wales, all of which have introduced short-term protective orders aimed at tackling domestic abuse.

In Scotland, as the cabinet secretary reminded us, current civil measures place the onus on the victim to apply for orders. Under the bill, the police would be able to impose a protection notice and thereafter apply to the court for a protection order, which could place requirements and prohibitions on a suspected perpetrator of domestic abuse. Those include removing a suspected perpetrator from a home shared with the person at risk of abuse and prohibiting them from contacting or otherwise abusing the person who is at risk while the order is in effect.

As well as protecting those at risk of domestic abuse, we need to improve outcomes for victims in relation to housing. Creating a new ground on which a social landlord can apply to the court to end the tenancy of a perpetrator of abusive behaviour, with a view to transferring the tenancy to the victim, is another welcome step. It matters—we know that over 60,000 domestic abuse instances were recorded by Police Scotland in 2018-19. At the same time, around 4,500 homelessness applications were made due to a

“violent or abusive dispute within a household”.

The vast majority of those applications were from women, half of whom had children. Domestic abuse is the single biggest reason for a homelessness application by women.

Those alarming numbers were on the increase before Covid, and nobody seriously expects that trend to have been reversed during the pandemic; indeed, the situation is quite the reverse, as the NSPCC reported earlier this month.

Therefore, the provisions of the bill are welcome and timely. Nevertheless, in a practical sense, as the committee heard repeatedly, the bill as drafted lacks clarity. The Law Society said that there is a risk of

“a proliferation of potentially overlapping measures”.

Indeed, the Government acknowledged the existing criminal and civil law provisions that could be used to remove a suspected perpetrator of abuse.

The thresholds for DAPNs also give rise to concerns for the Law Society, relating to the evidential basis that will be required for the police to take such a step. That needs to be proportionate if it is to be consistent with an individual’s ECHR rights. A DAPN can be imposed only by a senior police officer at the rank of inspector or above, but how would that work in practice?

There was also some disquiet about the threshold for taking action, as the phrase “reasonable grounds for believing” is at odds with the existing threshold, which opens up the potential for confusion. Although witnesses did not expect the power to be used extensively, greater clarity is essential.

The committee heard mixed views on the question of what the maximum duration of a DAPO should be. The Scottish Women’s Rights Centre and Scottish Women’s Aid argued that the proposed three-month period is too short, but concerns were also expressed about the ECHR implications of going beyond that, and my committee colleagues and I certainly understood and empathised with that.

Seeking the consent of those who are deemed at risk before implementing a DAPN or DAPO might be problematic, but the committee heard compelling evidence about the need to ensure that women’s voices are heard and reflected in the process, and the bill will need to find a way of achieving that. Although an automatic referral to support organisations might be a step too far, a presumption or even an opt-out provision as proposed by Scottish Women’s Aid does not seem unreasonable. Police Scotland assured the committee that such referrals routinely take place, but placing such a provision in the bill might offer further reassurance.

The point that the Shetland domestic abuse partnership made about the age threshold deserves further consideration. A perpetrator need not be 18 or over and can be as young as 16, so the bill needs to reflect that fact. That is also a reminder that, sadly, domestic abuse blights every community across Scotland. In my constituency, the campaign “Tak A Stand Orkney. It Does Happen Here” effectively says it all. I commend those behind the campaign for the work that they do in encouraging the reporting of abuse.

The bill is important; it can deliver real improvements for those who are affected by domestic abuse. However, changes are needed at stage 2 to give it the clarity, certainty and scope that it requires to be effective. I look forward to working with committee colleagues to achieve that goal. In the meantime, the Scottish Liberal Democrats will of course support the bill at decision time.

16:12  

John Finnie (Highlands and Islands) (Green)

As my colleagues have done, I give the usual thanks to everyone who has brought us to this point.

I say at the outset that my legitimate criticism of the bill is not at odds with my unequivocal support for addressing the scourge of domestic abuse. Like other members of the Justice Committee, I have been active in the field, and I declare an interest as a member of the cross-party group on men’s violence against women and children. However, we do not make laws for the sake of it. We want to make good and effective law, and law that is evidenced as being needed. We want law that will make a positive difference.

The Domestic Abuse (Scotland) Act 2018, which was considered by the Justice Committee, overhauled the criminal justice approach. It identified a gap, which related to

“keeping a perpetrator away from their home”.

That equated to a need for a law.

That of course stems from the Istanbul convention, to which the Scottish Government expressed a commitment in “Equally Safe: Scotland’s strategy for preventing and eradicating violence against women and girls”. The convention states that legislative measures should be taken to ensure that

“in situations of immediate danger, a perpetrator of domestic violence”

is required

“to vacate the residence of the victim or person at risk”,

and that there should be measures

“to prohibit the perpetrator from entering the residence of or contacting the victim or person at risk.”

That approach is necessary and seems straightforward but, unfortunately, the proposed legislation, or at least its application, is not. Police Scotland seems uncertain about how it might use the power and talks about “exceptional circumstances”. Members of Parliament, in scrutinising legislation, need to understand how it will work. The policy aim is clear and is to protect people who are at immediate risk. That is good, and the bill could do that, but what if the alleged perpetrator has left the scene? What role does the bill have in that situation? Will police have the power to detain someone pending the granting of a DAPN? Is such a power in the bill or elsewhere?

Another policy aim is to create time for further legal steps, but the timeframes are tight—an application must be made to the court on the next court day. What if, following the granting of a notice, the court decides not to grant an order?

Other members have alluded to the fact that the Law Society of Scotland mentioned the risk of

“a proliferation of ... overlapping measures”,

but it is fair to say that Scottish Women’s Aid does not see it like that. It believes that the measures in the bill are not intended to replace existing criminal measures, and that the routine criminal justice response should always be the first consideration. It thinks that the bill addresses a very specific situation in which it is not possible to use criminal justice measures. If that is the case, one might reasonably ask what happens at the moment in the circumstances in which the bill is intended to work—nothing? One would hope not. If there is a gap—I think that we accept that there is—does the bill fill it?

The policy memorandum states:

“There are a number of existing criminal and civil law provisions currently in effect which can be used to remove a suspected perpetrator of abuse from a home they share with a person at risk or otherwise prevent them from contacting the person at risk.”

My wish, and that of the Justice Committee, is to understand where the proposals in the bill fit with the existing arrangements.

Another policy aim of the bill is to reduce the chance that the person at risk becomes homeless or feels that he or she, rather than the suspected perpetrator, must find somewhere new to live. What of the suspected perpetrator? There might be insufficient evidence to arrest that person; they might not be subject to investigative liberation; and there might be insufficient evidence to take them to court. Is a police officer to deny that individual access to their residence?

In the Scottish Government’s response to the committee’s stage 1 report, the cabinet secretary said:

“I would like to take this opportunity to clarify that a senior constable, in making a DAPN, will not be acting as a court of law”.

Is that really the case? It seems to me that that is not a particularly helpful response. I would argue that

“acting as a court of law”

is exactly what the bill asks officers to do. That is precisely why there must be no dubiety about what is expected of them, or about what proof or evidence is needed.

I say again that it is a big step to sanction the police to advise an uncharged, unconvicted person who may be subject to no other civil or criminal restraints on where they can go, who they can engage with or where they can stay. Every police officer has to justify their decision making and explain their rationale, particularly when they place restrictions on a citizen. An officer will ask themselves, “What are my powers? In what circumstances can I exercise them? What is the right of redress for the individual?”

The policy memorandum mentions the fact that DAPNs and DAPOs are likely to interfere with people’s rights, but as that has been touched on by other members, I simply acknowledge that the matter has been covered.

The Justice Committee had significant concerns about the practicalities of the ability of Police Scotland to use the powers in question in the way that is intended. The cabinet secretary has told us that there will be further consultation with Police Scotland about how the powers can be used, but the Scottish Government should be well down the road from there. There was compelling evidence from Police Scotland, the Law Society and others that further consultation and clarity were required on how DAPNs are expected to work in practice. That is quite a serious criticism, given the stage in the legislative process that we are at.

In relation to breaches of DAPNs, the cabinet secretary said in the Scottish Government’s response:

“I consider that the Bill is clear”.

If the bill is clear, can the cabinet secretary outline what legal power there would be to detain someone who was not under arrest, pending the issuing of a DAPN?

I like flow charts—that is how my mind works. I would like to know what the options are, and for them to be laid out in that way. The Law Society put it more correctly when it said that prior modelling to identify how and in what circumstances such measures will be used would have been helpful.

I am conscious of time, so I simply say that it is reasonable to expect greater clarity on what are exceptional powers, which we are told will be used only in exceptional circumstances. It may be that I am very slow on the uptake. A sample scenario would be of great help.

Of course, the reality for victims is very bleak. The bill can play a part in resolving that, but only if we resolve all the issues that I have mentioned. I will leave it there.

The Green Party will support the bill at decision time.

The Deputy Presiding Officer

I remind members that there is a little time in hand for them to run over their time.

16:19  

Rona Mackay (Strathkelvin and Bearsden) (SNP)

The importance of the bill that we are debating to the victims of domestic abuse cannot be overstated, and I am more than happy to agree to its general principles at stage 1 today. I thank the bill team and the clerks for their exceptional work to prepare the stage 1 report within an extremely tight timeframe. There is much ground to cover on the detail of the bill, but I know that colleagues will pick up on the areas that I will be unable to cover. Indeed, many have already done so.

The Domestic Abuse (Protection) (Scotland) Bill is indeed a milestone. The orders that will be issued will provide emergency safety measures to victims, 80 per cent of whom are women and children, by removing the alleged perpetrator from the home and barring contact with the person at risk. That will be a safety net for people who desperately need it. The bill will also improve outcomes for victims by giving social landlords the power to end the tenancy of a perpetrator. Domestic abuse is the main cause of women’s homelessness in Scotland.

Crucially, the bill will give the police the power to issue a domestic abuse protection notice before applying to the civil court for a domestic abuse protection order. The significance of that is huge. It means that the victim, when she is at her most vulnerable, will not have to go through the court process herself and will not incur legal costs. The orders are not intended to replace existing criminal measures, but they will protect victims in cases where it is not possible to apply those measures but there is an imminent risk to safety.

Evidence that the committee received questioned whether there is a legislative gap to fill, given that we have non-harassment orders, civil protection orders and emergency barring orders. My view is that there is most definitely a gap and that the orders will fill it, providing immediate safety to victims by removing the perpetrator and barring further contact.

Traditionally, until now, it has been women and children who are forced to leave the family home in cases of domestic abuse. That is unfair and inhumane for both the victim and the children, who may be uprooted from their home, school and familiar surroundings through no fault of their own. They are guilty of nothing, yet they pay the price. That is why the orders are so important and necessary, particularly now, with levels of domestic abuse soaring during the pandemic. Dr Marsha Scott, chief executive of Scottish Women’s Aid, said:

“The publication of this Bill is a milestone moment for women, children and young people experiencing domestic abuse who for years have asked us why it should be them, rather than their abusers, who have to leave their homes, pets and belongings to seek safety.”

In its stage 1 report, the committee spoke of operational concerns in respect of Police Scotland. The convener and others articulated many of those well, so I will not repeat them. However, I am extremely pleased that the cabinet secretary has said that he will continue to engage with Police Scotland and key stakeholders to discuss their concerns. For legislation to be good, it must be workable. To that end, the cabinet secretary has confirmed that, if the bill is passed, he will set up an implementation board that is chaired by the Scottish Government to examine operational matters.

The timing and length of DAPNs and DAPOs featured heavily in our evidence taking. In order to be ECHR compliant, there is a short timescale for the senior constable who proposes the DAPN to apply for a court order, and the committee accepts that. The maximum duration of a DAPO will be three months, with some flexibility for extension in certain circumstances. Again, we believe that that is reasonable given that it is an emergency order, although there may be issues to do with eviction and rehousing. Those could be addressed at stage 2.

I am passionate about the bill and I am particularly delighted that the breach of an order will be a criminal offence. An example of a breach would be stalking by a partner or ex-partner where an order has been issued. More than half of stalking offences are committed by an ex-partner.

In 2019, I proposed a member’s bill to introduce stalking protection orders, which the police could apply for on behalf of the victim. The proposal was paused in order to evaluate the effects of the newly introduced Domestic Abuse (Scotland) Act 2018. If the bill that we are debating today is passed, another legislative gap will be filled, and I could not be happier about that. However, we know that stalking usually takes place over a period of time and it may last longer than three months if no arrest has been made. I will therefore consider lodging an amendment at stage 2 to propose that the order be eligible for extension in cases of stalking breaches.

Section 4 relates to the police paying attention to the victim only when they are aware of the woman’s views. I believe that the views of women and children should be actively sought, as should the woman’s consent to an order. To issue an order without consent would be to further disempower the victim. Where coercion is suspected, which is often the case, an interim order could be issued without consent in order to allow time for further investigation with a view to criminal action.

In relation to the evidential threshold for issuing orders, as the cabinet secretary has outlined, women’s organisations have expressed concern over the wording of “significant harm” in the Government’s response to the committee. I am sure that that is something else that can be addressed at stage 2.

There is so much to welcome in the bill. At last, abused women and children will have emergency protection that has so far been lacking—a safety net for them and any children involved. There are issues to be resolved, as we have heard, but I know that the Government will work with stakeholders to make this vital piece of legislation work for everyone. We owe it to so many silent victims who are living in fear. The legislation is the beginning of the end for perpetrators of abuse, and I urge members to vote to agree to the general principles of the bill at decision time.

16:25  

Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)

I welcome the Domestic Abuse (Protection) (Scotland) Bill at stage 1. Scottish Conservatives will always stand up for victims of abuse and we will support the general principles of the bill.

Scottish Women’s Aid and the Law Society of Scotland, to name two organisations, have welcomed the bill’s proposed powers, which are intended to fill a gap in legislation, or, as my colleague Adam Tomkins said,

“sharpen the effectiveness of the tools that we have”

to help those who may be experiencing domestic abuse. The powers aim to reduce the risk that a person has to make themselves homeless in order to provide a safe pathway to other forms of safety.

Sadly, we know that domestic abuse is on the rise in Scotland. The number of domestic abuse incidents recorded by Police Scotland has risen in the past three years, from 58,108 in 2015-16 to 60,642 in 2018-19. It is concerning to see the number of incidents rising, but, as I have previously said in the chamber, that must be seen through the prism that perhaps more victims feel confident and empowered to come forward.

I thank my local women’s refuge, Border Women’s Aid in Hawick, for its important work. It has worked tirelessly to help women gain freedom from abusive relationships. It provides safe accommodation and specialist support for up to a year for women and their children who have left abusive homes. Through its excellent outreach service, it supports many women in the community who currently live with abuse while they plan for a life beyond it.

We have come a long way in supporting victims, but there is still a lot more work to be done. I believe that legislation must go further in tackling the domestic abuse issues that occur post-separation, which I will touch on later in my speech.

I want to make two main points regarding how we can strengthen the bill to help the system to empower victims. Many members have discussed both these issues in the debate.

First, we welcome the two new powers: the power for courts to make the domestic abuse protection orders and the power for the police to make domestic abuse protection notices. However, we have concerns about their implementation. I thank my colleague Liam Kerr for raising points during the passage of the Domestic Abuse (Scotland) Bill in 2018. He proposed an amendment to the bill that would have called for a review of measures that would have, among other things, excluded someone from a person’s house if they presented an immediate danger to that person or their child.

The Justice Committee, the Law Society of Scotland and Police Scotland have noticed issues with the current drafting of the powers. On section 4, the Law Society has questioned whether a DAPN is a proportionate measure in the context of the relevant rights under the European convention on human rights. It remains uncertain how a DAPN will be issued in practice, and the bill does not appear to make a specific power available to the police to remove a suspected perpetrator to the police station in relation to a DAPN.

The committee has noted those concerns and they will be dealt with at stage 2, following proper consultation with Police Scotland, to ensure that the new powers are fit for purpose and effective.

Secondly, I want to touch on the important issue of financial abuse, especially post-separation. We know that when a victim leaves a perpetrator, there can still be ties that unfortunately link them to that person. Lack of money and financial resources is the main reason why women return to abusive partners post-separation, and economic barriers and a lack of financial independence are the main factors in why women stay in abusive relationships.

According to the Co-operative Bank and Refuge, one in five women and one in seven men in the UK have experienced domestic abuse from a current or former partner and one third of victims did not tell anyone at the time that they were being abused.

We know that the UK Government has provided £22 million to support tackling domestic abuse and sexual violence in the community access support services and £10 million to domestic abuse safe accommodation charities. That has helped many people in difficult situations.

Just this week in the House of Lords, Baroness Lister has been instrumental in bringing amendments to the committee stage of the UK Domestic Abuse Bill. Her amendments seek to ensure that those who were previously personally connected are protected from any coercive and controlling behaviour, including economic abuse that occurs post-separation.

Post-separation coercive and controlling financial abuse is widely recognised. I am glad that banks such as the Bank of Scotland and the Royal Bank of Scotland have been supportive of victims and have set out guidance and best practice for employees on how to treat sensitive situations, such as victims accessing bank accounts or closing accounts that they have with abusive partners.

There are provisions in the Domestic Abuse (Scotland) Act 2018 to cover coercive behaviour, even if the people are ex-partners. Section 3(3)(c) of the Domestic Abuse (Protection) (Scotland) Bill refers to

“controlling, regulating or monitoring person B’s day-to-day activities”.

I am not a member of the Justice Committee, but will the cabinet secretary clarify in his closing remarks whether financial abuse post-separation is covered in the bill and whether the new notices and orders are able to deal with coercive financial abuse post-separation?

In conclusion, the Conservatives support the general principles of the bill, but there are issues that require to be addressed. As my colleague Liam Kerr said, many stakeholders, such as Police Scotland, have significant concerns about the operational and resource impacts of the bill. Those concerns must be addressed if the bill is to become law; otherwise, it could undermine any convictions that take place under it. The proper financing and resourcing of our police force to ensure that it can continue its good work is crucial to the bill’s efficacy and the tackling of domestic abuse. I urge the Scottish National Party Government to ensure that our police officers are fully equipped to root out an evil that continues to be a scourge on our society. The support groups, charities and victims of domestic abuse need to be listened to so that the Scottish Government can get it right.

16:32  

Fulton MacGregor (Coatbridge and Chryston) (SNP)

As a member of the Justice Committee, it gives me great pleasure to speak about the bill. As we have heard, the bill builds on the important legislation that came into force last year, which gives the police and prosecutors the powers to ensure that those who participate in coercive or controlling behaviour are held accountable for their actions. Make no mistake: such behaviour is domestic abuse, and it is now treated as such.

Case numbers are going up, but that should not be surprising. That may not necessarily represent higher prevalence; rather, people may feel more able to report such behaviour, and there is a clear message from the Government and society that it will not be tolerated. We should welcome that.

The bill will offer additional protection to those who are at risk of domestic abuse, especially in cases in which the person is living with the abuser. A person should feel safe in their own home. During these times of lockdown, when we cannot leave our homes, the bill could not be more timely. More money and restriction exemptions have been put in place to support those who are suffering, but the reality still remains that lockdown negatively impacts victims of domestic abuse. Options to move in with other family or friends may not be as readily available as they usually would be because of concerns about household mixing and virus transmission. People may be unclear about whether they can leave a situation, or they may even be told by an abuser that they cannot do so. Kids are not in school—we have already heard about that from Rona Mackay—and, of course, there is massive strain on our emergency services. All of that means that many victims are, even more than is usually the case, suffering in silence.

The bill will apply to all those who are at risk of domestic abuse. However, we know that women are disproportionately affected: they represent around 80 per cent of victims.

The Scottish Government is determined to protect everyone from domestic abuse and, at the same time, it will continue to implement the equally safe strategy, with a focus on supporting women and children who are at risk of abuse. With the bill, the police and the courts will gain powers to remove suspected abusers from victims’ homes and ban them from re-entering them.

If the bill passes, it will bring into force a domestic abuse protection order that allows courts to impose requirements on suspected perpetrators. It will allow for the removal of a suspected perpetrator where they share a home with someone at risk, and contact will no longer be allowed.

The bill also provides a power for the police to, where necessary, impose a very short-term domestic abuse protection notice ahead of applying to the court for a DAPO. The DAPN is intended to be very short term in its effect, lasting until the court reaches a decision about whether to impose a DAPO or an interim DAPO. The bill proposes that a DAPO could last for up to three months in total. In committee, we heard from witnesses who supported that, including Scottish Women’s Aid, the Scottish Women’s Rights Centre and Professor Mandy Burton of the University of Leicester, who all believe that there is a need for new powers, as, in their view, a gap exists in the protection afforded to women under existing powers.

Another groundbreaking aspect of the bill is that it will give social landlords the power to end or transfer the tenancy of a perpetrator of domestic abuse to prevent a victim from becoming homeless and enable victims to remain in the family home. Tenants who are affected by domestic abuse should not have to leave their family home—we all agree on that. However, it is often the case that children are also shared in such a situation, which makes it harder for someone to find suitable accommodation, and the upheaval can be deeply traumatic on top of what has already taken place. It is recognised that, by allowing for a transfer of tenancy, victims and their families will be able to stay in their home without having to seek temporary accommodation or declare themselves homeless. Many victims stay in a relationship with their abuser because they have nowhere to go and cannot fathom the ordeal of leaving their home and finding suitable accommodation. That part of the bill will help put a stop to that situation and help redress an imbalance that has been around for some time.

As we have already heard, however, there are issues to be discussed further at committee. It is fair to say that the bill as it stands is not the finished article; every speaker, including the cabinet secretary, has reflected on that today.

Concerns have been raised about the suggested evidential threshold that would enable a domestic abuse protection order or a domestic abuse protection notice to be made. As we heard, the justice secretary has confirmed that a Scottish Government-led board will be established to ensure the effective implementation of proposed new measures to protect victims of domestic abuse.

We have also heard concerns from several speakers about significant operational and resourcing challenges for Police Scotland. I am delighted that the cabinet secretary has indicated that there will be on-going engagement with Police Scotland on those issues, because, from the evidence that we heard—[Inaudible.]—would be required.

Shared Parenting Scotland, as well as the convener and others, have raised concerns about the bill’s compatibility with human rights, including the concern that an alleged perpetrator who is subjected to a DAPN or DAPO may not have actually committed an offence. Those who have those concerns can be reassured that they have been heard and considered by the committee, but they should also understand that we need to balance those concerns against the possibility of not doing more to protect victims and the devastating consequences that can occur when we do not act decisively. Much as with the previous domestic abuse legislation that the Justice Committee considered, it is important for people to know that the committee takes into account all those issues, but we have to have—[Inaudible.]—when doing that.

Scottish Women’s Aid has played an instrumental role in the development of the bill and has made recommendations to members to improve it further. Those include strengthening the definition in section 1 on the application of DAPNs and including in section 4 a more robust duty to actively seek the views of women and, where practicable, children, as well as adding appropriate wording around the test and the thresholds on imminent risk. In section 8, it recommends adding a more robust duty to actively seek the views of children and including the need for consent of women, and an amendment to the categories of applicant for a DAPO. In sections 9, 13 and 18, it recommends extending the duration of DAPOs to allow section 18 proceedings to conclude—we have heard concerns about that, as Liam McArthur pointed out. I welcome the cabinet secretary’s engagement with Scottish Women’s Aid on those issues. Given that group’s expertise in the area, I think that we need to consider all those suggestions very carefully as we move the bill through Parliament.

I am not sure of my time, because I am at home and have not set a clock—my apologies. I conclude by saying that I am confident that the bill will make much-needed changes to the lives of victims of domestic abuse, and I urge members to support its general principles at decision time.

16:39  

Pauline McNeill (Glasgow) (Lab)

First, I thank the Justice Committee for its close scrutiny of this important bill. The pandemic has sparked a plague of domestic violence that the United Nations has called a “shadow pandemic”. We are told to stay home and stay safe, but unfortunately for a lot of women, their home is not safe. Close the Gap notes that one in four women experiences domestic violence in her lifetime.

Women are not subjected only to physical abuse; they are subjected to coercive control. The Domestic Abuse (Scotland) Act 2018, which sought to criminalise coercive control, was a very significant development in the law.

The lockdown has inadvertently given abusers the means by which to further restrict their partners’ freedom and is threatening their safety. Scottish Women’s Aid reports that two thirds of survivors who identify as currently experiencing abuse told the organisation that the abuse started during Covid-19 lockdown restrictions.

The existing system of civil protection orders in Scotland offers predominately longer-term protection to the person who is at risk, so the bill seeks to add new immediate and short-term powers and adds to the legal resource for people who are at risk of domestic abuse.

The bill brings us into step with a range of countries including England, Wales, the Netherlands, Austria, Germany and Spain, which have introduced short-term protective orders that are aimed at tackling domestic abuse.

The bill also proposes two new powers that do not require that the consent of the person who is at risk be exercised. A senior police officer will have the power to impose a domestic abuse protection notice on a suspected perpetrator of abuse, and the power will be available to the civil court, on application by the police, to grant a domestic abuse protection order against the perpetrator of abuse. The bill proposes that that would last up to three months in total. Those new powers will have legal effect only in Scotland, and not in the rest of the United Kingdom.

The vast majority of victims of domestic abuse are women, although children are also victims. Children experience short and long-term cognitive, behavioural and emotional effects as a result of witnessing domestic abuse. Only this week, it was reported that the NSPCC is concerned that, during the period of the pandemic, the risk of young people suffering terrible consequences from domestic abuse has intensified. The NSPCC helpline for adults service is increasingly worried about children, and has heard from neighbours who report hearing children crying and incessant arguing in nearby homes.

The average monthly number of domestic abuse referrals from the NSPCC to Scottish agencies including the police and local authorities has risen from 32 in the first three months of last year to 42 in the last two months. Calls to the NSPCC helpline have risen by more than 50 per cent across the UK. Joanna Barrett from NSPCC Scotland said this week that

“With families facing increased pressure behind closed doors, lockdown restrictions have made some children more vulnerable to experiencing domestic abuse, as well as other forms of abuse and neglect.”

We believe that the protections in the bill need to apply equally to children who might have been direct victims of abuse.

Section 18 of the bill proposes a new power for social landlords to end a tenant’s interest in a tenancy when there has been domestic abuse. That matter was brought to my attention by the Chartered Institute of Housing and by Scottish Women’s Aid. The section intends to help tenants who have been affected by domestic abuse to remain in the family home and avoid moving into temporary emergency accommodation.

I note the contribution of the homelessness and rough sleeping action group and Scottish Women’s Aid, which have done incredible work in that area. Dr Marsha Scott, the chief executive of Scottish Women’s Aid, said:

“Domestic abuse is the leading cause of women’s homelessness in Scotland”.

and

“We have long said that Emergency Protective Orders will make an immediate and significant difference for those women and children, offering them respite and breathing space as they seek support and safety.”

The role of social landlords is also key, but as other members have said, it is one of the aspects of the bill that will need to be tested to ensure that it is compliant with human rights law. I have a question for the minister who closes the debate. What happens to a perpetrator when they are removed from the home? Is there an obligation to house them?

I support the general principles of the bill. Once again, the Scottish Parliament has shown that it is leading the way in challenging domestic abuse for the women, children and others who are affected by it. When the legislation has gone through Parliament and undergone its scrutiny, it will make a very significant contribution.

16:45  

Shona Robison (Dundee City East) (SNP)

Like others, I begin by thanking the Justice Committee clerks for all their hard work on the bill so far, and the witnesses who provided extremely valuable evidence to the committee.

The Covid-19 pandemic has highlighted the importance of protecting women and girls who find themselves isolated and vulnerable due to the actions of an abusive partner. The “Stay at home” message has been particularly difficult for many women who are victims of domestic abuse because their home is not a safe place for them to be. In the year 2018-19, reported incidents rose by around 2 per cent, but in the early part of 2020, particularly during the first lockdown period due to the pandemic, the number of incidents was 9 per cent higher than it was for the equivalent period in 2019.

The bill will apply to all who are at risk of domestic abuse, but we know that women are disproportionately affected and represent 80 per cent of victims. The bill builds on legislation that came into force last year, which gave police and prosecutors greater powers to target people who engage in coercive or controlling behaviour. A person’s home should be a place of safety; the new orders that will be introduced will give victims of domestic abuse the space and time that are needed in order to address their longer-term safety and their housing situation.

The bill creates additional protection for people who are at risk of domestic abuse, particularly people who live with their abuser. The police and courts will, under the new legislation, gain powers to remove suspected abusers from victims’ homes, and to ban them from re-entering.

The bill will also allow social landlords to end or transfer the tenancy of a perpetrator of domestic abuse in order to prevent a victim from becoming homeless by enabling them to remain in the family home. That was welcomed by Dr Marsha Scott from Scottish Women’s Aid, who said:

“Domestic abuse is the leading cause of women’s homelessness in Scotland, with women often facing the impossible choice between living with an abuser and making themselves and their children homeless.”

The bill creates additional protection for people who are at risk of domestic abuse through trying to fill a gap by allowing immediate protection for a short time for a person who is experiencing domestic abuse in order to keep them safe while they work out their next steps.

Police and courts will gain powers to remove suspected abusers from victims’ homes by providing courts with a new power to make a domestic abuse protection order, which can impose requirements and prohibitions on a suspected perpetrator of domestic abuse. As I said earlier, that includes removing them from a home that they share with a person who is at risk, and prohibiting them from contacting or otherwise abusing that person while the order is in effect.

Liam Kerr

Where does the member stand on giving consideration to allowing third-party organisations such as victims groups to file applications for DAPOs?

Shona Robison

I have some sympathy for that. We would need to explore the suggestion further to consider which organisations might be included. It would not be without its difficulties, but it is something that the committee should explore.

The bill also provides a power for the police to impose, where necessary, a very short-term domestic abuse protection notice ahead of applying to the court for a DAPO. Barnardo’s Scotland welcomed the measure and said that the new legislation would protect and safeguard victims and their families. It stated:

“Often abuse victims don’t want to move out of the home because they don’t want their children to experience upheaval. It is imperative that where possible the perpetrator is held to account and removed from the family home.”

The bill will also allow social landlords to end or transfer the tenancy of a perpetrator of domestic abuse in order to prevent a victim becoming homeless by enabling them to remain in the family home. Part 2 of the bill proposes a new power for social landlords to do just that.

The bill is intended to improve the immediate and longer-term housing outcomes for domestic abuse victims who live in social housing—that will be extremely valuable—by creating a new ground on which a social landlord can apply to the court to end the tenancy. Alternatively, where the perpetrator and victim are joint tenants, an application can be made to end the perpetrator’s interest in the tenancy and enable the victim to remain in the family home. Those are important measures.

I am pleased that the Justice Committee has backed the general principles of the proposed legislation, while highlighting some of the issues that need to be considered further and making recommendations on how the enhanced protective orders could operate effectively.

I welcome the commitment from the Cabinet Secretary for Justice to establish an implementation board to ensure that there is clear guidance on use of the legislation. As the cabinet secretary and other members mentioned, there are issues that require further consideration, including concerns about the suggested level for the evidential threshold that would enable a DAPO or a DAPN to be issued.

As other members have mentioned, there are also concerns around operational matters, which have been raised in particular by Police Scotland. I welcome the cabinet secretary’s commitment to continue to discuss with stakeholders their concerns about those and other matters that are raised in the stage 1 report, as the bill progresses to the next stage.

16:51  

Rhoda Grant

The debate has been interesting. It is clear that the bill is required and that it has the potential to save lives, so we need to get it right. The bill has unanimous support, but members from all parties have expressed concerns about how it has been drafted and how it will work in practice.

John Finnie asked whether the bill fills a gap. Sadly, there is a gap that needs to be filled. Victims are often forced to leave their home and become homeless because they have suffered abuse. Many will return home because they are unable to cope with homelessness, and the abuse then continues—if anything, it gets worse, because the perpetrator knows that their victim has no other option. As Shona Robison said, many victims stay simply because they cannot face the homelessness that they would experience if they decided to leave.

A number of members talked about the evidential threshold for the use of a DAPN or a DAPO, and asked how people would know when those measures should be used and whether the test should be one of significant harm. I believe that that would set the bar far too high; I agree with Rona Mackay’s call for caution in setting such a bar. How would we define “significant harm”? I believe that if there is a reason to suspect that domestic abuse has occurred or will occur, a notice must be put in place. As Pauline McNeill pointed out, the notices cover coercive control as well, and any threshold that is put in place needs to take that into account.

Like others, I welcome the announcement that an implementation board will be set up to work through the concerns. That needs to happen before stage 2, but it should have happened earlier; I agree with Liam Kerr that it should have been done well in advance of the bill’s introduction.

A number of members raised issues that have to be dealt with regarding the implementation of the bill. There are things that simply do not work. Liam Kerr highlighted police concerns about the lack of partnership working and the question of who can apply for an extension. The proposal that a DAPN can be issued by an inspector or someone above that rank caused concern, because it was pointed out that an inspector would very seldom attend a report of domestic abuse. However, perhaps that would provide for checks and balances in the system, because a constable who attended a domestic abuse complaint would have to go back to the inspector and persuade them that a notice needed to be put in place as they suspected that there would otherwise be a risk to the victim of domestic abuse.

Those things have not been made clear in the bill, and people are left wondering how it will work in practice. The implementation board must deal with such issues quickly, so that we can ensure that the bill is fit for purpose and does what it is intended to do.

A number of speakers talked about how the views of children, and not only those of the victim, should be sought before a notice or order is put in place. That would be almost impossible with notices, which are to be used in emergency situations. The sheriff should certainly seek children’s views, as well as those of the victim, before an order is put in place. That must be done in a way that does not further traumatise the child. I am glad that the cabinet secretary is looking at that.

Pauline McNeill and Liam McArthur talked about the NSPCC’s findings on the need for protection for children. During the pandemic, there has been a frightening increase in the number of children seeking help due to domestic abuse. We must put protection in place for them—they should be protected in their own right by the bill.

A number of speakers mentioned human rights. Adam Tomkins asked whether the bill’s provisions are in keeping with human rights. I believe that they are; they are certainly in keeping with the Istanbul convention, which the Scottish Government has signed up to. The court will have judicial oversight of domestic abuse protection orders, and the subject of such an order can also make representations to the court. Their human rights are in no way infringed.

There were concerns that the length of time for which the notices and orders will apply could lead to human rights violations. Notices will go to court very quickly; indeed, the police expressed concerns about how quickly that will happen. Given that there is no judicial oversight of the notice, the sooner that it is in court, the better. The order, however, must apply for long enough to allow the victim to find protection in their own right and to have that put in place.

Pauline McNeill also talked about whether removing someone from their own home affects their human rights and whether they have to be rehoused. We must remember that the bill exists because women and children are being forced out of their homes every day by domestic abuse. Redressing the balance to ensure that it is the perpetrator who leaves is the right thing to do. However, at stage 2, we must consider whether the police have a responsibility to ensure that the perpetrator is not made homeless.

We support the general principles of the bill and will vote for it at decision time.

16:58  

Margaret Mitchell (Central Scotland) (Con)

I thank the Justice Committee and the clerks for the stage 1 scrutiny of and report on the important Domestic Abuse (Protection) (Scotland) Bill.

Sadly, and despite all efforts to the contrary, domestic abuse is still with us. Worse still, it is on the increase, with the number of incidents recorded by Police Scotland rising in the past three years. More concerning still is the fact that abuse has increased dramatically during lockdown as victims of domestic abuse have been trapped with their abusers. While we are all encouraged to stay home and keep ourselves safe to tackle the pandemic, the unpalatable truth is that home is not safe for everyone. When abuse, either physical or coercive and controlling, becomes intolerable, victims are forced to flee the family home, with all the disruption, anxiety and practical difficulties that that entails. They, and their children, may become homeless.

When someone seeks protection from domestic abuse under the existing civil law, the perpetrator can be kept away from the home only if they enter the criminal justice system, or if the person at risk applies for a civil court order against the perpetrator.

The bill seeks to fill what has been described as a gap in the law by improving the protections that are available for those in coercive, controlling relationships who are at risk of domestic abuse, particularly when they live with the perpetrator. It provides the courts with a new power to make domestic abuse protection orders, which, when in effect, can prohibit a suspected perpetrator from contacting or otherwise abusing the person at risk. Where necessary, the police have the power to impose a short-term domestic abuse protection notice in advance of an application to the court for a DAPO.

Abusive behaviour is defined as behaviour that

“a reasonable person would consider ... likely to cause ... physical or psychological harm.”

The list of abusive behaviour is non-exhaustive and can include a single incident or a consistent pattern of abusive actions.

The bill creates a new ground for social landlords to apply to the court to end the tenancy of the perpetrator of abusive behaviour with a view to transferring the tenancy to the victim or ending the perpetrator’s interest in the tenancy, where the perpetrator and victim have a joint tenancy, and enabling the victim to remain at home. Those are good measures, which are aimed at avoiding homelessness and improving the immediate and longer-term social sector housing outcomes of domestic abuse victims.

However, various stakeholders have pointed out that the three-month maximum timescale for a DAPO may be too short to ensure that eviction proceedings can be completed. Furthermore, Police Scotland has stressed that DAPNs and DAPOs, which can require the perpetrator to leave the home that they share with the victim, should be used only where absolutely necessary, and not routinely. How often and exactly when and where DAPNs and DAPOs can be used needs to be clear. Additionally, there are some concerns that, in seeking to provide improved protection for victims, the rights of suspected perpetrators under the European convention on human rights may be infringed.

Although the bill’s objective of ensuring adequate protection for victims from their abusers is welcome, the concerns of key stakeholders must be addressed. For example, section 4 provides that only a senior police officer is able to issue a DAPN. Police Scotland and the Law Society of Scotland have questioned how that would work in practice, because senior officers are generally desk bound and rarely at the scene of a domestic abuse incident. Also, the senior officer must have “reasonable grounds” to believe there has been abusive behaviour and issue a DAPN. The Law Society questioned what “reasonable grounds” means in practice. Would a neighbour’s anonymous tip-off be sufficient, even if the victim disputes the claim? Any DAPN test must be clear and carefully considered.

Sections 7 and 16 provide that it is an offence to breach a DAPN or DAPO without a “reasonable excuse”. No explanation or examples are given as to what would constitute a reasonable excuse for breaching a DAPO or DAPN, yet both breach offences can result in not only a fine but a prison sentence. Clarification here is therefore essential. Police Scotland has legitimate concerns that officers could be held liable for failing to issue a DAPN when required or wrongly issuing one. The need for further training and guidance for police officers has been stressed. It has also been stressed that the police should be adequately resourced to, as Scottish Women’s Aid states,

“ensure the effective implementation of the Bill”.

The Scottish Conservatives know how important the bill is to the victims of domestic abuse and we whole-heartedly support its general principles. However, we consider that the bill requires considerable revision. The significant concerns about how some provisions will work in practice cannot be left to an implementation board to resolve, and they must be addressed at stages 2 and 3 to ensure that the bill protects domestic abuse victims to best effect and that police officers are sufficiently resourced and trained to properly discharge the extensive new powers that the proposed legislation gives them.

17:05  

Humza Yousaf

This has been a very good debate. I welcome the contributions from across the chamber, and I welcome the fact that each and every member we have heard from will support the general principles of the bill at decision time, following this stage 1 debate, for which I am grateful.

I am also grateful for members’ feedback. I know that, in the midst of a global pandemic, it is difficult to have the conversations that we would normally have had on the bill—the process has undoubtedly been truncated—but I appreciate the fact that we have a comprehensive stage 1 report. Once again, I thank the Justice Committee for its report, the clerking team for the effort that it put in and all those who gave evidence to the committee.

I will spend some time addressing some of the areas of concern that were raised by members—I have taken a fair number of notes on some of them. A number of members, including Rhoda Grant, John Finnie, Rachael Hamilton and Liam Kerr, raised the interaction of a DAPN or DAPO with other core orders, particularly those relating to the children of the person against whom a DAPO is made.

To be clear from the outset, it is a criminal offence, as the bill highlights, to breach any of the terms of a DAPO or a DAPN without reasonable excuse. The fact that a contact or residence order was in effect would not change that; it would not prevent a DAPN or DAPO from taking effect. I note the committee’s view, as articulated by a number of members, that the bill should make provision to make that absolutely clear. I will give careful consideration to that recommendation. However, I would need to ensure that an amendment to that effect would not risk calling into question provisions in other legislation where the issue is not made explicit. As ever, I would wish to ensure that such an amendment would not introduce any unintended adverse consequences. I should add that it is not unusual for courts to take into account child contact orders in imposing other orders, such as exclusion orders or non-harassment orders.

A number of members referenced home detention curfew in relation to the interaction of a DAPO or a DAPN with requirements on a person to remain at a particular address. Rhoda Grant, in particular, mentioned that issue in her opening speech, and I addressed it when I gave evidence to the committee. The answer is quite straightforward in a sense. The police may well impose a DAPN if they think that one is necessary to protect a person at risk of domestic abuse, and the court may well impose a DAPO if it considers that one is necessary for the same reason, although doing so may affect existing conditions to which a person is subject, such as staying at a particular address as part of their release on HDC. When a DAPN or DAPO is imposed, it will be for Police Scotland to ensure that the information about that development is passed on to the relevant agency. For HDC, that will be the Scottish Prison Service, and for release on licence, it will be the local authority supervising officer and the Scottish ministers.

Effective operational engagement will clearly be needed. It will essentially be for the authorities concerned—the SPS or the local authority supervising officer—to determine whether the individual can remain on HDC or under their licence conditions without being recalled back to custody, or whether the circumstances of the imposition of the DAPN or DAPO merit recall. I will ensure that the issue is discussed at the Government-chaired implementation board, but I do not think that it is as complex as some members perhaps—[Interruption.] I will continue.

A number of members also raised the potential extension of powers so that other organisations could apply to the courts for a DAPO, particularly local authorities and registered social landlords, which often have to respond to domestic abuse cases.

In some cases, it might be helpful for such organisations to apply for a DAPO on behalf of a person at risk rather than have to approach the police. I know that the Justice Committee has indicated in its report that that could be considered in the future. If Parliament passes the bill, and in light of experience of the scheme’s operation, I agree that it could be considered.

A number of members, including John Finnie, Pauline McNeill and Rhoda Grant, raised the question whether the suspected perpetrator should be offered more than advice and assistance. I carefully listened to opinions on that point and remain of the view that the provision in the bill is appropriate. My concern is that, if we were to impose a further duty on social landlords, they might be reluctant to use the powers that the bill provides. Existing homelessness legislation places a duty on local authorities to provide support and accommodation to those who present as homeless.

John Finnie said that he was concerned that the bill gives the police the powers of a court of law. I have a fundamental disagreement with him on that point, which I am happy to take further in conversation with him offline. It is because we are so concerned about the ECHR implications of any DAPN and because we believe that judicial oversight is required for such significant powers that the timescale within which a police officer has to apply to the court for a DAPO—they must do so on the next court day—is so narrow. I am happy to take those issues up with John Finnie.

Rachael Hamilton asked how DAPNs would be issued in practice. I refer her to similar provisions in England and Wales, where the majority of protective orders are issued at the police station. I take the point that, in some cases, an individual might refuse to go to a police station. In those cases, the police could return to the address and issue an individual with a DAPN. If that individual was not at their address—which is not an uncommon situation for Police Scotland to face—the police would use the necessary powers to track down that individual.

Rachael Hamilton also asked about financial abuse. That comes under the definition of domestic abuse; I should add that ex-partners are also covered in the bill. However, it may be an issue if individuals live separately, in which case a DAPO might not be the correct remedy.

The debate has been good and has helped me to understand members’ main concerns. I look forward to working with members across the parties to address a number of them.

Regardless of the concerns that individual members and their parties have, I have no doubt that we are all united in ensuring that the police have every possible tool to help tackle the scourge of domestic abuse—a cancer in our society that has been of great concern, particularly during lockdown periods. I commit to working with members across the chamber, operational partners and victim support organisations, and I look forward to further engagement on the bill.