Hansard

This is a simple bill that raises quite complex problems—problems that the Justice Committee has not found easy. As we heard from the cabinet secretary, the bill does three things, each of which is designed to sharpen the effectiveness of the tools that we have to combat domestic abuse—and combat it we must. Every year, Police Scotland is called out to something in the region of 60,000 incidents of domestic abuse. That is 5,000 every month and nearly 1,200 every week. Each incident consumes, on average, nine hours of police time. The social costs are massive, to say nothing of the horrific impact on the victims of crime.

Let me say a word about the three new tools that the bill provides for, the first of which is the domestic abuse protection notice or DAPN. A DAPN enables the police to impose requirements on a person when the police have reasonable grounds to believe that the person is engaged in abusive behaviour. Such a notice is said to be an emergency measure. A breach of its conditions is a criminal offence, and its effects can be severe—forcing a person to leave their home and, if necessary, preventing them from approaching or contacting their family.

The second tool—the domestic abuse protection order or DAPO—is imposed not by the police but by a court of law. Wherever a DAPN is issued, the police must apply to the court for a domestic abuse protection order on the very first court day after the notice is issued. The hearing must be held and concluded in court on that day.

A DAPO may impose any condition on a person that may be imposed by a DAPN but, unlike the notice, the order may remain in force for up to two months, extendable to three months on a further application to the court. A breach of any condition that is imposed by a DAPO is a criminal offence. It needs to be understood that the effects of a DAPO on a person may be severe, excluding the person from their home and depriving them of contact with their family.

The third tool relates to housing. The bill gives social landlords a new power to evict a tenant where the tenant has engaged in abusive behaviour. That new power will sit alongside other powers that are already contained in Scots law, for example in the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and the Housing (Scotland) Act 2001.

The Justice Committee took evidence on the bill in December and this month. As well as hearing from the bill team and the cabinet secretary, we heard from stakeholders such as Scottish Women’s Aid and the Scottish Women’s Rights Centre, from the Law Society of Scotland and academics, from Police Scotland and from housing experts such as the Chartered Institute of Housing in Scotland and Homeless Action Scotland. I thank all the witnesses who helped the committee with our scrutiny. I again thank our tireless clerks and the Scottish Parliament information centre for all their work in supporting the committee through a fast-paced inquiry. I also thank the Government for its response to our stage 1 report, which was received earlier this week.

Our report focuses on two concerns, the first of which is whether the new powers that the bill contains are necessary and how they will fit alongside the plethora of other powers that the criminal justice system already has for dealing with family disputes and domestic abuse. The second concern is whether the new powers are compatible with Scotland’s human rights obligations.

The committee had no hesitation in supporting the policy intentions that underpin the bill. The committee supports the underlying policy intentions whole-heartedly and unanimously. However, good intentions, while they are a necessary ingredient of good law, do not of themselves guarantee that the law that we make is fit for purpose. The committee was anxious to ensure that the powers conferred by the bill are capable of being operated and implemented effectively.

The committee’s anxieties in that regard were amplified when we took evidence from Police Scotland. Detective Chief Superintendent Samantha McCluskey told us that she had a variety of doubts and puzzles about how the new powers contained in the bill, in particular the power to issue a domestic abuse protection notice, will work in practice. What is the evidential threshold that must be crossed before a notice is imposed? What should the police do in the event that there is not only an accusation of domestic abuse but a counter-accusation?

As Detective Chief Superintendent McCluskey said, that situation is

“very challenging for officers on the ground.”—[Official Report, Justice Committee, 22 December 2020; c 29.]

How should the conditions that are imposed under a DAPN sit in relation to other court-imposed orders or restrictions such as bail conditions? Could a failure to issue a DAPN open the police to potential liability in the event that subsequent abuse occurs? Whereas the police have become used to working in a multi-agency way, in partnership with others such as social workers, it is not obvious in cases of domestic abuse how issuing a DAPN on a person can be undertaken other than by the police alone. In all those operational respects, DCS McCluskey told us, clarity is needed. She said that it would be necessary to

“build a bit of confidence among police officers, who will be expected to make decisions and build the public’s confidence in our response”.—[Official Report, Justice Committee, 22 December 2020; c 31.]

The committee drew attention to those operational challenges in our conclusions and recommendations, and the cabinet secretary devoted several paragraphs of his response to our report, detailing how the Government, in consultation with Police Scotland, intends to ensure that those challenges are met and overcome. We have just heard from Mr Yousaf that the Government accepts that some of that work will be challenging in practice and will require careful implementation. I welcome both the tone and the content of what the cabinet secretary said on that point.

I will close by saying something about convention rights. It is clear that the powers to issue a DAPN and to make a DAPO interfere directly with human rights—most obviously, with the right to private and family life in article 8 of the European convention on human rights. Like most rights in the convention, that one is of course not absolute, but interferences with it need to meet two key tests: they must be necessary in the public interest and they must be proportionate.

I share the cabinet secretary’s view that, as drafted, the bill is likely to meet both those tests, but a key component of that judgment rests on the fact that both a DAPN and a DAPO are short-term measures. The longer that either is permitted to endure in any particular case, the greater the risk that a court will find a violation of convention rights.

Even this brief overview shows that there is a lot in the bill. Ideally, one would have wanted to be able to scrutinise it at a less frenetic pace, but we are where we are. Although the committee drew attention to the range of issues and concerns that I have outlined in my remarks, it is content to recommend—again, unanimously—that Parliament approve the general principles of the bill at decision time this evening.