Hansard

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.