Hansard

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.