Chamber
Meeting of the Parliament 19 January 2011
19 Jan 2011 · S3 · Meeting of the Parliament
Item of business
Domestic Abuse (Scotland) Bill: Stage 1
An evaluation of all Scottish civil protection orders was carried out in 2003 and identified problems, which fell into two main categories: access to justice and a failure to provide a robust response to breached orders. The bill attempts to address those problem areas in relation to domestic abuse.
The Justice Committee met on four occasions to consider the bill and to take oral evidence from witnesses, who included representatives of several women’s aid organisations, the Law Society of Scotland, the Association of Chief Police Officers in Scotland, the Crown Office, various legal representatives, the Scottish Government and Rhoda Grant MSP. I also visited the domestic abuse court in Glasgow. I am grateful to Sheriff Raeburn for taking the time to discuss with me the work that the court undertakes. I thank all those who gave evidence to the committee and congratulate them on the quality of that evidence. At this juncture, I also thank members of the clerking team, especially Anne Peat, for all their work on the bill.
With regard to access to justice, the bill inserts a new section in the Protection from Harassment Act 1997 to remove the requirement to show a course of conduct before a non-harassment order is granted in civil proceedings involving domestic abuse. That will bring civil provisions into line with criminal provisions and remove the requirement for a victim to go through a period of repeated abuse before being able to access an order. Evidence received by the committee showed wide support for the proposal.
There was some debate in the committee about the meaning of the word “harassment” and whether it implied that the conduct would have to occur on more than one occasion. After discussion, the committee came to the conclusion that the conduct would not have to take place on more than one occasion—an opinion shared by the minister, who declared that he was “reasonably satisfied” after considering the matter at length.
While agreement on the new section was reached without much difficulty, section 2 was a bit more problematical. It seeks to amend the Legal Aid (Scotland) Act 1986 to make legal aid available without means testing or the levying of a contribution in respect of all applications for an interdict with a power of arrest or for a non-harassment order, where domestic abuse is involved. The committee felt that there were a number of problems. It appears that, if the financial eligibility test for civil legal aid cases involving domestic abuse is removed for pursuers, it would contravene article 6 of the European convention on human rights and the principle of equality of arms. Much of the evidence to the committee suggested that removing that test for pursuers would create an obligation to remove it for defenders, too.
Rhoda Grant stressed that section 2 would not create an automatic right to legal aid for pursuers of civil protection orders, as pursuers would still have to show that they had a legal basis for the case in question, and that the case was reasonable. Despite her assurances, the committee came to the conclusion that section 2 would not represent equality of arms. Consequently, it would contradict the approach of the Scottish Legal Aid Board, which is to provide said equality. The committee is not persuaded that arguments contrary to that have any substantial merit.
With regard to section 2, at a fundamental level, it was argued whether the removal of the means test would represent an efficient use of public expenditure in the current climate. Concerns were also raised about the pressure on the civil legal aid budget.
Victims of domestic abuse deserve quick, robust and effective legal protection and access to justice, either through the criminal law or through civil remedies. The committee recognises that, in some cases, there must be adequate access to legal aid for that to be provided.
The committee agreed with various witnesses that singling out domestic abuse cases as requiring special treatment compared with other family law cases could be problematic. The committee shared the concerns of witnesses in that respect and, in the light of those concerns, we made the decision not to support the progression of section 2 into statute.
I will move on to the current failure to provide a robust response to breached orders. Section 3 makes it a criminal offence, with powers of arrest, to breach an interdict in domestic abuse cases. That new criminal offence will be punishable on summary conviction by imprisonment for a term not exceeding six months or by a fine not exceeding the statutory minimum. Section 3 was generally welcomed, and it is common sense. It will give victims the additional protection that is necessary and send out a strong message that Scotland is taking robust action to address the problem of domestic abuse.
In many cases, the granting of an order will be sufficient to deter offending behaviour, but we require to reassure ourselves that we are doing everything possible and that the powers of the courts are adequate. The low uptake rate in relation to breach of interdict cases suggests that the current measures are not adequate. In the words of the Crown Office:
“At times, the current process can seem a bit toothless.”—[Official Report, Justice Committee, 26 October 2010; c 3643.]
The committee therefore fully supports a criminal sanction for breach of a domestic abuse interdict being put in place to give victims proper protection. The committee is of the opinion that, when that measure is implemented, the criminal standard of proof, together with corroboration, must apply.
The final substantial section of the bill, section 4, defines in statute what constitutes domestic abuse. Currently, no statutory or common-law definition exists. The member in charge, Rhoda Grant, has highlighted the difficulties that can be caused by that. From the evidence, it was quickly apparent that the proposal had sparked a range of views. We look forward to the discussions that will take place at stage 2 and, we hope, a reconciliation of the problem.
14:18
The Justice Committee met on four occasions to consider the bill and to take oral evidence from witnesses, who included representatives of several women’s aid organisations, the Law Society of Scotland, the Association of Chief Police Officers in Scotland, the Crown Office, various legal representatives, the Scottish Government and Rhoda Grant MSP. I also visited the domestic abuse court in Glasgow. I am grateful to Sheriff Raeburn for taking the time to discuss with me the work that the court undertakes. I thank all those who gave evidence to the committee and congratulate them on the quality of that evidence. At this juncture, I also thank members of the clerking team, especially Anne Peat, for all their work on the bill.
With regard to access to justice, the bill inserts a new section in the Protection from Harassment Act 1997 to remove the requirement to show a course of conduct before a non-harassment order is granted in civil proceedings involving domestic abuse. That will bring civil provisions into line with criminal provisions and remove the requirement for a victim to go through a period of repeated abuse before being able to access an order. Evidence received by the committee showed wide support for the proposal.
There was some debate in the committee about the meaning of the word “harassment” and whether it implied that the conduct would have to occur on more than one occasion. After discussion, the committee came to the conclusion that the conduct would not have to take place on more than one occasion—an opinion shared by the minister, who declared that he was “reasonably satisfied” after considering the matter at length.
While agreement on the new section was reached without much difficulty, section 2 was a bit more problematical. It seeks to amend the Legal Aid (Scotland) Act 1986 to make legal aid available without means testing or the levying of a contribution in respect of all applications for an interdict with a power of arrest or for a non-harassment order, where domestic abuse is involved. The committee felt that there were a number of problems. It appears that, if the financial eligibility test for civil legal aid cases involving domestic abuse is removed for pursuers, it would contravene article 6 of the European convention on human rights and the principle of equality of arms. Much of the evidence to the committee suggested that removing that test for pursuers would create an obligation to remove it for defenders, too.
Rhoda Grant stressed that section 2 would not create an automatic right to legal aid for pursuers of civil protection orders, as pursuers would still have to show that they had a legal basis for the case in question, and that the case was reasonable. Despite her assurances, the committee came to the conclusion that section 2 would not represent equality of arms. Consequently, it would contradict the approach of the Scottish Legal Aid Board, which is to provide said equality. The committee is not persuaded that arguments contrary to that have any substantial merit.
With regard to section 2, at a fundamental level, it was argued whether the removal of the means test would represent an efficient use of public expenditure in the current climate. Concerns were also raised about the pressure on the civil legal aid budget.
Victims of domestic abuse deserve quick, robust and effective legal protection and access to justice, either through the criminal law or through civil remedies. The committee recognises that, in some cases, there must be adequate access to legal aid for that to be provided.
The committee agreed with various witnesses that singling out domestic abuse cases as requiring special treatment compared with other family law cases could be problematic. The committee shared the concerns of witnesses in that respect and, in the light of those concerns, we made the decision not to support the progression of section 2 into statute.
I will move on to the current failure to provide a robust response to breached orders. Section 3 makes it a criminal offence, with powers of arrest, to breach an interdict in domestic abuse cases. That new criminal offence will be punishable on summary conviction by imprisonment for a term not exceeding six months or by a fine not exceeding the statutory minimum. Section 3 was generally welcomed, and it is common sense. It will give victims the additional protection that is necessary and send out a strong message that Scotland is taking robust action to address the problem of domestic abuse.
In many cases, the granting of an order will be sufficient to deter offending behaviour, but we require to reassure ourselves that we are doing everything possible and that the powers of the courts are adequate. The low uptake rate in relation to breach of interdict cases suggests that the current measures are not adequate. In the words of the Crown Office:
“At times, the current process can seem a bit toothless.”—[Official Report, Justice Committee, 26 October 2010; c 3643.]
The committee therefore fully supports a criminal sanction for breach of a domestic abuse interdict being put in place to give victims proper protection. The committee is of the opinion that, when that measure is implemented, the criminal standard of proof, together with corroboration, must apply.
The final substantial section of the bill, section 4, defines in statute what constitutes domestic abuse. Currently, no statutory or common-law definition exists. The member in charge, Rhoda Grant, has highlighted the difficulties that can be caused by that. From the evidence, it was quickly apparent that the proposal had sparked a range of views. We look forward to the discussions that will take place at stage 2 and, we hope, a reconciliation of the problem.
14:18
In the same item of business
The Presiding Officer (Alex Fergusson)
NPA
The next item of business is a debate on motion S3M-7719, in the name of Rhoda Grant, on the Domestic Abuse (Scotland) Bill. The debate is oversubscribed. If...
Rhoda Grant (Highlands and Islands) (Lab)
Lab
It gives me great pleasure to speak to the motion that asks the Parliament to support the general principles of my bill, the Domestic Abuse (Scotland) Bill. ...
Robert Brown (Glasgow) (LD)
LD
As the member rightly points out, this is a controversial area. Perhaps the way to tackle it would be to deal with the practical issues that relate to the Sc...
Rhoda Grant
Lab
I do not believe that what I propose would unbalance the legal aid system. However, I take on board the member’s comments. I have been in talks with the mini...
Bill Aitken (Glasgow) (Con)
Con
An evaluation of all Scottish civil protection orders was carried out in 2003 and identified problems, which fell into two main categories: access to justice...
The Minister for Community Safety (Fergus Ewing)
SNP
I congratulate Rhoda Grant on introducing the bill, and I should perhaps also congratulate Maureen Macmillan on what appears to have been an extremely effect...
Richard Baker (North East Scotland) (Lab)
Lab
I commend Rhoda Grant for introducing the bill. There is no doubt that rates of domestic abuse in Scotland remain unacceptably high and that further action n...
John Lamont (Roxburgh and Berwickshire) (Con)
Con
Like others, I pay tribute to Rhoda Grant for bringing this important bill before us. Of course, we would all rather that we did not have to debate how to ta...
Robert Brown (Glasgow) (LD)
LD
I, too, congratulate Rhoda Grant on taking the bill successfully through to stage 1. Doing so takes considerable work and skill, to say nothing of persistenc...
Stewart Maxwell (West of Scotland) (SNP)
SNP
Like other members, I begin by congratulating Rhoda Grant on getting her bill to stage 1—that is no mean feat—and by thanking the clerking team and the witne...
The Presiding Officer
NPA
You must close, please.
Stewart Maxwell
SNP
Other matters of family law are equally important, so I do not support section 2.14:38
Cathie Craigie (Cumbernauld and Kilsyth) (Lab)
Lab
Like every other member who has spoken in the debate, I want to pay tribute to my colleague Rhoda Grant for her efforts in bringing her bill to the Parliamen...
The Presiding Officer
NPA
I must stop you there, I am afraid. I am sorry to have to do so, but as you said, I am somewhat constrained in my actions.14:42
Nigel Don (North East Scotland) (SNP)
SNP
I start by apologising for arriving a few minutes late; that has been the order of my day.I congratulate Rhoda Grant on introducing this very important bill....
Bill Butler (Glasgow Anniesland) (Lab)
Lab
I rise to support the motion in the name of my Labour colleague, Rhoda Grant. I first congratulate the member on bringing to Parliament a bill that, if enact...
The Presiding Officer
NPA
We come to closing speeches, but members still have only four minutes. I call Mike Pringle to be followed by Bill Aitken.14:50
Mike Pringle (Edinburgh South) (LD)
LD
Like many other members, I congratulate Rhoda Grant on introducing the Domestic Abuse (Scotland) Bill. Any bill requires a huge amount of work. Scotland has ...
The Presiding Officer
NPA
I apologise. I was misinformed that Mr Aitken would be closing for the Conservatives. It will, in fact, be John Lamont—although you still have only four minu...
John Lamont
Con
Thank you, Presiding Officer.This has been a very useful debate. It has given us the opportunity to raise an important issue while highlighting some of the t...
James Kelly (Glasgow Rutherglen) (Lab)
Lab
Like others, I pay tribute to Rhoda Grant for the amount of work that she has put in while getting the bill to this stage and for the work that she has done ...
Fergus Ewing
SNP
This has been a useful debate, and we can now focus on the issues for discussion at stage 2.The first of the two contentious issues relates to costs. It is r...
Rhoda Grant
Lab
I thank everyone who has spoken in the debate. It has been a constructive debate and I have found it to be very helpful. Members, including Cathie Craigie, s...