Hansard

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.