Chamber
Meeting of the Parliament 16 March 2011
16 Mar 2011 · S3 · Meeting of the Parliament
Item of business
Domestic Abuse (Scotland) Bill: Stage 3
Amendment 2 will amend section 3(1)(za), so that it refers to the determination being granted under the new section that will be inserted by amendment 4. The effect is that section 3(1)(za) will no longer reflect the category of persons that are being protected by the interdict. Instead, it will refer to the determination made by the court under the new section that will be inserted by amendment 4.
Under section 3(2), a person who breaches an interdict to which section 3 applies is guilty of an offence under section 3(1). The section applies when an interdict has been granted on or after the date on which the sections come into force, a determination has been made that the interdict is a domestic abuse interdict and the determination is in effect, and a power of arrest is attached to the interdict under the Protection from Abuse (Scotland) Act 2001 and is in effect.
Following amendment 1, a determination must also be made by the court that an interdict is a domestic abuse interdict and that that determination is in effect, together with a live power of arrest, for breach of the interdict to be a criminal offence.
Amendment 3 is a consequential amendment, in that it ensures that the reference in section 3 to the term “interdict” including interim interdict extends to the new section that will be inserted by amendment 4.
Amendment 4 makes a provision in relation to the determination by the court that the interdict is a domestic abuse interdict. Proposed new subsection (1) provides that a person who is applying for or has obtained an interdict may apply to the court
“for a determination that the interdict is a domestic abuse interdict.”
Under proposed new subsection (2), the court may make the determination only if
“the interdict is, or is to be, granted for the protection of the applicant against a person who is (or was)—
(a) the applicant’s spouse,
(b) the applicant’s civil partner,
(c) living with the applicant as if they were husband and wife or civil partners, or
(d) in an intimate personal relationship with the applicant.”
That last point is probably the most difficult in the bill. The Government amended the bill at stage 2 to include spouses, civil partners and cohabitees. However, the amendment removed boyfriends and girlfriends—people in a relationship who have not formalised the relationship and do not live together—from the bill’s protection. Approximately 11,000 cases of domestic abuse are reported to the police by people who fall into that category as current partners and almost 19,000 are reported by people in that category who are ex-partners. It is unreasonable not to protect such a large number of people in the bill. The Government agreed and we worked together to find a resolution to the problem.
We were keen that the protection was not extended to family members, flatmates or business partners. The best way to define the category is “an intimate personal relationship”. By that phrase, we mean a relationship that spans from dating to one that is fully sexual, and the spectrum in between. It also covers same-sex relationships within that spectrum. It is difficult to determine when domestic abuse will start within a relationship; it depends on each individual offence.
Amendment 4 also provides, in proposed new subsection (3), that
“Before making a determination ... the court must give the person against whom the interdict is, or is to be, granted ... an opportunity to make representations.”
Proposed new subsection (4) provides that the determination has
“no effect for the purposes of section 3 until a copy of the interlocutor containing the determination has been served on”
the interdicted person. That means that the breach of the interdict, and extant powers of arrest, is not a criminal offence until the court’s determination that the interdict is a domestic abuse interdict and that it has been served on the interdicted person.
Proposed new subsection (5) provides that where the court varies the relevant interdict, it must review it to establish whether it is still a domestic abuse interdict and, if it is not, the court must recall the determination.
Proposed new subsection (6) provides that if a determination is recalled it
“ceases to have effect for the purposes of section 3”.
That means that any breach of the interdict would not be a criminal offence.
I move amendment 2.
Under section 3(2), a person who breaches an interdict to which section 3 applies is guilty of an offence under section 3(1). The section applies when an interdict has been granted on or after the date on which the sections come into force, a determination has been made that the interdict is a domestic abuse interdict and the determination is in effect, and a power of arrest is attached to the interdict under the Protection from Abuse (Scotland) Act 2001 and is in effect.
Following amendment 1, a determination must also be made by the court that an interdict is a domestic abuse interdict and that that determination is in effect, together with a live power of arrest, for breach of the interdict to be a criminal offence.
Amendment 3 is a consequential amendment, in that it ensures that the reference in section 3 to the term “interdict” including interim interdict extends to the new section that will be inserted by amendment 4.
Amendment 4 makes a provision in relation to the determination by the court that the interdict is a domestic abuse interdict. Proposed new subsection (1) provides that a person who is applying for or has obtained an interdict may apply to the court
“for a determination that the interdict is a domestic abuse interdict.”
Under proposed new subsection (2), the court may make the determination only if
“the interdict is, or is to be, granted for the protection of the applicant against a person who is (or was)—
(a) the applicant’s spouse,
(b) the applicant’s civil partner,
(c) living with the applicant as if they were husband and wife or civil partners, or
(d) in an intimate personal relationship with the applicant.”
That last point is probably the most difficult in the bill. The Government amended the bill at stage 2 to include spouses, civil partners and cohabitees. However, the amendment removed boyfriends and girlfriends—people in a relationship who have not formalised the relationship and do not live together—from the bill’s protection. Approximately 11,000 cases of domestic abuse are reported to the police by people who fall into that category as current partners and almost 19,000 are reported by people in that category who are ex-partners. It is unreasonable not to protect such a large number of people in the bill. The Government agreed and we worked together to find a resolution to the problem.
We were keen that the protection was not extended to family members, flatmates or business partners. The best way to define the category is “an intimate personal relationship”. By that phrase, we mean a relationship that spans from dating to one that is fully sexual, and the spectrum in between. It also covers same-sex relationships within that spectrum. It is difficult to determine when domestic abuse will start within a relationship; it depends on each individual offence.
Amendment 4 also provides, in proposed new subsection (3), that
“Before making a determination ... the court must give the person against whom the interdict is, or is to be, granted ... an opportunity to make representations.”
Proposed new subsection (4) provides that the determination has
“no effect for the purposes of section 3 until a copy of the interlocutor containing the determination has been served on”
the interdicted person. That means that the breach of the interdict, and extant powers of arrest, is not a criminal offence until the court’s determination that the interdict is a domestic abuse interdict and that it has been served on the interdicted person.
Proposed new subsection (5) provides that where the court varies the relevant interdict, it must review it to establish whether it is still a domestic abuse interdict and, if it is not, the court must recall the determination.
Proposed new subsection (6) provides that if a determination is recalled it
“ceases to have effect for the purposes of section 3”.
That means that any breach of the interdict would not be a criminal offence.
I move amendment 2.
In the same item of business
The Presiding Officer (Alex Fergusson)
NPA
We move to the next item of business. While members are changing places, I inform them that they should have before them the Domestic Abuse (Scotland) Bill a...
The Presiding Officer
NPA
Amendment 1, in the name of Rhoda Grant, is in a group on its own.
Rhoda Grant (Highlands and Islands) (Lab)
Lab
Before I speak to amendment 1, I thank the minister and his civil servants for their help in lodging the amendments. It was very much appreciated and I hope ...
The Minister for Community Safety (Fergus Ewing)
SNP
I express my gratitude for the way in which Rhoda Grant has approached the necessary amendments to the bill from stage 2. We appreciate that, and our officia...
The Presiding Officer
NPA
Amendment 2, in the name of Rhoda Grant, is grouped with amendments 3 and 4.
Rhoda Grant
Lab
Amendment 2 will amend section 3(1)(za), so that it refers to the determination being granted under the new section that will be inserted by amendment 4. The...
Bill Aitken (Glasgow) (Con)
Con
There were always going to be definitional difficulties. There is no doubt that when we sat down to establish whether a route forward was ascertainable, it w...
Robert Brown (Glasgow) (LD)
LD
I agree with much of what Bill Aitken said. It seems to me that proposed new subsection (2)(d) in particular has distinct difficulties. First, despite Rhoda ...
Fergus Ewing
SNP
These are important amendments. Following stage 2, two main issues were outstanding: the labelling of interdicts and interdicts protecting a girlfriend or bo...
Robert Brown
LD
Would the amendment, therefore, cover relationships between brother and sister or parent and child as well as the other categories that the committee was car...
Fergus Ewing
SNP
That is not our intention in respect of amendment 4. We have framed the wording carefully to cover boyfriends and girlfriends.
Stewart Maxwell (West of Scotland) (SNP)
SNP
The committee was concerned about the problem that could be associated with extending the definition to boyfriends and girlfriends, which Robert Brown has ju...
Fergus Ewing
SNP
As I said, that is not our intention. As members will appreciate, the drafting has been framed carefully by the Scottish Government legal department, with ad...
Robert Brown
LD
The minister said earlier that the wording covered not necessarily sexual relationships but perhaps emotional relationships. I am at somewhat of a loss to un...
Fergus Ewing
SNP
We believe that it covers boyfriend and girlfriend situations. We accept that the wording that we have come up with covers a wide variety of relationships. U...
Rhoda Grant
Lab
I concur with what the minister said. The only thing that I would add concerns what Robert Brown said about latitude in the amendment. We have not defined do...
The Presiding Officer
NPA
That ends consideration of amendments.