The Convener

Agenda item 4 is our opening evidence session on the Domestic Abuse (Scotland) Bill, with the Scottish Government’s bill team. I welcome Phil Lamont, bill team leader; Kevin Philpott and Patrick Down, bill team members; and Catherine Scott from the directorate for legal services.

I refer members to paper 2, which is a note by the clerk, and paper 3, which is a Scottish Parliament information centre briefing. I remind members that the officials are here to explain policy, not to defend it.

I invite questions from members.

Mairi Evans (Angus North and Mearns) (SNP)

I want to raise a few issues today, the first of which concerns non-harassment orders. When we held our inquiry into the Crown Office and Procurator Fiscal Service, we heard direct evidence from victims of domestic abuse. We have also received written evidence on the matter following our call for evidence on the bill. People have requested that non-harassment orders should be not only considered but imposed in all such cases.

What is your response to the evidence that we have received and the request that non-harassment orders be imposed in all cases?

Philip Lamont (Scottish Government)

It might be helpful if I confirm what we are doing in the bill. The bill will change the current general provision on non-harassment orders. At the moment, where any offence involves misconduct towards another person, the court has the ability to impose a non-harassment order to protect that person from the perpetrator. An application by the prosecutor is required; the court at its own hand cannot impose such an order, as it must have the application first.

The bill will change that general provision. If the bill is approved by Parliament, an application by the prosecutor will not be required for the new domestic abuse offence and the existing domestic abuse aggravation that was created last year in the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 and the court will have to consider whether to impose an order.

We are aware that some stakeholders consider that the bill should go further and say that the court should not only consider but impose an order in all situations. We understand where that desire comes from, but we think—given how we have approached the issue in the bill—that the correct approach is to leave discretion with the court, not least because there may be cases involving domestic abuse in which the circumstances are such that, for a variety of reasons, a non-harassment order may not be the right approach. We think that discretion should always lie with the court to understand the facts and circumstances of the case and make the decision. The bill says that the prosecutor no longer has to bring the matter to the court’s attention; the courts can make that decision, because it is a domestic abuse case.

Mairi Evans

The written evidence that was supplied to the committee was concerning because, of 502 cases, only 33 non-harassment orders were issued—Hamilton sheriff court is mentioned. We heard of the experience of victims who had to take the process to the civil courts, which is a much more expensive route. There is concern that very few orders have been issued so far. If the bill does not go any further and it is left to the discretion of the courts, we could still see relatively few non-harassment orders being issued.

Philip Lamont

There is a question about what proportion you would expect in domestic abuse cases; there are arguments about that, and you will probably hear evidence from stakeholders in due course. In the bill, we give what I suggest is a heavy hint to the courts about how to approach non-harassment orders in the context of domestic abuse cases. I accept that that does not go as far as some stakeholders might like on requiring the courts to impose orders, but it moves on from the current position in which the court cannot do anything until the prosecutor applies—that will no longer be the case.

Mairi Evans

In other evidence that we received, Children 1st talked about going a step further to extend non-harassment orders to include children. What is your view on that evidence?

Philip Lamont

I think that that is a reference to the way in which the bill is drafted. The provision that relates to non-harassment orders links back to the existing provision in the Criminal Procedure (Scotland) Act 1995, which refers to a non-harassment order being available where a victim is subject to misconduct. In a case a couple of years ago, a court ordered a non-harassment order for a partner who had been abused and also their children, but that was overturned on appeal because it was found that the court had gone too far in interpreting existing law.

The Domestic Abuse (Scotland) Bill still limits the order to the partner or ex-partner as the direct victim of the abuse. Children 1st and one or two other stakeholders have suggested that, because we have child aggravation in the bill, the policy could go further so that where a domestic abuse offence is proven and a child was involved in that abuse, a non-harassment order should be available for those children. We are happy to consider the views of members and stakeholders during stage 1 scrutiny on whether the provision in that area can go a bit further.

Mairi Evans

We will have to explore that as we go through.

Another point that has been raised is about the training of police forces. In England and Wales, eight out of 22 forces have not charged a single person with the offence, according to a freedom of information request. Nine forces, which are listed in our papers, have made two or fewer charges since the new law came into effect in England and Wales in December 2015. There is a concern that relatively few cases have been taken forward since the introduction of the offence.

What are the panel’s views on that? If the bill progresses and Scottish legislation is passed, how can we ensure that adequate training is in place for all police officers and that there is greater public awareness of the changes?

Philip Lamont

That is a fair point. I do not want to speak for Police Scotland, which I am sure will give evidence in due course and explain its approach to ensuring that officers on the ground are aware of what is contained in the new offence if the bill is approved by Parliament.

We have worked with Police Scotland, among others, in developing the offence, so it is certainly very well aware of the new offence that is contained in the bill. It also assisted us in the development of the financial memorandum that includes estimates for costings for training police officers. If Parliament approves the new offence, we will not rush its introduction.

The reference to England and Wales is to the coercive control offence; I would not want to comment on what has happened down there on that. As far as working with key stakeholders in Scotland is concerned, we would make sure that, as much as possible, Police Scotland is made entirely aware of the timeline such that it can prepare the training of its officers so that those who deal with domestic abuse on the ground are aware of how the new offence works and what new factors they need to look for in its investigation.

The Crown Office and the Lord Advocate will give guidance to Police Scotland about the investigation of such cases, and I am sure that the committee will want to explore that with the Crown Office when it gives evidence.

We are working closely with those partners so that they are aware of and are very clear about what is in the bill as it stands, and we will see how it goes through parliamentary scrutiny. The risk that Mairi Evans raises about what appears to have happened down south is one that we are very well aware of and which we want to avoid as much as possible.

Mairi Evans

A few written submissions mentioned that the law should comply with the Istanbul convention. If the legislation is passed, will it do so?

Philip Lamont

Part of the Istanbul convention contains a provision that requires extraterritorial jurisdiction in relation to certain offences. The convention was agreed a few years ago, so this offence postdates it. If Parliament were to agree to the new offence, there would be a question on whether it should carry extraterritorial jurisdiction. For example, if incidents of domestic abuse take place in this country, but the couple involved travel to another country—perhaps on holiday—could other incidents there also be included, so that a Scottish court could hear a prosecution of the totality of the abuse?

We will be happy to hear in due course the committee’s views on the suggestion that the bill could be extended in that way. Extraterritorial jurisdiction is an exception to the normal approach in criminal law matters, but it currently affects certain offences. The context of the Istanbul convention and the UK Government’s consideration of whether to ratify it are very relevant factors that I am sure the committee will want to consider in due course.

Mairi Evans

Thank you.

Rona Mackay

I want to pick up on part of Mairi Evans’s question about the effect of domestic abuse on children. The offence is restricted to abuse by partners and ex-partners. There have been concerns from a number of children’s charities that the effect on children has perhaps not been sufficiently recognised. The Government has sought to address that by providing that an offence will be considered to be aggravated where it involves a child. Is that strong enough? Does adding an aggravator sufficiently address the effect on children, given that we all know the damage that domestic abuse does to them?

Patrick Down (Scottish Government)

The Scottish Government recognises that growing up in an environment in which domestic abuse takes place can harm children. The aggravation is intended to go some way towards ensuring that children who are either involved in the abuse, towards whom behaviour is directed in the course of it, who are present when the abuse takes place or who saw or heard it are formally recognised by the criminal law.

On how it might go further, it is of course worth remembering that there are criminal offences of child abuse and neglect that will continue to apply whether they occur in the context of someone abusing their partner and those children or someone abusing just the children. I am aware that some of the children’s stakeholders think that there is a need to update or reform the law to reflect what is almost domestic abuse of a child and to create an offence in that regard. On whether that could be included in the bill, our concern is that the definition of abuse that we have come up with is focused on behaviour that is abusive when directed by someone towards their partner or ex-partner. To extend that to the parent-child relationship or the relationship between the partner of a parent and a child without further consultation and without perhaps adjusting the definition to take account of the very different nature of that relationship would not be appropriate and would risk criminalising behaviour that should not be criminal.

Philip Lamont

It is perhaps worth saying that the first of the two previous consultations that the Scottish Government carried out on the issue was on the general principle of having an offence, and one of the questions that we asked was about what relationships should be covered. Although views were offered that we should go beyond the relationship that has ended up in the bill, there was strong support for an offence that relates to partners and ex-partners, because there is such a particular dynamic to that type of abuse. Clearly, that is what we have provided in the bill.

In addition to what Patrick Down said, it is worth drawing the committee’s attention to the statement that the Minister for Childcare and Early Years made at the start of March in Parliament on the child protection improvement programme. One element of that statement was to set out that we will look at the section 12 offence in the Children and Young Persons (Scotland) Act 1937, which children’s stakeholders and others consider needs to be updated to reflect, among other things, our understanding of the modern experience of abuse of a child. That commitment has been given. To pick up on Patrick Down’s point about the difficulties of adapting our bill, there is a process under way for the Scottish Government to look at that area.

Rona Mackay

Given that, would you consider clarifying the policy that you are taking in the bill? You could set out what you have told us here, just to allay some of the concerns of charities that the measure has been put in the bill as an afterthought.

Philip Lamont

I certainly would not suggest that it has been. The aggravation in section 4 is an important provision that specifically tries to acknowledge the harm that domestic abuse can cause to a child. To pick up on Patrick Down’s point, direct abuse of a child can already be prosecuted under different laws. However, the aggravation is a clear statement that, if a perpetrator commits the new offence of domestic abuse and if, in committing that offence, they use a child in some way—by directing behaviour at the child to get at their partner or by committing abuse in such a way that the child is present or is aware that it is taking place—that can be harmful. If the aggravation is proven, the court will be required to consider whether the sentence that would otherwise be imposed should be enhanced. We think that that is an appropriate way of acknowledging the harm that such abuse can do to a child.

Rona Mackay

I totally understand what you are saying. I just wonder whether we could strengthen the wording a wee bit.

The Convener

We have a supplementary on that point from Mary Fee.

Mary Fee

Mr Lamont briefly mentioned the issue that I was going to ask about, which was raised as a concern during our preliminary evidence sessions. It is about coercively using a child in a relationship to cause harm to a partner. Will the bill cover that and will it explicitly state that that is deemed as domestic abuse?

Philip Lamont

Patrick Down might want to pick up on that, but I will mention it briefly without getting into the technicalities of the bill. Section 2 gives a definition of abusive behaviour, which is one of the essential elements of the offence. Under section 2(2)(b), the definition of abusive behaviour includes “behaviour directed at B”—that is, the partner or ex-partner—or

“at a child of B or at another person”.

The inclusion of the words “at a child of B” is an attempt to be clear that we are aware that one of the most common ways that abuse can be perpetrated, if it is not directly at the partner or ex-partner, is through the child or children of that person. Those words appear because, strictly speaking, it could be argued that “another person” covers children. We specifically inserted that phrase to give a clear signal, under the law, of our understanding that one of the most common ways that abuse can be perpetrated is through a third party. We wanted that to be in the bill.

Liam McArthur

I know that the Serious Crime Act 2015 applies more generally. I am also aware that the two consultations that have taken place on the domestic abuse legislation have come to a different view, but I am unclear why that is the case. Is it because, were there to be a broader definition of abuse in a domestic setting that could involve not only children but elder abuse—a coercive or controlling relationship with a parent or a grandparent in a household? Was it considered that, by including such scenarios, the impact of the bill or its ability to strike at instances of abuse of a partner or an ex-partner would somehow be diluted? What was the rationale?

Patrick Down

As you say, the Serious Crime Act 2015 has a wider application and it applies not only to partners and to ex-partners, but to other members of the same family living in the same household. Therefore, it would potentially cover the abuse of a grandparent or even abuse between adult siblings.

We have taken the approach in the bill because, based on stakeholders’ evidence during the two consultations, abuse of partners takes a different form from other types of abuse. Furthermore, our approach keeps the definition of abuse in line with the Scottish Government’s wider definition of domestic abuse.

I think that it is reasonable to say that the types of coercive control that can happen between people who are—or who have been—in an intimate relationship tend to be different from abuse between adult family members.

Liam McArthur

I appreciate that there is a distinction but I am not clear why, in draft legislation that covers both those areas of law—areas that are provided for in law, but which the bill seeks to extend—the opportunity has not been taken to broaden the definition to cover those examples. Those cases may be fewer in number and different in nature; nevertheless, by any definition, they could be described as abuse in a domestic context.

Philip Lamont

I will pick up on Patrick Down’s comments. We followed, to a certain extent, the views that were offered in the consultation. There was relatively strong support—it was not universal—for restricting the bill to partners and to ex-partners. Our approach is to have, in section 2, what we call the list of effects. In the same way that we do not think that that could be adapted easily to the context of the abuse of a child, it would need some work were we to broaden the definition. That is not to say that it would not be possible to do that. However, we are aware that, more generally, the offence is quite novel—I am sure that certain elements of it will be scrutinised closely in the coming weeks. Ministers were keen to focus on the established understanding of domestic abuse in the context of partners and ex-partners.

Liam McArthur

I take what you are saying; I understand your explanation. The consultation responses have clearly steered you and ministers in a particular direction. I suppose that the risk is that there may be those who argue a different case. Age Concern is an obvious example—there may be others—whose voice on the issue is not necessarily as clear. The numbers articulating that position are perhaps not as numerous; nevertheless, on the opportunity that the bill presents, their arguments are pretty compelling. However, they are being set aside at this stage because of the overwhelming numbers that argue for a more targeted approach. That seems to be, at best, a missed opportunity. It possibly also leaves older people who find themselves in a domestic abuse situation at heightened risk because—for understandable reasons—our focus is on partners and ex-partners. While we focus on that, inevitably, we will not focus our attention on other areas.

Philip Lamont

I would not necessarily disagree with anything that you have said. Coming back to the offence being relatively novel, if the bill is passed by Parliament, perhaps part of the task will be to see how it works in practice so that the lessons can be applied to different situations—for example, to different relationships. That will probably cover looking at domestic abuse of children, siblings, elders or other vulnerable people who are living with parents. There are potential lessons to be learned.

As you suggest, we have been guided by the general view from stakeholders to focus on the established definition of domestic abuse; that is why this is an offence of domestic abuse. However, although I do not want to speak for ministers—you will, no doubt, explore the issues with the cabinet secretary in due course—it is not about closing the door in terms of what we are doing in the bill.

Liam McArthur

I want to touch briefly on one of the other distinctions between the Serious Crime Act 2015 and the approach that is being taken in the bill in relation to behaviour that does not cause a partner or ex-partner to suffer “physical or psychological harm”. The Serious Crime Act 2015 requires that such harm was committed. Can you explain the rationale for having a crime in which the harm has not yet been committed? To the layperson, the former would probably seem to be the logical approach.

Patrick Down

Sure. The test in the bill is whether the accused’s behaviour was such that a reasonable person would think it likely to have caused the victim to suffer physical or psychological harm. In a sense, it is an objective test that focuses the court on what the accused did. If the accused’s behaviour was such that it was very likely to have caused the victim to suffer harm, the fact that the victim was especially stoical and unexpectedly was not harmed by the behaviour would not prevent a conviction. Equally, the provision ensures that there is not as much risk of—for want of a better word—re-victimising the victim by forcing them to come to court and explain exactly how their partner’s behaviour had harmed them either physically or psychologically, in order to ensure a conviction. I imagine that, in many cases, the evidence that is led will include such an explanation, but the test ensures that that is not necessary in all cases in order to secure a conviction.

Liam McArthur

Is there a risk either that that sets the bar too low or that a case can be brought as part of an exercise in exacting some kind of retribution within a relationship that is not functioning as it should, and in which the abuse is not solely in one direction? It strikes me as being a slightly unusual provision for a situation in which demonstrable harm has not been caused.

Patrick Down

It might be helpful if I run through exactly how the offence can be committed. Three tests have to be met. The first test is that

“the person (‘A’) engages in a course of behaviour which is abusive of A’s partner or ex-partner (‘B’)”.

The second test is that the court is satisfied that the course of behaviour is

“likely to cause B to suffer physical or psychological harm”.

The third test is that the accused must either “intend” to cause that harm or be “reckless” as to whether harm is likely to result.

There is the possible defence that the accused’s behaviour was, in the particular circumstances of the case, “reasonable”. You mentioned a problem with counterallegations—of somebody who is accused of abuse saying that they, too, were being abused. I do not deny that that is a possibility. If you were to speak to the police or prosecutors, they would say that counterallegations are a feature of domestic abuse cases, as things stand; that is not a situation with which the police and prosecutors are unfamiliar. They will have ways of dealing with that—for identifying where there is merit in allegations and where allegations are being made maliciously and there is no good evidence that the person is a victim of abuse.

John Finnie

I want to pick up on that point. There will always be challenges around definitions. In relation to the defence of behaviour that was reasonable in all the circumstances, Scottish Women’s Aid’s position is that that might risk providing legal cover for coercive behaviour under the guise of reasonableness. What are your thoughts on that challenge? I know that everything is about interpretation, but this seems to be at the nub of it.

Patrick Down

As you suggest, exact definitions of, and meanings for, individual words is a tough area. We need to ensure that behaviour that should not be classed as criminal is not inadvertently criminalised, which is part of the purpose of the reasonableness defence. There will always be cases in which a person who is actually abusing somebody will try to make the case that their behaviour was reasonable, so it will be for prosecutors to disprove that and to show that the claim that the accused’s behaviour was reasonable is not valid.

John Finnie

The committee recently did some work on sexual abuse, during which we did private interviews with survivors, who gave quite harrowing testimony. I and others who interviewed one particular gentleman were struck that some of the things that we found pretty horrendous were normal for that person, so the individual did not see them as being abusive. Are you confident that such matters will be picked up through the process, as it is laid out? I know that that is a big ask, but I am asking anyway.

Patrick Down

In some ways, the biggest barrier is a victim not recognising that what they are suffering is not normal. A public awareness effort might therefore be required if and when the new offence comes into law.

Police and prosecutors being aware is perhaps less of a problem; they will be much more aware that abusive behaviour that a victim might have been conditioned to see as normal will not seem to be normal to everyone else. The biggest barrier will be in encouraging initial reporting to the police so that abuse can be identified and prosecuted.

Philip Lamont

One of the legislation’s policy goals is to reflect in the offence our modern understanding of what constitutes domestic abuse. At the moment, incidents of domestic abuse have to be prosecuted individually. They can be prosecuted at the same time, but are separate charges under general legislation.

We have included in section 2 the relevant effects that behaviour can have on the partner or ex-partner. One of the benefits of that is that it will help people to understand that they are being abused. I know that people will probably not study the words on the page, but organisations such as Scottish Women’s Aid and others can help to show them that the criminal law reflects the fact that they are being abused in a way that they may not, at the moment, recognise as abuse. They might even recognise it as abuse, but think that the justice system will not respond appropriately. That is one of the aims of trying to capture within the offence the totality of what constitutes domestic abuse.

John Finnie

Police Scotland has done tremendous work with serial offenders and abusers who have abused a series of partners over prolonged periods. Could any element of the bill, particularly with regard to coercive behaviour, have a retrospective application?

Patrick Down

The short answer is no. As a general principle, we cannot criminalise behaviour that was not criminal when it took place. Behaviour that occurred before the offence comes into law would have to be prosecuted using the law that was in force at the time. You might want to ask the prosecutors, if you take evidence from them later, whether they think that there will be any scope to label behaviour that would clearly be criminal under any law using this single offence. I think, however, that they would be reluctant to do so. The law will always be the law that was in force when the behaviour is alleged to have taken place.

John Finnie

Thank you.

Stewart Stevenson

To follow up on John Finnie’s point about the definition of normal behaviour, there is perhaps a distinction to be made between what is normal and what is normalised. In other words, someone outside a relationship might regard the behaviour in it as being overwhelmingly abnormal, but the nature of the relationship could mean that that behaviour has become normalised and seems to be normal within it. Would the process of normalising behaviour that people outside the relationship would regard as abnormal be, in and of itself, potential evidence of the relationship’s abusive nature? That is a bit Sir Humphrey-ish, but I hope that you get my point.

Philip Lamont

Raising awareness is important not only among people who might be affected by abuse, but among people—family, friends and so on—who may see, as Stewart Stevenson has suggested, something that the person who is at the centre of the relationship cannot see.

If the offence is included in the bill, we think that the question of what domestic abuse is will become much clearer in criminal law, which should be an advantage. At present, of course, there is nothing to prevent a person from going to the authorities to raise concerns; it would be for the police to respond appropriately and look into the matter. I do not disagree with what Stewart Stevenson said.

Stewart Stevenson

To close off my point, is the policy intention of the bill partly to empower those who observe a relationship from outside to intervene in some way in order to protect a person in the relationship who does not realise the extent to which they are being abused?

Philip Lamont

The bill does not do that explicitly, but it seeks to raise awareness of what domestic abuse is, which we hope will be beneficial.

Stewart Stevenson

To be clear, I was asking whether that was the policy intention.

Philip Lamont

It is certainly the policy intention for potential victims themselves and for those who may know potential victims.

The Convener

The Law Society of Scotland, the Glasgow Bar Association, the Scottish Police Federation and Andrew Tickell, who is an academic, have all expressed uncertainty about the bill. One reason for that concern is what they perceive to be a lack of evidence that there is a gap in the law that requires to be closed. Can you comment on that?

Patrick Down

Sure. The background is that, in a speech in 2014, the then Solicitor General for Scotland highlighted concerns about what she saw as a gap in the law in relation to domestic abuse, and in the ability of prosecutors to prosecute the type of abuse that may involve long-term coercive conduct.

As a result, in 2015 the Scottish Government consulted stakeholders on whether they thought that there was a gap in the law. A couple of messages came back from that consultation. First, the responses reflected the Solicitor General’s concerns about the problems of prosecuting long-term coercive conduct and domestic abuse, given the current law’s focus on individual incidents, such as incidents of assault or of threatening and abusive behaviour. Secondly, there was concern that, although it is reasonably easy to prosecute physical assault or overtly threatening behaviour using the existing law, it is much more difficult to prosecute the kind of insidious, coercive and controlling behaviour that constitutes psychological abuse. It was suggested that only a change in the law would make it practical to do that, because it could not easily be done using the existing law.

The Convener

That is more or less spelling it out.

Patrick Down

Yes.

The Convener

In relation to the accused’s state of mind, the bill provides—as some members have mentioned—that the offence may be committed intentionally or recklessly. Can you expand on what that would mean in practice?

Patrick Down

The reason why we included a mens rea element—to use the legal term—of intention or recklessness is to some extent twofold. First, it may be difficult to prove that an accused person intended to cause harm to the other person. The accused will always be able to turn round and say that they did not mean to harm anyone, and it might be very difficult to disprove that claim.

Secondly, if a reasonable person would think that such harm was always going to be the likely result of the accused’s behaviour, it is almost irrelevant whether or not they intended to cause that harm. If they knew, or ought to have known, that such harm was likely, it is reasonable that the criminal law should apply regardless of whether that was actually the intent behind their behaviour. I suspect that a lot of perpetrators of that kind of long-term abuse might, in their own minds, see their behaviour as being perfectly reasonable.

The Convener

It is good to get that on the record.

I have one last question. Section 8 provides for a maximum custodial sentence of 12 months under summary procedure and 14 years under solemn procedure. Will that apply to coercive behaviour that does not have a physical abuse element?

Philip Lamont

Yes. The maximum penalty will be 14 years if a case is prosecuted in the High Court—obviously imposing such a penalty would need to be done in the highest level of court. The penalty could be for an offence in which there was no physical element to the course of conduct or behaviour. It would be for the court to determine, but that is what we had in mind when setting the maximum penalty at 14 years. That is an increase on what we consulted on, which was a maximum of 10 years. There were a number of views on that. Some people suggested that it was about right, some suggested that it should be lowered, and quite a few suggested that it should be increased.

What we have in mind is a course of conduct that might have gone on for years in a relationship. It might include physical abuse, psychological abuse or a mix of the two. Where, in effect, someone has been living in that situation for year upon year, we want to ensure that the court has sufficient power to sentence appropriately, which is why we determined that the maximum penalty should be 14 years.

The maximum penalty is reserved for the most serious offences. In answer to your question, that could include an offence in which the course of conduct is entirely one of psychological abuse. I would add that it is sometimes quite difficult to distinguish between physical and psychological abuse; there can on occasion be quite a lot of overlap.

The Convener

Stewart Stevenson has a supplementary question.

Stewart Stevenson

It is a tiny wee question. I take it that if a case does not start as a solemn case and it becomes clear as the facts emerge that a sentence of one year will not be sufficient, sentencing can be referred upwards.

Philip Lamont

It could not, in the scenario that you suggest. The summary court sits without a jury, so cases cannot be remitted upwards. That can happen only if a case starts in a solemn sheriff court. Those courts’ jurisdictional limit is a maximum penalty of five years. If, in a case that starts in front of a jury in a sheriff court, a person is convicted and the sheriff considers that enhanced sentencing is needed, the sheriff can remit the case up to the High Court. However, if a case begins in summary court, that is where it ends.

Stewart Stevenson

So, there is a substantial obligation on prosecutors to ensure that a case goes in at the right level.

Philip Lamont

Absolutely.

Liam McArthur

You explained well the rationale for why you have got to where you have got to with the 14-year maximum. I do not want to appear to draw too many simplistic parallels with the Serious Crime Act 2015, but I have been told that the maximum custodial sentence in that act is five years, which seems to be quite a significant discrepancy. Is that because the 2015 act is not picking up on the kind of pattern of behaviour over multiple years that you have talked about?

Philip Lamont

I would not want to say why the limit was set at five years down south. Patrick Down will keep me right, but I think that the offence in the 2015 act is one of only coercive control; it does not include physical elements. In the answer that I gave I said that, in our offence, the course of conduct could be one of entirely psychological abuse or psychological harm, although perhaps a more realistic example might include a mix of the two, in which very serious violent abuse and psychological abuse are wrapped up together in one course of conduct. We came to the view that a maximum five-year sentence was insufficient. We consulted on 10 years, but we determined to increase the maximum to 14 years in the bill as introduced.

Liam McArthur

I take your point about the ways in which the types of abuse can become conflated, but it is not beyond the realms of possibility that in a case that involves only psychological abuse the penalty could be up around the maximum, depending on the specific circumstances.

Philip Lamont

Obviously, the sentence is for the court to decide in any case. We want to ensure that the court has what we consider to be appropriate power to sentence; that is where the 14-years maximum came from.

The Convener

That concludes our questioning. I thank the bill team for providing evidence that has informed the committee and helped us to understand the bill.

The next meeting will take place on Tuesday 16 May.

The Presiding Officer (Ken Macintosh)

We are perhaps slightly ahead of where people would expect us to be. I am glad that virtually all the members whom we expected are here for the next debate.

Our next item of business is a debate on motion S5M-07905, in the name of Michael Matheson, on stage 1 of the Domestic Abuse (Scotland) Bill. I call Michael Matheson to speak to and move the motion.

The Cabinet Secretary for Justice (Michael Matheson)

Everyone in the chamber is aware that domestic abuse blights the lives of too many people in Scotland. Domestic abuse might not be obvious, because it is largely hidden and often occurs behind closed doors and out of sight, but we know that it is widespread.

The number of incidents is truly shocking. Even if they do not know it, everyone in the chamber is likely to have family or friends who have been abused or are being abused by a partner or ex-partner. In 2015-16, almost 60,000 domestic abuse incidents were reported to the police, but that is likely to be a significant underestimation of the true extent of domestic abuse. In 2014-15, the Scottish crime and justice survey found that only a fifth of people who had experienced partner abuse in the previous 12 months said that the police knew about the most recent incident. Fourteen per cent of adults have experienced partner abuse since the age of 16.

Anyone can be a victim of domestic abuse. It is most definitely not restricted to one gender or class, or to rural or urban areas. However, we know that women are disproportionately likely to be victims of domestic abuse: twice as many women as men report having experienced partner abuse in the previous 12 months, and nearly 80 per cent of all incidents of domestic abuse that were recorded by the police in 2015-16 had a female victim and a male perpetrator.

We, as a Parliament and a society, have moved a long way in our understanding of domestic abuse since the Scottish Parliament was established in 1999. I was a founding member of the Justice and Home Affairs Committee in this Parliament, and I well remember key stakeholders and groups such as Scottish Women’s Aid coming to the committee to seek to explain why steps were needed to tackle domestic abuse. Back then, it was sadly the case that too many people in our society saw domestic abuse solely in terms of physical violence.

Crucially, there was also an attitude in some parts of society that domestic abuse was a private matter that was no business of the police or anyone else. Time has moved on and attitudes have—thankfully—evolved. Our modern understanding of domestic abuse, which has been shaped by the experience of women who have been affected and the groups that help them, is now such that we know that domestic abuse is commonly experienced as a pattern of abusive behaviour that is sustained over time. It can take the form of physical violence or even overt threats, but it can also take a form of the abuser behaving in a highly controlling, coercive and abusive way over a long period of time. The Domestic Abuse (Scotland) Bill is the Scottish Government’s and Scottish Parliament’s next important step in the fight to address the scourge that is domestic abuse.

Parliament has already taken action to reform the criminal law concerning domestic abuse. In 2010, the Scottish Government ensured that what might be described as the traditionally understood form of domestic abuse, which was prosecuted using the common law offence of breach of the peace, could continue to be prosecuted using a new statutory offence of threatening and abusive behaviour. That followed a court judgment that called into question the scope of the offence of breach of the peace.

The Scottish Parliament has also legislated to create an offence of stalking, which can, on occasion, be relevant in cases of domestic abuse. However, notwithstanding those reforms, it is clear that the criminal law does not fully reflect what domestic abuse is in all its forms, as our modern understanding reveals.

As many members will know, the then Solicitor General for Scotland, Lesley Thomson QC, called on the Scottish Parliament in 2014 to consider the creation of a specific offence of domestic abuse. She said that, in her experience of prosecuting domestic abuse, the existing criminal law did not always reflect the experience of victims of long-term domestic abuse. The explanation that was given for that was that because the law focused on individual instances of, for example, threatening behaviour or assault, it did not reflect the fact that domestic abuse is commonly experienced as a pattern of abusive behaviour that is sustained over time.

The kind of cases that stakeholders have highlighted as being difficult to prosecute using the existing law are those in which an abuser behaves in a highly controlling, manipulative and abusive way towards their partner over a long period of time. Examples of what abusers may do to humiliate their partners are horrendous: forcing them to eat food off the floor, controlling access to the toilet or repeatedly putting them down or telling them that they are worthless.

Abusers can also try to control every aspect of their partner’s life—for example, preventing them from attending work or college; stopping them making contact with their family and friends; giving them no or limited access to money; and checking or controlling their use of their phone and of social media. Those actions are often not accompanied by physical violence or overt threats, because the abuser knows that the victim may be in so much fear of their partner that they do not need to take physical or threatening action in order to exert control.

That behaviour can be very difficult to prosecute under our existing law. Even where a prosecution is possible, a conviction—for example, for an incident of threatening or abusive behaviour—may leave the victim feeling that the court process and the sentence that was imposed did not reflect the reality of the abuse that they had experienced.

The centrepiece of the bill is the new offence of domestic abuse. The new offence modernises the criminal law to reflect our understanding of what domestic abuse is by providing for a specific offence that is intended to be comprehensive, so that abuse in its totality can be prosecuted as a single offence. It is a course-of-conduct offence that enables the entirety of the perpetrator’s abusive behaviour to be included in a single charge. That will allow the court to consider the totality of the abuse that is alleged to have taken place. It will enable the court to consider behaviour that would be criminal under the existing law, such as assault and threats, as well as psychological abuse and coercive and controlling behaviour, which can be difficult to prosecute under our existing law.

Liam McArthur (Orkney Islands) (LD)

I am grateful to the cabinet secretary for the way in which he has set out the proposition that is under scrutiny. He will be aware that the Justice Committee heard evidence that the evidential bar for prosecuting criminal offences is potentially set too low. I think that the Scottish Government’s response to the committee’s report is very helpful in setting out why that is not the case, but perhaps the cabinet secretary could read that explanation into the record for the benefit of Parliament.

Michael Matheson

I will seek to do so. As we said in our response to the committee’s report, we believe that we have set the bar at the right level. Our response reinforces the oral evidence that I gave to the committee, in which I said that we believe that the qualifying criteria for engaging the offence have been set at the right level, and that the courts will interpret that bar appropriately.

As well as criminalising specific behaviour such as violent behaviour, the new offence will criminalise other types of behaviour by reference to its effect on the partner, or ex-partner. For example, the offence seeks to cover behaviour including unreasonably restricting access to money, by reference to the fact that that might make the partner feel dependent on, or subordinate to, the perpetrator.

Children, too, are harmed by domestic abuse. When a parent is abused, that always brings harm to the child, either directly, as a result of the child witnessing the abuse, or indirectly, with the child being affected by the effect of the abuse on their parent. In line with the long-established definition of domestic abuse, the bill is about creating a new offence of domestic abuse between partners or ex-partners. The harm that is caused to children will be acknowledged through the new statutory aggravation. When children are involved, that can be reflected by the court when the perpetrator is sentenced.

I welcome the Justice Committee’s stage 1 report, which supports the general principles of the bill. I thank the organisations and, in particular, the individuals who contributed to it—not least, those who shared with the committee their personal experiences of suffering domestic abuse in order to assist the committee with its consideration of the bill. The committee has raised a number of important issues, including how we might expand the scope of the power to impose non-harassment orders in order to protect the children of the victim; the proposal to create emergency banning orders that would ban the perpetrator from the victim’s home; and issues concerning the interaction between criminal domestic abuse cases and the civil child-contact case process.

The Scottish Government has responded to the stage 1 report’s recommendations, and I will listen carefully to the views that are offered on those issues in the debate ahead of stage 2.

Kezia Dugdale (Lothian) (Lab)

I welcome the cabinet secretary’s thanking of all the groups that have contributed to the bill. Scottish Women’s Aid and Children 1st have both called for the inclusion in the bill of a parallel offence on the impact that domestic abuse has on children. Is the cabinet secretary’s mind still open to that, at this stage?

The Presiding Officer

I ask the cabinet secretary to address that and to draw his remarks to a conclusion.

Michael Matheson

We have responded to the committee by setting out that the approach that we will take will be to reform child welfare legislation, which will allow us to consider creating a specific measure to tackle the effect that domestic abuse has on children. That is a more appropriate avenue for considering the issue. The reason for that is partly that the qualifying criteria that are set out in the bill in relation to adults would be very difficult to apply to children. That is why it is important that we take a different approach to dealing with children, in this context. We must ensure that not only the approach in the bill but the approach for children that we take in the future can work.

The creation of a new offence of domestic abuse will not on its own end domestic abuse, but it is a groundbreaking approach that will put Scotland at the forefront of efforts to tackle the scourge of psychological abuse and coercive control. The new offence will provide greater clarity for victims and send a clear signal that what their partners do to them is not only wrong but criminal. It will improve the ability of the police and our prosecutors to intervene in cases, and it will change societal attitudes about what domestic abuse is. Domestic abuse is not only physical violence but psychological abuse, whereby someone exerts total control over a partner’s every movement and action, thereby forcing them to live in constant fear.

For too long, the attitude has been allowed to linger that domestic abuse is a private matter that is no business of the criminal law. The bill makes it crystal clear that those days are long gone.

I move,

That the Parliament agrees to the general principles of the Domestic Abuse (Scotland) Bill.

Margaret Mitchell (Central Scotland) (Con)

I am pleased to speak on behalf of the Justice Committee in this important debate.

The committee took evidence on the bill over six meetings, earlier this year. We held private meetings with survivors of psychological domestic abuse from different parts of Scotland, and we received written evidence from more than 40 organisations and individuals.

The new domestic abuse offence in the bill is intended to address a gap in the law: the lack of a criminal remedy when domestic abuse is primarily psychological in nature, in a relationship in which one party seeks to control and dominate the other. The committee heard that the current law is not well equipped to handle situations in which abuse consists of a course of behaviour, as opposed to an isolated incident. That means that the current law does not effectively reflect the lived experience of many victims.

The private meetings that committee members had with survivors of psychological domestic abuse helped us immensely to better understand the nature of such abuse and the trauma that it causes. It was sobering to reflect that some of the appalling conduct that victims described cannot currently be prosecuted.

Police Scotland, the Crown Office and Procurator Fiscal Service and many third sector organisations who gave evidence were all of the view that reform is overdue. The committee agrees.

However, a minority of witnesses, including legal academics and the Scottish Police Federation, expressed significant concern about the new offence. They said that it is not easy to legislate in the realm of human relationships and that there is a risk of inadvertently making bad law, which could result in an individual being charged for behaviour that is not, by any reasonable standards, criminal, or being charged when there is no clear evidence that a crime has been committed.

The committee considered the evidence carefully and took into account the counterarguments from witnesses who disagreed with that view. For example, Detective Chief Superintendent Lesley Boal said that officers were not being called on to do anything especially new, given that they already deal with complex abuse and child welfare cases.

The counterarguments also recognised that aspects of the new offence, as with any new offence, will give rise to questions of interpretation. The committee was persuaded by evidence that emphasised that an understanding of the context of the behaviour is crucial. In some contexts, even the most innocuous-seeming comment might be a chilling threat.

The new offence addresses abuse by partners, but the drafting recognises that perpetrators sometimes use third parties—children, in particular—as a means of control. The bill makes provision for a statutory aggravator for instances of partner abuse in which children are directly involved.

Although that was welcomed, some considered that the bill should have gone further by recognising abuse of a child as a criminal act in its own right. The committee understands those views, but notes the Scottish Government’s response confirming that the bill was never intended to have that wider focus. Instead, the Government has committed to consulting on the issue in the near future.

With regard to implementation, the committee recommends that there be a publicity campaign to draw attention to the new law and to underline that psychological abuse in a relationship is totally unacceptable. The committee also considers that police and prosecutors must set clear policies on how they intend to enforce the new offence and—crucially—those policies must be kept under review in the light of experience.

Furthermore, evidence indicates that the new offence is likely to be relatively resource intensive, especially given that cases can be complex and vulnerable victims and witnesses will almost certainly need support. The committee therefore recommends that the funding of agencies dealing with the new offences be kept under review, too.

Some evidence was led, suggesting that there was an excessive focus on punishment in handling domestic abuse. However, many others, including Social Work Scotland, strongly disagreed with that. As the committee has observed, the punishment for the crime is potentially up to 14 years’ imprisonment, with the possibility of its being imposed on the basis of psychological abuse alone if the court considered that such a move was merited. The committee has asked the Government to expand on its reasons for taking this approach.

The bill’s remaining reforms are mainly procedural or evidential changes to the law on domestic abuse, but they are important to ensure that the justice system supports rather than re-traumatises victims of abuse. One such reform is the proposal to require a court to consider whether a non-harassment order should be made at the end of every domestic abuse criminal case. The committee is supportive of that recommendation, especially as the current law, which places the initiative on the prosecutor, is not resulting in such orders being used when it is appropriate to do so. That said, the committee has taken cognisance of the fact that an NHO does not always offer the victim the protection that was intended, and it has asked the Government to respond to that point.

In addition, some organisations have made a case with regard to the advantages of and the need for so-called emergency barring orders, which would immediately exclude an abuser from a victim’s home. The committee has agreed to take more evidence on that issue at stage 2.

Finally, the issue of civil court decisions not taking cognisance of criminal court convictions was raised, especially in relation to contact with the child of a person who had been the victim of domestic abuse. The committee has noted the issue.

In closing, I want to pay tribute to the courage and eloquence of those victims of abuse who shared their stories with the committee. In so doing, they have, without doubt, helped to underline why this bill has the potential to improve our justice system. The committee therefore recommends that the Parliament approve the general principles of the bill.

Liam Kerr (North East Scotland) (Con)

I echo the cabinet secretary and the convener of the Justice Committee in thanking everyone who gave evidence to the committee as well as the clerks and the Scottish Parliament information centre for all their assistance.

In its current form, the criminal law focuses on discrete incidents of physical violence or threatening behaviour that causes fear or alarm, and it can fail to recognise the lived experience of domestic abuse as a course of conduct over a period of time. The bill seeks to bridge that gap, making it possible inter alia to convict an individual on the basis of a course of conduct that includes psychological abuse.

As the cabinet secretary has made clear, the intention of the bill, if passed, is to improve the justice system’s response to domestic abuse, principally by creating a new offence of engaging in an abusive course of conduct—even if it is entirely non-physical—against a partner or ex-partner, and it will also amend procedural and evidential aspects of criminal law with a view to tipping the balance in favour of domestic abuse victims. Accordingly, I confirm that the Scottish Conservatives support the bill in principle and will vote to agree to its general principles at decision time.

The bill seeks to address a lacuna in the legislative landscape. The committee heard compelling and persuasive evidence from a number of organisations, social workers, the Equality and Human Rights Commission and from abuse survivors. Some of the harrowing conduct that was described to the committee is not currently criminal and therefore cannot be prosecuted, and it is that which the bill seeks to address.

Some areas merit further consideration, and my colleagues will pick up on those throughout the debate. Concerns have been expressed about whether the bill risks setting the bar of criminality too low, which could potentially lead to the wrong cases being prosecuted. Calum Steele of the Scottish Police Federation gave evidence that couples at the time of a relationship breakdown may sometimes be “particularly horrible” to each other but, a few months down the line, the parties may regret getting the criminal justice system involved.

Andrew Tickell of Glasgow Caledonian University law school expressed concerns about overcriminalisation when the law intervenes in family and romantic life. He had particular concerns about the use of the word “distress” to define psychological harm, as it is a novel term in criminal law.

The SPF further expressed disquiet around officers becoming pawns in routine family disagreements, with Calum Steele noting that there is a “fundamental difference” between arresting on the basis of physical evidence and interpreting whether there has been psychological abuse. He said that, at the very least, officers would need training to apply the law. I agree with the point that Liam McArthur made in his intervention that the cabinet secretary’s response to the committee’s stage 1 report is useful in that regard, as it is in a great deal of respects.

I want to flag up an area that the Scottish Government might wish to consider. Courts can sometimes seem stacked against domestic abuse survivors. There is an acceptance that the judicial process for domestic abuse victims is traumatic and that steps should be taken to minimise what they have to relive and, as the committee’s report suggests, to ensure that people are not revictimised by the criminal justice process. The Scottish Government accepts that point in the policy memorandum on the bill.

The issue potentially persists where victims of domestic abuse have to recount their case to multiple sheriffs. Far too often in cases of domestic abuse, there may be a number of issues, for example divorce and/or child residence arrangements, as well as the domestic abuse. Those will be heard in different arenas, with perhaps one sheriff in a civil court hearing evidence during the divorce proceedings and a separate sheriff in a criminal court for the domestic violence. There is also the possibility that multiple sheriffs will deal with different stages of a civil case. According to SPICe,

“At present, a number of sheriffs can be involved in an individual family case. There is no system whereby the same sheriff deals with every stage of the civil case.”

That means that, potentially, victims have to repeatedly relive their ordeal. Domestic violence victims face many barriers to safety and independence, but incomprehensible and/or overcomplex court proceedings should not be one.

Trials of a one family, one judge system to address the issue have been carried out in the US, Australia and New Zealand. In that system, to avoid unnecessary trauma the victim has to recount their experience to only a single judge. In England, there have been trials of an integrated domestic violence court, in which one judge handles the criminal cases related to domestic violence as well as all accompanying civil matters. The single presiding judge is cross-trained to handle all matters—criminal and civil—relating to a family. Arguably, by concentrating responsibility, that integrated court speeds decision making and eliminates the potential for conflicting judicial orders.

The approach can also increase co-ordination among criminal justice and community-based social service agencies and may improve the ability to keep tabs on defendants and to respond quickly to allegations of non-compliance with imposed orders. It may reduce the number of court appearances, thereby streamlining the process and meaning that the trauma of retelling the incident numerous times can be avoided. A review found:

“The evidence on IDVCs is promising and indicates there are advantages to bringing together family, civil, and criminal cases.”

I accept that there are issues to be addressed. Difficulties can arise when the evidence given in one case differs from that given in another, and there could be an administrative burden in ensuring that the same judge deals with both matters. Proper procedures, administration and resources would require to be in place to make it happen, but a one family, one sheriff approach for domestic abuse victims in Scotland is surely worth exploring, whether as part of the bill or separately.

Domestic abuse is monstrous and can cause immense and enduring trauma and harm. It has been sobering to hear and read the testimony of victims and the organisations that support them, which has highlighted the fact that there is behaviour that cannot currently be prosecuted because it does not meet the threshold of criminal conduct. It is clear from that evidence that more must be done to support victims, that there is a gap in our law and that the new offence is required.

We agree that the general principles of the Domestic Abuse (Scotland) Bill are sound and we shall vote for it today. However, we are confident that the Government will listen to concerns raised in the Justice Committee’s stage 1 report and during this debate to ensure that the new law is as effective as it can be.

Claire Baker (Mid Scotland and Fife) (Lab)

Last year, Scottish Women’s Aid reached its 40th year. Its work, from local groups providing support and refuge for women and children who are facing domestic abuse through to its role as a national organisation pushing for political and societal change, has been instrumental in shifting attitudes. That includes the legal system and the police, which have both changed their response to domestic abuse. The difference in how we deal with domestic abuse today compared with how we dealt with it 40 years ago is clear and welcome.

There is no longer an acceptance that domestic abuse is a private matter, that it is the victim’s fault or that the victim could leave if they really wanted to. However, there is still work to be done and, as the bill recognises, there is a gap in the law. The reality facing victims throughout Scotland is that abuse in relationships is as much psychological and emotional in nature as it is physical. A person’s home becomes their prison, their actions are watched, they are cut off from their friends and family and they are at the mercy of their abuser—a person whom they used to love, or even still do. That is why we fully support the recognition of psychological abuse and coercive and controlling behaviour as a crime.

We very much support the general principles of the bill and there is much to welcome. I hope that the cabinet secretary will appreciate that I have only a brief seven minutes and I would like to use my time constructively to consider where we could possibly strengthen the bill. There are achievable ways in which we can make the bill stronger.

Domestic abuse has a devastating impact on the victim. We must also recognise that the impact can spread further than the intended victim and can often have a serious and long-term impact on children. Those children who witness domestic abuse are at increased risk of experiencing mental health problems, developing alcohol or substance abuse problems or entering into abusive relationships themselves. We do not want to be in the position in a few years’ time of considering the bill to have been a missed opportunity.

Scottish Women’s Aid and Children 1st argue that, at stage 2 or 3, we can ensure that the law recognises the damaging impact that domestic abuse can have on children. I appreciate the cabinet secretary’s response to Kezia Dugdale’s point this afternoon and his suggestion that the bill is not the appropriate vehicle for that, but I think that the issue will be tested at stage 2.

We need to appreciate the link between domestic abuse and the impact on any children the victims may have, especially but not exclusively younger children. It clearly has a significant impact on children if they witness physical abuse. If we consider the impact of controlling behaviour, where a mother’s movements are restricted and her finances and independence are constrained, we must not ignore the impact on her child, who will also suffer from those restrictions. As Scottish Women’s Aid highlighted in its briefing for today’s debate, women’s and children’s experiences of domestic abuse are “interwoven and inseparable”.

We must also consider the impact of domestic abuse when it comes to decisions about future contact. To inflict domestic abuse on another person is a choice. It is vital that that choice is strongly considered in any court decision to award or refuse contact to a parent who is guilty of abusing their partner or ex-partner. We must move away from the current situation in which evidence of domestic abuse does not play a significant part in contact decisions.

The move to insist that courts always consider the use of an NHO is welcome. I also look forward to the Scottish Government’s response on the use of emergency banning orders.

There was some evidence to the committee that incidents could be engineered or provoked to prevent child contact and that there might be a malicious element to that. However, there was very little substantive evidence about the extent of that. However, there were descriptions of contact orders being used to continue psychological abuse. I recognise that the Public Petitions Committee has recently discussed that issue and that the Government is reviewing relevant legislation. Although that issue is outwith the scope of this bill, it is important that the bill is consistent with other pieces of legislation and the on-going review.

Scrutiny of the bill’s detail will be important. We all want to see an effective bill, but context is also important, so our commitment is to roll out domestic abuse courts nationally. The domestic abuse court model works. It ensures that victims feel safe in coming forward and confident that their case will be taken seriously; it also helps in delivering convictions.

Sadly, in recent years, we have seen cases involving domestic abuse in which it was difficult to understand the judgment reached. Domestic abuse courts would ensure consistency and expertise. We should encourage models that can build specialism in this area.

The bill affords us an opportunity to put into statute a commitment to such a model. By doing so, we would not only show commitment to victims that we understand the fragile and complex nature of their cases but address some of the concerns that we have heard about the scope and the definition of the law.

Training for the judiciary is vital. I know that it is offered, but a degree of compulsion would be greatly beneficial.

Ultimately, we must have confidence that the bill and the subsequent law are clear and easily understood not just by lawyers and the judiciary but by those at risk of domestic abuse. The concerns that were expressed to the Justice Committee about the clarity of the new offence must continue to be addressed. Although there is much support for the bill, we should recognise that it will be tested and we must all be confident that it can achieve its objectives.

As the bill progresses, the Scottish Government must continue to work to put forward the case that the law is robust and clear in its objectives and that the new offence will deliver justice for victims.

Although stage 2 will test the bill, I have a level of confidence in the legislation in that sections 1 and 2 provide a series of thresholds and safeguards. Psychological damage cannot be trivialised. It must be, by its definition, serious or substantial. The bill must challenge, not normalise, actions that demean, humiliate, harm and control partners.

The bill can be only the latest stage in tackling domestic abuse. As the cabinet secretary said in his opening statement, the extent of the abuse is concerning. We must ensure that there is sufficient funding for advocacy services, refuge accommodation, counselling and one-to-one support, but many of those services are experiencing the strain of funding pressures, particularly at the local authority level. We know that there can be a postcode lottery when it comes to receiving support, especially in rural areas, so we must work to address that.

We will be fully supportive of the general principles of the bill in tonight’s vote, and we look forward to strengthening the bill as it progresses its way through Parliament.

Mairi Gougeon (Angus North and Mearns) (SNP)

It is a privilege to speak in this debate on the Domestic Abuse (Scotland) Bill, because it is a vital piece of legislation to come before Parliament.

The bill makes domestic abuse a specific offence and creates a new offence of

“Engaging ... in a course of abusive behaviour”

towards a partner or ex-partner. It recognises, for the first time, the patterns of abusive behaviour and the truly traumatic and lasting impact that that has on the victims of abuse.

The Justice Committee heard a considerable amount of powerful evidence on the bill. Today, I will focus my contribution on non-harassment orders. A non-harassment order is a court order that can be used against a partner, ex-partner or any third party behaving in a way that frightens or causes distress. Currently, it is up to the prosecution to request a non-harassment order, but the prosecution is under no obligation to engage with the victim on whether an application should be made.

Under the current system, only a small percentage of successfully prosecuted cases result in non-harassment orders being issued. Research that was done in one region found that there were convictions in 502 out of 644 cases with a domestic abuse aggravator, yet only 33 non-harassment orders were issued—that is, in only 6 per cent of successfully prosecuted cases. Under changes that the bill proposes, consideration of non-harassment orders would be mandatory in such cases.

Non-harassment orders are particularly important for two reasons. First, as was mentioned repeatedly in the evidence submitted by the Crown Office and Procurator Fiscal Service, Zero Tolerance and others, there is a significantly high risk of reoffending. Zero Tolerance cited evidence of that risk being a

“near certainty in domestic violence cases.”

The second reason is the high financial cost of pursuing a non-harassment order through the civil courts. We read about the experiences of one survivor of domestic abuse in written evidence. She wrote:

“On the day of sentencing I did not know if my abuser, who was my husband would be given a Non Harassment Order. He was not. In effect the law would allow him to leave court, get in his car and drive straight back to the marital home where I was still living. Having had the benefit of 17 months of police bail conditions while he was ‘innocent’, the law waits until he is actually convicted of a violent crime, then lifts the protection I had. It just doesn’t make sense.”

She went on to highlight what that means financially for those who are then forced to try and pursue a non-harassment order through the civil courts:

“A civil interdict is a very expensive route and I would argue beyond the reach of most victims ... When considering this I rang a solicitor and was quoted £2,000. When I expressed my shock and asked what if I can’t afford it, he replied that some women just wait to be assaulted again and use bail conditions!”

The costs, which can spiral to as high as £10,000 if the interdict is defended, can be considered as acting in effect as a barrier to justice.

The evidence went on to say:

“I can honestly say I would rather be assaulted again than go through the system as it stands”.

What frustrates and hurts me about that statement is that we heard exactly the same from another victim of domestic abuse when the Justice Committee took evidence as part of our inquiry into the Crown Office and Procurator Fiscal Service. We simply cannot have a situation that makes people who have suffered such horrendous abuse prefer to suffer that abuse than go through the justice system.

Another important element that we touched on during our evidence sessions is the potential for introducing emergency barring orders—an immediate action that could be taken that would, essentially, ban perpetrators of abuse from the home of the victim for as long as was considered necessary. Unfortunately, we felt as a committee that we had not taken enough evidence on that to make a recommendation, but I am glad that we will take more evidence on it at stage 2.

The bill that we are discussing today is such an important piece of legislation. It has the capacity to make a huge difference to those who have suffered physical and psychological abuse, as well as sending out a message loud and clear that the insidious crime of domestic abuse will not be tolerated in our society and in our country.

The Deputy Presiding Officer (Christine Grahame)

Before I call Maurice Corry, I remind everybody that speeches should be of four minutes but there is a reasonable time in hand for members to take interventions, for which they will get the time back.

Maurice Corry (West Scotland) (Con)

I am glad to have the opportunity to take part in this very important debate on the Domestic Abuse (Scotland) Bill. I, too, acknowledge and thank the organisations and individuals who gave so eagerly and well the evidence that they put before the Justice Committee, sometimes in awfully difficult circumstances.

Domestic abuse is an intolerable, evil act that happens too often in our society. It harms those who are meant to be closest to us and to whom we look for support. It is totally unacceptable whatever form it comes in, but the law as it stands does not properly take into account every aspect of domestic abuse.

On page 12, the Justice Committee’s stage 1 report on the bill references the submission from Anne Marie Hicks of the Crown Office and Procurator Fiscal Service, who told that committee that the current law has prevented

“‘the bigger picture’ behind an abusive relationship being put before the court.”

The need to include psychological as well as physical abuse was clearly highlighted by Sacro in its submission to the committee. It is correct when it highlights that

“Psychological abuse can be just as effective as a method of control as physical abuse”.

The need for changes has also been made clear to the Justice Committee from a large number of varied and respected external sources including organisations that work with victims of domestic abuse, social workers, academics, lawyers, the police service and the Crown Office and Procurator Fiscal Service.

That is not to say that there are no issues with the bill, however. For example, Clare Connelly of the Faculty of Advocates noted concerns that the offences as set out in the bill do not sufficiently contextualise the conduct to be made criminal. My colleague Liam Kerr spoke about that. Additionally, Clare Connelly noted that it would be appropriate for a publicity campaign that focuses on addressing coercive control to be run alongside the implementation of the provisions in the bill. I agree with her conclusion that that overall approach would be more effective.

I will be interested to hear what thought the Scottish Government has given to the possibility of a publicity campaign to highlight the issue of coercive control as it relates to domestic abuse. Research bears out that it is a problem area. It shows that many people are likely to think that forms of coercive, controlling behaviour are more acceptable in a relationship than physical abuse. We welcome the fact that the vast majority of people know that physical domestic abuse is wrong, but we need to get to the same place on psychological domestic abuse.

Sandra White (Glasgow Kelvin) (SNP)

I agree with Maurice Corry about training, but what we really need is training for cultural change. For many years, domestic violence—I do not like that title, I have always called it just violence—was accepted, until we had cultural change through laws and advertising. I absolutely agree that training is important, but we need a cultural change in society to ensure that not just physical domestic abuse but psychological abuse is seen as unacceptable.

Domestic abuse is happening all around us all the time. People might not recognise it now, but I hope that they will recognise it once the bill has bedded in. Like members who have already spoken and many organisations and agencies, I welcome the bill. Scottish Women’s Aid said that the bill will

“bridge the gap in addressing controlling behaviours not covered by existing offences and crimes, particularly those that cannot be dealt with via common assault, threatening and abusive behaviour, and stalking ... Victim survivors have been telling us for 40 years that the harm from emotional and psychological abuse is the most traumatic.”

Women’s Aid is absolutely correct.

I am so pleased that the bill is going through, and I welcome the Justice Committee’s work on it—the committee members have been dedicated on the issue. As the cabinet secretary said, domestic abuse is not only physical abuse. Controlling, intimidating and threatening behaviour is all psychological abuse. It can start with a drip, drip effect—for example, money is withheld, so victims have no money to go out, buy clothes or see their friends and family. Victims are told what to wear and what not to wear, and they are told so many times that they are stupid and worthless that, unfortunately, they begin to believe it. That is the psychological drip, drip effect that Women’s Aid has been aware of for more than 40 years.

Like members of the Justice Committee, I thank most sincerely the people who gave evidence. I served on that committee for various bills and I know how traumatic giving evidence is.

I very much welcome the fact that the bill recognises that third parties—in most instances, that will be a child or a young person—can be used by a perpetrator. It has not been recognised before that a child is normally there. The child or young person can be used by a perpetrator to push the abuse further, and I thank the Government for taking on board the evidence about that. Most organisations and agencies have welcomed the bill’s approach; witnesses from organisations that work with children and young people told the committee that the inclusion of the aggravator shows that the Scottish Government listened and responded to the concerns that they raised during the pre-legislative consultation, after the aggravator was not included in the initial consultation.

The CEDAR—children experiencing domestic abuse recovery—network is a group that Glasgow Women’s Aid runs in my area to support mothers and children. It is a five-year project to deliver specialist support to women and children in the centre and east end of Glasgow. It offers support by addressing the behavioural, emotional and social difficulties that children and young people can experience because of domestic abuse. We must remember that children are affected by physical abuse and psychological abuse, and I welcome that aspect of the bill.

The Deputy Presiding Officer

I have some time in hand, so I can give members a little leeway—30 seconds. I know that that does not sound like much but, as nobody is intervening, I have to use up the time. I do not often say that.

Kezia Dugdale (Lothian) (Lab)

I would be delighted to assist you in that effort, Presiding Officer. Thank you for the opportunity to speak.

The bill is about improving the justice system and how it serves the victims and punishes the perpetrators of domestic abuse. What the bill cannot do is eradicate domestic abuse. I remind members that abuse is about the exercise of power—as long as women are unequal in society, domestic abuse will persist. The bill could be perfect and domestic abuse would still persist, which is why we must redouble our efforts for the wider goal of achieving gender equality in society.

On that point, I love Paisley, but while back benchers in yesterday’s debate on Paisley’s bid to be city of culture were given six minutes for speeches, today I have four minutes to talk about a bill in a stage 1 debate. I cannot help but ask whether that is a product of having a Parliamentary Bureau that is composed entirely of men.

I very much welcome the bill and the way in which it is the result of consultation on various aspects of the issue. I welcome, too, the contributions from Justice Committee members. As Claire Baker said, we whole-heartedly support the bill’s principles. Like her, I will focus on what is missing from the bill and return to the need for a parallel offence of domestic abuse against children to be included at a later stage. I encourage the cabinet secretary to look at the evidence from Scottish Women’s Aid about the requirement for that. Equally, it is important to consider how good emergency banning orders would be, because the evidence has told us how ineffective exclusion orders are in the civil system.

I am a cynical soul these days, for a number of reasons, so I would like to consider how the bill’s principles might operate in practice. There is a history in the Parliament of doing brave things and of producing grand, world-leading legislation but then not fulfilling that legislation’s promise when it comes to delivering in practice. Just yesterday, at question time on the theme of education and skills, I talked about how proud I was of the Children and Young People (Scotland) Act 2014 and its provision for continuing care for looked-after young people, yet I exposed the fact that 99 per cent of the young people who should have access to such care currently do not have it.

I am sure that Parliament would be united in its hope that what we are doing with the Domestic Abuse (Scotland) Bill will be realised in practice. To do that, we need to consider four things: education and training, resources, publicity and the relationship that the bill will have with the rest of the justice system.

On education and training, as a Conservative colleague said, we have to ensure that training on the principles behind the bill is provided to staff who will have any contact with the bill’s provisions.

My colleague Claire Baker discussed resourcing. We know that cuts to refuge services are a considerable issue in constituencies across the country, as are cuts to community policing and pressures on housing. I have talked in the chamber before about meeting a woman who was the victim of domestic abuse who was stuck in a refuge for 18 months because the housing list was so long. She wanted to move on from that experience, but she could not.

We will have to do a good job of advertising the benefits of the bill to the wider public, just as the Government has done on the issue of revenge porn; I commend the Government for the publicity campaign that has gone along with that new offence.

Ultimately, we have to look at the relationship between the bill and the rest of the justice system. Some colleagues have referred to the relationship between the bill and contact orders when it comes to families with children, where that is a necessary issue.

One thing that we have perhaps talked less about today is criminal procedure. I very much welcome the sections of the bill that address that. I cannot help but think about what the bill would have meant for constituents I have met during my time as a member of the Parliament. I think of one particular woman who came to my surgery having experienced domestic abuse. The bill would have helped her but, to her mind, it will not go far enough.

I will give members some examples of that woman’s experiences. She came to talk to me about what life was like for her and her children, having been subjected to an abusive partner. Her children had to give evidence from a remote site, but the Edinburgh remote site was closed, so they had to travel to Livingston to do that. That caused great discomfort for the family. The children were not told enough about what it would be like to give video evidence in court. They were not told that they would be streamed live not just to the judge but to the whole courtroom, and they were alarmed to hear about that after the event.

The trial date of the court case was moved on four occasions because the accused tried deliberately to prolong matters. That in itself is a form of abuse. The accused faced 30 charges and was eventually convicted on 10 counts, with three “not proven” verdicts, but he was released for background checks prior to sentencing. He absconded while he was on bail, but when he was caught, he was bailed again. The bill will not address that issue of criminal procedure, which I encourage the justice secretary to look at again.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Today is a historic day, because the Domestic Abuse (Scotland) Bill will, for the first time, introduce provisions on psychological abuse into the repugnant crime of domestic abuse. The bill has two main purposes: to create a new offence of engaging in a course of abusive conduct against a partner or ex-partner; and to amend other procedural and evidential aspects of criminal law in relation to domestic abuse. It recognises the damage that psychological abuse can do and makes it a crime in its own right. It addresses a gap in the criminal law by allowing for domestic abuse convictions based on a course of conduct that includes psychological abuse, rather than on individual incidents.

We all know that psychological and emotional abuse is just as painful as physical abuse. We might not see the bruises, but controlling and coercive behaviour eats away at the victim’s soul and self-esteem each and every day. The Justice Committee heard heartbreaking evidence, and I thank our witnesses for their immense bravery in telling us their stories so that others will not suffer in the way that they did.

Domestic violence—physical and psychological—exists in all sections of our communities and at all levels of society. As we have heard, mental and emotional abuse includes threats, criticism of someone’s appearance and intellect, name calling, and controlling what someone does, their access to money, where they go, how they dress and who they speak to, among many other degrading control mechanisms. The cowardly abuser knows no bounds. They will threaten someone’s children and isolate them from friends and family—in effect, they will try to make them a non-person. It is all about control—control by fear.

The bill aims to tackle all forms of that vile crime. As we have heard, it has been welcomed by a wide variety of organisations, including Scottish Women’s Aid, the Law Society of Scotland, Children 1st and the NSPCC, to name but a few.

Children are the forgotten victims of domestic violence. The ways in which they can be harmed by domestic abuse extend further than simply witnessing abuse. The trauma is long lasting and far reaching. I am therefore delighted that the bill provides for a statutory aggravator for instances of partner abuse in which third parties—usually children—are involved. That aggravator was not part of the Scottish Government’s initial consultation on the bill but, as we listened to stakeholders such as children’s charities and women’s groups, it became clear that children needed to be recognised as major victims of such crime.

I have sympathy with the view among children’s organisations that abuse of children in domestic violence cases should be recognised in its own right, but the Government believes that the bill strikes the right balance and that major reform of the criminal law on the abuse of children is best considered separately. That law is under review, and I sincerely hope that that review will reflect the urgent need to recognise the devastating effect that domestic violence can have on children.

Another welcome measure in the bill is the requirement for courts to consider whether to impose non-harassment orders to protect victims. Scottish Women’s Aid believes that it is critical for NHOs to cover children, too, and that courts should be more willing to consider refusing contact for abusive parents. I agree, and I am pleased that the cabinet secretary is considering that. I am also pleased that emergency barring orders are being considered and that the cabinet secretary will enter dialogue with third sector organisations to consider that measure at stage 2.

There is not enough time to do justice to all aspects of this important bill—I agree with Kezia Dugdale that time is far too short—but I hope that, between members around the chamber, we have covered most of the salient points. The bill aims to expose the inadequate bullies who perpetrate controlling and coercive behaviour and to send a message to them that such behaviour will not be tolerated. For that reason, I am proud to recommend the general principles of the bill to the chamber.

The Deputy Presiding Officer

As I said, there is some time in hand, so members can say a little more.

John Finnie (Highlands and Islands) (Green)

A number of speakers have talked about filling a gap. Indeed, Scottish Women’s Aid mentioned that in its briefing. I thank it and other organisations for their briefings.

The cabinet secretary used the phrase “the next important step”. The bill is an important step, but there is further to go. That has been alluded to in members’ comments about legislating in respect of children.

The bill is about a course of conduct that includes psychological abuse. That is laid out in section 2. It is important that the list is non-exhaustive because it remains open for the courts to decide on the matter.

I align myself with some of the comments from, I think, Claire Baker, who talked about the important role that domestic abuse courts can play. I have long been an advocate of rolling out that approach. People need to have a clear understanding that it is about the timetabling of events rather than new buildings. It is about scheduling and people working together, which is surely what we want in relation to domestic abuse.

I will read one part of the Scottish Women’s Aid briefing that I thought was particularly significant:

“The new law offers a policy sea change by focusing our criminal justice response on the actions of the perpetrator rather than the circumstances of the victim. By doing so, it will enable better understandings of domestic abuse and its impact on women, children, and young people in our communities, institutions, and country.”

To inform our inquiry into the bill, we heard testimony, as a number of members have mentioned. Indeed, in our report, we say that we

“received compelling and persuasive evidence that psychological abuse within a relationship or by an ex-partner can cause immense and enduring trauma and harm.”

Elsewhere in the report, that evidence is referred to as

“powerful and moving private testimony”.

I express my great respect for those women.

Domestic abuse is primarily, although not exclusively, gender-based violence. It is important to say that confidentiality must be respected but, in some respects, it is disappointing because those women can do far more to explain the need for the bill and more measures than any politician could. Great thanks are due to them. They showed courage for a number of reasons. They are from a wide range of backgrounds and geographies, and many of them had to relocate. That affected the relationship not only with the partner but with the wider family.

Laws are intended to reflect society’s views on a given issue. As a number of members have said, there has been a welcome change in relation to domestic abuse, but we have a way to go.

I will touch on how the police will respond to the bill. Detective Chief Superintendent Boal said that there was nothing new in it. That is correct. The change that has taken place in how the police respond to historical issues of violence will not be reflected in their initial reaction when they attend the scene of an allegation. The subsequent inquiry will unearth it. Police Scotland has done some tremendous work on serial abusers whose violence has been visited on not only one female victim or one household but a series of them, sometimes over decades. Some of the salutary sentences rightly reflect the damage that those abusers have done to a number of lives. Therefore, I have every confidence that the police, working with the prosecutors, can properly address the matter. Judgments will always have to be made, but that is the case with every piece of legislation. We need not fear anything about that.

Another term that is used in the report is “hard to reach groups”. The survivors from whom we heard and the people whom the bill will assist, should it be passed—I sincerely hope that it will be—have been hard to reach. They have felt abandoned. People have talked about the effect that the criminal justice system has on victims. It should support and help them, not victimise them further.

I appreciate that time is limited, but it is important to quote some of the evidence from Children 1st, which other members also covered. It talks about the need for a

“mandatory duty on the court to consider whether to impose a non-harassment order that includes a child in all cases where the statutory aggravation in relation to a child is applied.”

That is important. If we are going to recognise that effect in the aggravation, it should be picked up in the order. That is important for another reason, too. It is a well-documented fact that child contact is an occasion when psychological abuse continues. I hope that that matter will be looked at as we go forward.

Scottish Women’s Aid commented that we should

“ensure that abusive behaviour dealt with by the criminal courts is regarded as prima facie evidence of unsuitability for contact with a child”.

The Deputy Presiding Officer

I gave you an extra minute, Mr Finnie, so you should conclude now, please.

John Finnie

Many thanks. I lend the bill my full support.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

As others have said, psychological abuse within a relationship or by an ex-partner can cause immense and enduring trauma and harm. As a member of the Justice Committee, I had that underlined to me most powerfully and movingly by the survivors who we met and the many remarkable agencies that support survivors across Scotland.

It is clear that domestic abuse is a multidimensional scourge on our society and on us all, which affects a range of relationships but particularly unequal relationships between men and women. It affects people across class, wealth, ethnicity and age. That is why I strongly support the principles of the bill, which will create a new offence of engaging in an abusive course of conduct, because that is the lived reality of such abuse on the ground and the lived experience of victims as we speak. The bill takes account of the context and impact of domestic abuse.

The proposed offence addresses a gap in the existing law by recognising—that is an important word—that domestic abuse might not only damage or violate a victim’s physical integrity but undermine their character and restrict their autonomy, freedom and ability to live their life in the manner that they choose.

I said that the word “recognising” is important. That is because the bill, if passed, will not only empower our courts to deal more effectively with this scourge on our society but help to clarify that such coercive, controlling behaviour is unacceptable. Some of the survivors from whom we heard said movingly that, at the beginning, they were not quite clear whether they were being abused. Passing the bill will provide absolute clarity across society, particularly to victims who are suffering. They will be able to tell more easily whether they are being abused and the ability of the criminal law to take judicial action on their behalf, in the interests of justice, will be clear, too.

I support the gendered approach taken by the bill, because that is the right approach. As other members have said, the bill is set within a wider context of gender equality and addressing violence against women. That is why we have to get the bill right and make sure that the criminal justice system is ready and resourced appropriately to use the new powers and abilities that the bill will give it in order to ensure greater justice.

Others have mentioned a publicity campaign. They were absolutely right to say that it is important that there is a Government-led publicity campaign and that there is training to make sure that people in the criminal justice system and the third sector can support and give effect to the bill’s intention. That work to raise awareness has already started with the introduction of the bill and the stage 1 process.

I draw to the Parliament’s attention Scottish Women’s Aid’s one thousand words photo project. It is putting forward 15 new images of what domestic abuse looks like in order to get away from the perception that domestic abuse is only about physical harm and to illuminate the fact that it is deeper than that—it is multifaceted, and that whole range of abuse is what we should tackle. The bill will make a remarkable difference on that journey and I fully support it.

Liam McArthur (Orkney Islands) (LD)

I will start by confirming that the Scottish Liberal Democrats unequivocally support this bill to tackle controlling and coercive domestic abuse, although I think that Kezia Dugdale was absolutely right to warn that there are limits to what any bill, however good, can achieve on its own.

I thank all those who gave written and oral evidence to the committee and, like others, I pay particular tribute to the survivors of domestic abuse we heard from, whose often harrowing testimony vividly brought home to us all how psychological abuse can be every bit as damaging, as traumatising and as long-lasting to a victim as physical abuse.

For all the strides that have been made since the establishment of the Parliament in terms of heightened public awareness, political priority and changes in legislation, the prosecution of psychological abuse has too often proved difficult. That has made it difficult to reinforce the messages about how unacceptable controlling and coercive behaviour is and has in turn made it difficult to persuade victims to come forward. Ben Macpherson was absolutely right that victims are looking for more clarity and certainty that the abuse that they have suffered will be recognised and action taken against the perpetrators.

As I say, the Scottish Liberal Democrats strongly support the principles of the bill and welcome the contribution that it can make to closing the gap in our criminal law. I look forward to working with committee colleagues, ministers and stakeholders to improve and strengthen the bill in a number of areas.

A range of questions were raised with the committee during stage 1. Initially, there was a debate about whether the scope of the bill should be broadened to encompass wider family relationships, including elder abuse. Although that appears to be the approach adopted in recent legislation south of the border, from the evidence that we heard, I am certainly persuaded that the nature of abuse between partners and ex-partners demands a laser-like focus and response.

That is not to say that there is not a recognition of the impact that domestic abuse can have on children in a relationship or household. Although the bill acknowledges this and establishes a specific “aggravation”, I think that Scottish Women’s Aid and others are right in arguing that the effect is not just on a child who sees, hears or is present in the house during a particular incident, as a child’s experience is invariably interwoven with that of their abused parent. That needs to be better reflected in the bill.

More controversially, perhaps, we also considered whether the evidential bar for prosecuting coercive and controlling behaviour was set at an appropriate level. We heard concerns from legal experts, the Scottish Police Federation and others that the bill may risk criminalising behaviour that, although unpleasant, should not be considered a criminal offence.

Initially, I admit that I was persuaded by some of those concerns, but over the course of the evidence that we heard I became increasingly satisfied that the tests were sufficiently robust. The Government response to the committee’s report provided further help in clarifying that position.

It is absolutely right that courts should be required to consider non-harassment orders in any case of domestic abuse, but we can go further. Children 1st argues, as John Finnie reminded us, that

“in all cases where the statutory aggravation in relation to a child is applied,”

the court should be required to consider a non-harassment order covering the child or children. That seems to have merit and we will return to that at stage 2.

Similarly, emergency barring orders in more serious cases could, I think, play an important role, and I welcome the Government’s engagement with the third sector in developing proposals that the committee will consider and take evidence on at stage 2. More work is also needed, as others have said, on tying down the details of the resources needed to make this legislation, when implemented, as successful as possible.

There is a welcome acceptance by ministers of the critical importance that training and awareness raising can play, but perhaps insufficient clarity around the scale of what might be needed. It might be helpful if the cabinet secretary set out his thoughts in more detail when he winds up.

Finally, I note that Scottish Women’s Aid is highly critical of any suggestion from the committee that there might be diversions from prosecution. For my part, I accept that criticism, and although this will always be a matter for the Crown Office, I think that the more appropriate debate to be had is in relation to alternatives to custodial sentences in certain circumstances.

I am in no doubt at all that coercive and controlling behaviour can have a devastating and enduring impact on a victim by undermining their sense of self and hollowing them out, slowly but surely. At present, the criminal law in Scotland is inadequate to deal with such abhorrent and pernicious abuse. I am pleased that the bill can play an important part in righting that wrong and I will have great pleasure in supporting its general principles at decision time.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I am pleased to be speaking in the debate and am immensely proud that the Justice Committee unanimously agreed to the principles of the bill. How often do we see five parties all agreeing about a bill? That says something about Scotland and the Parliament, and we should all be very proud.

During committee consideration, we heard evidence upon evidence that the bill is needed and that there is a gap in the law that means that victims are not protected from psychological abuse. That evidence came from Scottish Women’s Aid, Abused Men in Scotland, all the children’s charities, social work, the police, the Crown Office and Procurator Fiscal Service and victims themselves, to name but a few.

My experience as a social worker told me the same. In 12 years in a local office setting, I lost count of how many times I sat at a child protection conference, a children’s hearing, a multi-agency public protection arrangements meeting or some other forum and heard evidence of what was often a pervasive pattern of psychological and emotional abuse over long periods of time. The police, social and health services often had nowhere concrete to go.

The bill will be groundbreaking and will make a real difference to service intervention and, most importantly, to the lives of those suffering at the hands of abusive—mostly, but not exclusively—men.

I do not want to sound too sucky-uppy to the cabinet secretary but, because this issue was part of my work life for a long time and it means a lot to me, I will say that if the bill is passed, he can be very proud. In years to come, he will be able to think back to this as an absolutely outstanding achievement that will have positively impacted the lives of many and helped to change the culture in this country.

I will address some of the issues in the committee report. Much has already been said, so there is a risk of repeating things, but it is worth doing. A very small—and I stress that it is small—number of stakeholders expressed concerns that the bar of criminality is being set too low. I do not agree with that. The committee heard evidence from Anne Marie Hicks from the COPFS who did not think that that was the case. I welcome that, in its response to the committee’s report, the Government outlined the three thresholds that require to be met; I am sure that the cabinet secretary will highlight those.

During evidence gathering, the subject of children who are exposed to such behaviour generated a lot of discussion. I welcome the Government’s response in relation to the review of the Children (Scotland) Act 1995, including a review of child contact cases as they relate to domestic violence.

I also welcome that there will be consideration of amendments at stage 2 to allow non-harassment orders to protect children specifically. The Government is taking a positive step in meeting Scottish Women’s Aid to talk about emergency barring orders, and I encourage dialogue on that front with the children’s charities such as Children 1st. I met Chloe Riddell earlier today and we discussed that very issue.

I will follow up on a question that I asked the cabinet secretary when he made his recent statement. I believe that the introduction of such an offence and the subsequent publicity will lead to more convictions. From working in the field, I know that the Scottish Government has recently invested strongly in criminal justice, especially in addressing female offending. However, we need to ensure that funding is increased for programmes for male perpetrators—because it is particularly male perpetrators—of domestic violence. Programmes can work, but they need people who can specialise and do the intense work. It takes a lot of work to change people’s belief systems. The change programme and the Caledonian system are examples of such work.

I take the opportunity to encourage local authorities to use Government investment to create specific posts for people who work in the area and allow them to effect change. Some local authorities do this already, but I would like to see local authorities have specific teams to work on domestic abuse, as they do in other areas of criminal justice. That would be a step in the right direction.

I see that I have been speaking for just over four minutes, Presiding Officer, so you will be glad to know that I am finishing. I welcome the bill and commend it to the chamber.

Gordon Lindhurst (Lothian) (Con)

Close and intimate personal relationships are an integral part of our lives. Sharing life with a husband or wife, for example, learning more about each other and experiencing life together can give some of the most precious times in life. However, when relationships break down, whether momentarily, temporarily or permanently, such moments can be the worst that any of us face. Worse still is a situation in which two people have placed trust and love in each other, only for one of them to turn around and abuse that trust through physical or psychological maltreatment. Such abuse can take many forms and leave deep emotional wounds that last long after a physical bruise or scar may appear to have healed, and so complex can human relationships be that the victim may not initially realise what is happening.

It is that sort of complicated set of circumstances that we look at now as lawmakers. I am sure that we all agree that our purpose should be to target serious wrongdoings rather than what might be categorised as occasionally irrational behaviour. Human weaknesses can, of course, often cause disagreements to take place within a relationship. Andrew Tickell of Glasgow Caledonian University law school said in evidence—I quote—

“Even broadly healthy relationships are occasionally characterised by hurtful conduct, jealous behaviour, and distressing episodes.”

Calum Steele’s evidence has been referred to already—one part of it, anyway—but he said that his experience was that once the criminal justice system becomes involved, that involvement can itself become a source of regret and distress to individuals. So, the question is this: is the draft legislation that is before us sufficiently clear, or does it blur the line between a pattern of unacceptable, coercive and controlling behaviour on the one hand and irregular friction on the other? Does it overcriminalise?

The Glasgow Bar Association referred to a “wide scope of behaviours” that may be criminalised by the bill. Others, including the Law Society of Scotland, raised concerns about the bill having a low threshold to establish a course of behaviour. An example that has been referred to already is that of using “distress” as a measure of the impact of a person’s behaviour towards another. It is valid and important to ask, as others have, whether the bar is being set too low.

John Finnie

Does Gordon Lindhurst accept that we must take cognisance of the judgment of the individual who chooses to pick up the phone and say “I require the police’s assistance”? Matters will develop as a result of that, but it is their judgment.

Gordon Lindhurst

Yes, of course. It is always the judgment of the individual whether to pick up the phone and call the police. I do not demur from that, at all.

Fulton MacGregor

Will the member take an intervention?

Gordon Lindhurst

No.

We can contrast this Scottish bill’s classification of behaviour as being coercive or controlling even when it has happened on only two occasions with the definition in the Serious Crime Act 2015 for England and Wales. That 2015 act refers to someone who

“repeatedly or continuously engages in behaviour towards another person”.

Home Office guidance on the 2015 act makes it clear that courts should

“look for evidence of a pattern of behaviour established over a period of time rather than ... one or two isolated incidents which do not appear to establish a pattern.”

A serious concern arises on this point: law should be clear. Those of us who, like me, have been involved in prosecution of such cases under the current system understand that. Those who have been involved know that these are sensitive matters that need to be looked at very carefully. As Mr Tickell said,

“legislators should get the law correct in the first place rather than trusting the prosecutors to use the law as it was intended.”

I am sure that that is what we are all trying to do here and what we agree we should be doing.

Without demurring in any way from the principles of the bill, I say that I am not entirely satisfied that all the concerns that have been raised have been addressed. The important point is that we want the bill to work, but for it to work, we need to see that it will work in practice because it is watertight, and that it will have its agreed intended effect.

Christina McKelvie (Hamilton, Larkhall and Stonehouse) (SNP)

The poet and domestic abuse survivor Christy Ann Martine wrote this:

“You can’t keep her in a cage,
clip her wings, tell her lies,
say that fragile birds
were never meant to fly.
Watch her live behind
a rusted door, latched tight,
her spirit slipping away
so you can keep her in sight.
Beautiful creatures
cannot be confined.
Her wings will grow,
she’ll find the sky.”

I will talk about that in a minute.

Around one in three women and a growing number of men become victims of abuse. We like to think that we find such behaviour completely and utterly appalling and disgusting, which we do, but some people are still too inclined to brush it under the carpet. However, we know that it is still happening—the evidence tells us that. We are better informed by statistics, but too many victims are still fearful of seeking redress. Perhaps some people—particularly, although not exclusively, the abusers—think, “Oh, well. You’ll get over the broken bones, the bruises and the smashed teeth and life’ll go on”, but we know from the committee’s evidence and evidence from other avenues that that is certainly not the case for many victims.

The question is whether we are doing enough. We need to wipe out home-based domestic violence and make it completely unacceptable. That is the culture change that my colleagues have spoken about. With the right tools in place, Scotland can become an exemplar and can really chip away at an old and outdated notion—the “It’s none of my business, pal” mentality.

That can be done through grass-roots community work. Many of the relevant organisations have been mentioned, and I would like to thank them for all the help and support that they have given me in the work that I do in co-convening, along with my colleague Claire Baker, the cross-party group on men’s violence against women and children. We have seen some improvements—in many cases, huge improvements—through the work of locally led groups, such as South Lanarkshire Women’s Aid and the Lanarkshire Rape Crisis Centre, which I have worked with, as well as the brilliant work of the STAMP—stamp out media patriarchy—project in schools.

The bill tackles one of my biggest concerns, which is coercive control, the victims of which are not aware that being isolated from friends or family, having their access to money and bank accounts restricted or having personal medical conditions revealed are domestic abuse. It needs to be a criminal offence. Such behaviour devastates human lives. Using gestures and eye contact to warn a person or control their behaviour can be undetectable to most of us, but devastating to the person who is the target of it.

The Justice Committee saw so much “compelling and persuasive evidence” of psychological abuse that it saw it as

“a real and pernicious issue, the effect of which can be every bit as harmful as any violent abuse.”

It is important to add that an increasing number of victims are young men and women in the lesbian, gay, bisexual, transgender and intersex community. Having a same-sex partner does not protect people from abuse. Members of that community find themselves being bullied, humiliated, laughed at or rejected through psychological and coercive behaviours and the physical violence that comes with them. We must be mindful that that is happening.

In its briefing, Scottish Women’s Aid welcomed the principles behind the bill and said:

“The new law offers a policy sea change by focusing our criminal justice response on the actions of the perpetrator rather than the circumstances of the victim. By doing so, it will enable better understandings of domestic abuse and its impact on women, children, and young people in our communities, institutions, and country.”

I agree. Our present law leaves a gap that the bill will, I hope, close. It will give better protection to victims who seek redress for acts that will be criminal in law. At the moment, if someone wants to make a case, they must do so either on the ground that their physical integrity has been attacked or the ground that threatening behaviour has caused them fear and alarm.

Fundamentally, the bill carefully defines the offence of engaging in an abusive course of conduct against a partner or ex-partner. The asks that some members have made notwithstanding, it will enhance the power of the police and improve protection for victims. Here is my ask: I ask the Scottish Government to strengthen the bill when it comes to the impact on children, on which I know Scottish Women’s Aid has some proposals. I would also welcome the Government confirming that the review of the Children (Scotland) Act 1995 will include consideration of that issue, and I reiterate Kezia Dugdale’s call for similar mindfulness.

I also ask the Scottish Government to be mindful in its review of short-term sentencing during the passage of the bill—I am sure that many organisations will tell the Government why they have concerns about that.

The bill presents an opportunity to break the lock of the cage that Christy Ann Martine described.

The Deputy Presiding Officer

Please conclude.

Christina McKelvie

Why would anyone stand in the way of the bill’s essential principles? I do not.

The Deputy Presiding Officer

I did not want you to eat into the time for the closing speeches.

Rhoda Grant (Highlands and Islands) (Lab)

From the outset, this Parliament set out on a journey to combat violence against women. It is good to see the bill progressing, and it is good that there is support for extending domestic abuse legislation beyond physical abuse to cover emotional and coercive control within a relationship.

However, that is not the end of the journey. There are many more issues that need further examination and legislation. I hope that some of them can be included in the bill at stage 2; those that cannot be included must be given priority. Our vision must be to create a country in which we have true equality and an end to violence against women.

We need to look at the legislation around children who are victims of domestic abuse, and we need to ensure that there is adequate resourcing of the police, social services and support services such as Scottish Women’s Aid, which does wonderful work. My colleague Claire Baker paid tribute to Scottish Women’s Aid, which has been in existence for more than 40 years and is still battling the scourge of domestic abuse.

We recognise the devastation that domestic abuse brings to women, but we need to understand that children of the relationship are damaged, too. That point was made by Claire Baker, Kezia Dugdale, Rona Mackay and many other members. The bill deals with situations in which a child is used as an aggravator to further the abuse of the adult victim, but it does not deal with the impact of domestic abuse on the child.

The impact of domestic abuse on a child can be long term and catastrophic. In its briefing for the debate, Children 1st said:

“An increasing body of robust international evidence recognises domestic abuse as one of ten types of traumatic adverse childhood experiences (ACEs) which can increase the likelihood of people developing chronic diseases, mental ill-health and a range of negative social and emotional impacts, such as being a victim of violence throughout their lifetime.”

That is the impact on children who are brought up in a relationship where there is domestic abuse. Until we recognise that and protect such children, we will be falling short in our duty of care to them. As Liam McArthur said, the child’s experience is totally interlinked with that of the abused parent.

A review of the Children (Scotland) Act 1995 will take time, and more children will suffer in the interim. There are things that we can do in the bill that will save many children from being harmed while the review is taking place.

I have seen many cases in which child access arrangements have been used to continue the abuse beyond the end of the relationship. That has a long-term impact on the child, in addition to the impact of the abuse itself. It is surely not acceptable that a mother should be forced by the court to send her child into a dangerous place.

Child access arrangements in situations of domestic abuse need to form part of the disposal. Scottish Women’s Aid, Children 1st and other expert stakeholders propose that a child should be provided with a non-harassment order in their own right. Such an approach would prevent a civil court from forcing a child to have contact with an abusing parent. Indeed, I think that an abusing parent should have no access to a child until they can prove that they have changed their behaviour. A parent who creates a situation that damages their child should surely relinquish all their parental rights. That is the case under child protection arrangements; it is just that we do not recognise the damage that witnessing abuse does to a child.

In his speech, Michael Matheson said that he will deal with the issue in new legislation. There are wider issues that can be dealt with in new legislation, but domestic abuse courts are expert in recognising what a children’s hearing or civil court might not recognise. There must be no gaps in child protection. I urge the cabinet secretary, as other members have done in the debate, to look again at the matter.

There is some opposition to the bill. As Liam Kerr pointed out, a minority of those who gave evidence expressed reservations about the wording and the practical effect of the new offence. Some legal experts and police officers have talked about the difficulty of legislating in the realm of human relationships, but that takes me back to the days when people referred to “domestics”. I find it sad that such views still resonate in some quarters today, and they indicate the need for additional training of police and prosecutors. After all, such abuse is easily recognisable to the trained eye, as Maurice Corry, Kezia Dugdale and Ben Macpherson have pointed out.

The Deputy Presiding Officer

Please conclude.

Rhoda Grant

I must apologise, Presiding Officer—I could go on for some time. However, let me finish by saying that we support the bill as a step in the right direction and hope that we can build on it at stage 2.

Michelle Ballantyne (South Scotland) (Con)

I close on behalf of the Scottish Conservatives with a sense of sadness that this debate was ever necessary, but also with some hope that we in this Parliament are taking some meaningful steps in our efforts to tackle something that is all too prevalent in our society. The cabinet secretary and Margaret Mitchell opened the debate very eloquently by setting out the reason why we are discussing this issue and highlighting the importance of getting this right and ensuring that what is enshrined in law is enforceable and can protect the victims we are seeking to protect.

A victim once described to me the insidious nature of domestic abuse. It picks away at a person’s confidence, often in small ways at first, so that the person does not even realise that they are being drawn into an abusive relationship—until one day, they look in the mirror and it is not them looking back any more. Their confidence is supplanted by doubt and their freedom is enveloped by chains, because psychological manipulation is an evil and systematic poisoning of the soul. Our present law is not sufficiently expansive to enable what the COPFS has described as

“the effective prosecution of psychological abuse and controlling and coercive behaviour”

that

“may ... undermine a victim’s character, restricting a victim’s autonomy and freedom and their ability to live their life in the manner they choose.”

However, the bill bridges that gap, and I commend certain elements of its construction. First, I welcome the bifurcated test in section 1(2)(a), which will allow the court to take account of any particular circumstances or vulnerabilities of the victim that might be preyed upon, irrespective of whether the behaviour in question would be likely to cause harm in the view of the objective “reasonable person”.

I am also supportive of the inclusion of a recklessness test in determining mens rea in section 1(2)(b). That is appropriate—indeed, essential—because a perpetrator of domestic abuse can be devious and skilled in manipulation. They might present their conduct in a manner that, at least superficially, suggests that they did not intend to cause harm and therefore did not meet the requisite standard of mens rea. Importantly, the bill closes that particular back door, allowing effective policing of the specific characteristics of those who control or coerce victims.

I also support the statutory aggravation of the offence in section 4, which takes into account the harm caused to a child who is exposed to an abusive environment in which access to a child and interaction between the victim and their child are restricted. I whole-heartedly support the calls that were made by many members, including Sandra White, Kezia Dugdale and Claire Baker, that we ensure that the welfare of children who are caught up in domestic abuse is thoroughly explored as the bill goes through its various stages.

However, as my Conservative colleagues have highlighted, we have some significant reservations about the drafting of the bill. We are highlighting those reservations not because we do not want the bill to proceed through its stages or to be passed but because we think that it is vital to ensure that anything that we put into statute is enforceable.

Maurice Corry noted calls for a publicity campaign to be run in conjunction with the bill’s enactment, and, thereafter, for awareness raising of the issue of coercive control and its criminalisation. I add my support to such moves; indeed, Kezia Dugdale, too, echoed those calls. Ben Macpherson made the good point that the bill’s passage through Parliament will itself draw attention to domestic abuse issues and many pieces of good work in that respect are already being undertaken, but that does not mean that we cannot go further. One of the things that we should look at is the provision of early intervention and prevention services for young people displaying any signs of problematic behaviour in this context.

Gordon Lindhurst highlighted the concerns of academics and police officers that there is a substantial risk of lowering the threshold of criminality due to the ambiguity of the word “distress”. We must therefore proceed with caution, so as not to open the floodgates to vexatious litigation, because that in turn could undermine the cases of victims who really need support and, eventually, a prosecution.

I fully endorse Liam Kerr’s comments and our advocacy of trialling the one family, one judge approach that has been adopted in various countries. That could be a vital ancillary means of streamlining the system and ensuring that victims are not forced to relive the experience time and again.

We have heard many contributions about the importance of the bill, not one of which was invalid, but I would like to pick up on a couple that really struck me. Mairi Gougeon made a powerful contribution on non-harassment orders. She pointed out that only 6 per cent of convicted cases include a non-harassment order and that somebody who is convicted can walk out of court and go back to the victim’s home. That highlights the issues that we face as we take the bill through Parliament. We must ensure that the legislation that we put in place effectively gives the protection that women crave.

I do not take away from any of the points that have been made in any shape or form but, as we close the debate, it is important to say that, although the principles that underpin the bill are sound, we now need to make sure of the details. As Fulton MacGregor highlighted, we have five parties working together on the issue and we are in agreement, but we need to nail down the details as the bill goes through its various stages. I join Fulton MacGregor in saying that we should now work together to amend and improve the substantive elements of the bill. We must address the concerns that have been outlined to ensure that the right balance is struck between the protection of victims and due process in our courts.

There will be differences of opinion and further debate and discussion, but there should be no doubt that the Scottish Conservatives and, I hope, the whole Parliament will not waver in our drive to effectively legislate against and prosecute domestic abuse in all its forms. We are working to eradicate the scourge of domestic abuse. I agree with Kezia Dugdale that we will probably never eradicate it, but there is a process, and the bill represents another step forward in that process, so we should take it forward whole-heartedly.

Michael Matheson

I am grateful to members from across the chamber for their comments and for the cross-party support for the general principles of the bill. As I said in my opening remarks, it is unique in that we are seeking to criminalise a course of behaviour, which is novel in Scottish law and to an extent in law in the UK as a whole, as it differs from the approach that has been taken in England and Wales.

I will return to that, but I first turn to whether we have set the bar in the bill at the right level, because that is pretty fundamental to the bill’s effectiveness. I am concerned that some who believe that the bar has been set too low are overlooking the protections that are built into the bill to ensure that we strike the right balance. I therefore want to be clear about how the offence will work and about the three conditions that must be met for the offence to be brought into play.

The first aspect is that the accused must engage in

“a course of behaviour which is abusive of”

their partner or ex-partner. Further, it must be the case that

“a reasonable person would consider the course of behaviour to be likely to cause”

the partner or ex-partner

“to suffer physical or psychological harm”,

and that the accused intends the course of behaviour to cause their partner or ex-partner to suffer such harm, or they are

“reckless as to whether the course of behaviour causes”

such harm. It is important to remember that the test of whether the accused’s behaviour is likely to cause the victim harm applies to the whole abusive course of behaviour and not to whether a single instance of behaviour caused such harm.

Several members, including Gordon Lindhurst, Liam McArthur and Michelle Ballantyne, referred to the threshold of distress in the definition of psychological harm. We believe that distress is the appropriate level. How will courts decide how to interpret distress and how will they take it into account? In reality, courts will turn to the dictionary definition of distress.

“Distress” is not synonymous with mere upset or annoyance. The “Concise Oxford English Dictionary” defines “distress” as meaning “extreme anxiety or suffering”. That is exactly why the Crown Office and Scottish Women’s Aid have said that that is where the threshold should be set. They see extreme anxiety or suffering as being key to bringing the offence into effect. With those three criteria and the threshold of distress, we have arrived at our position, which I believe to be the right threshold.

I turn to several other issues that members such as Kezia Dugdale, Claire Baker and Mairi Gougeon raised in relation to the protection of children and non-harassment orders. The committee suggested that we should extend the provision of NHOs to children and I can confirm that we will lodge amendments to do that. That extension of NHOs will sit alongside the mandatory provision that courts will have at the time of sentencing to take into account such orders.

Members raised the issue of the interaction between our criminal and civil law—Kezia Dugdale in particular raised that—and ensuring that the way in which our justice system operates is comprehensive and holistic. When children are involved, the centre of our system should be the fact that the child’s interests have paramount importance.

As Mark McDonald mentioned in March, through the review of the Children (Scotland) Act 1995, we will consider providing for a specific measure on domestic abuse in relation to children and a specific offence within that. The review process will allow those with an interest to help us to shape that effectively to reflect a modern understanding of how domestic abuse impacts on children and their welfare.

Kezia Dugdale

The cabinet secretary’s remarks on that point are much welcomed. However, does he recognise that, as much as the procedure might work well, the reality is that we will need appropriate resources to ensure that it works for families?

Michael Matheson

I fully recognise that. Over the past three years, the justice sector has been provided with an extra £20 million to support speeding up the process so that domestic abuse cases are dealt with much more quickly in court. We have made significant progress on calling cases at an earlier stage. I recognise the need to ensure that there is sufficient resource.

Kezia Dugdale referred—as did others—to the child contact process being used and manipulated by individuals to inflict greater harm on someone who has experienced domestic abuse. As part of our modernisation of family law, we have given an undertaking to consider mechanisms and processes that can be put in place to prevent that from taking place and to prevent abuse of the system.

A number of members have raised the possibility of running a publicity campaign about the legislation. I assure members that we will do exactly that. We will build in a publicity campaign to ensure that there is greater awareness about domestic abuse and the new provisions in the bill.

John Finnie was on the money when he talked about how the police will respond to the new legislation. Their response to domestic violence has changed dramatically not just in the past 20 or 30 years but in the past 10 years. We now have cases in court where one complaint from one individual has resulted in three or four complaints from other individuals, because of how the police trace back the issues. I am confident that, with the right support and the right training, Police Scotland and our officers, with their professionalism, will see the implementation of the legislation through.

Kezia Dugdale said that domestic abuse will continue to blight our society while we continue to have inequality in our society. The reality is that domestic abuse is a product of social and gender inequality in our society. The justice system can do only so much to tackle that. I am not deluded to the point that I think that the bill will end domestic abuse. However, it will support women who have had to suffer the misery of coercive and controlling behaviour over many years—in some cases, over decades—and show that the Parliament recognises their plight and that we are determined to do everything possible to bring the perpetrators of such misery in too many households to account through our criminal justice system. This bill will support and assist us in achieving that.

The Presiding Officer (Ken Macintosh)

The next item of business is consideration of motion S5M-07708, in the name of Derek Mackay, on the financial resolution on the Domestic Abuse (Scotland) Bill.

Motion moved,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Domestic Abuse (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.—[Michael Matheson]

The Presiding Officer (Ken Macintosh)

We come to decision time. Two questions are to be put. The first question is, that motion S5M-07905, in the name of Michael Matheson, on stage 1 of the Domestic Abuse (Scotland) Bill, be agreed to.

Motion agreed to,

That the Parliament agrees to the general principles of the Domestic Abuse (Scotland) Bill.

The Presiding Officer

The final question is, that motion S5M-07708, in the name of Derek Mackay, on the financial resolution on the Domestic Abuse (Scotland) Bill, be agreed to.

Motion agreed to,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Domestic Abuse (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.

The Convener

Item 3 is a stage 2 evidence-taking session on the Domestic Abuse (Scotland) Bill. I refer members to paper 6, which is a note by the clerk, and papers 7 and 8, which are SPICe papers.

I welcome our witnesses: Gillian Mawdsley, policy executive at the Law Society of Scotland—whom I particularly thank for standing in at the last moment for Grazia Robertson, who had to attend court; Detective Superintendent Gordon McCreadie, who is in public protection at Police Scotland; Dr Marsha Scott, chief executive of Scottish Women’s Aid; and Professor Mandy Burton, from the school of law at the University of Leicester. I thank the witnesses for providing written submissions, which were really helpful for the committee, as always.

We will move straight to questions, starting with John Finnie.

John Finnie (Highlands and Islands) (Green)

Good morning panel, and thank you for your submissions. I want to talk about the current powers, and my initial question is probably for Detective Superintendent McCreadie. I want to ask about investigation, prosecution and perhaps one other point. When police officers are investigating allegations of domestic abuse, in what circumstances might alleged abusers be detained in police custody until first appearance in court, and when might they be released on undertakings with conditions that exclude them from the victim’s home?

Detective Superintendent Gordon McCreadie (Police Scotland)

Currently, where there is a sufficiency of evidence after officers have conducted thorough inquiries, there are primarily two options available. The first is to charge somebody and keep them in custody. A risk assessment will be undertaken against quite strict criteria that are laid out in the joint protocol with the Crown Office and Procurator Fiscal Service and informed by the Lord Advocate’s guidelines, and where there is a sufficiency of risk they will be kept in custody. Currently, about four out of five persons with sufficiency of evidence are kept in custody to appear in court. Affording somebody an appearance in court allows the court to impose bail conditions, which leads to police enforcement of those bail conditions and affords a victim some protection and space to breathe.

The second option involves undertakings. Where the risk assessment is carried out and there is a belief that the risk to the victim is on the lower side of the scale, and certain criteria are met, we can release an accused person on an undertaking to appear in court approximately 14 days after charge, so there is some due diligence and speed associated with that. That affords us the opportunity to impose police bail conditions to inhibit or exclude a person from making contact. Police bail conditions have an impact that is equal to the court bail conditions—it is a criminal offence to breach them. Where there is sufficient evidence, we currently have powers to act.

John Finnie

You mentioned risk assessments. Are those generic risk assessments or are they specific to the circumstances in which the individual has come to the attention of the police?

Detective Superintendent McCreadie

There is a domestic abuse risk assessment; in Police Scotland that is known as the domestic abuse questions, or the DAQ. It is based on academic research and ties into many of our partner agencies’ risk assessment models. It informs us about the risk that the victim may face and takes account of circumstances in which we know that there may be an escalation. For example, we know that pregnancy or recent childbirth is a good indicator that a victim may be at increased risk and that if strangulation is used it shows a clear intent of harm towards the person. There are other academically informed questions that make up that domestic abuse risk assessment.

John Finnie

Do any other panel members want to comment on that?

Dr Marsha Scott (Scottish Women’s Aid)

I will add to what Detective Superintendent McCreadie has said. There are measures that can be taken when the police are involved and those are fairly robustly undertaken in Scotland. However, it is important to point out that the requirements for emergency barring orders under article 52 of the Istanbul convention, as well as some of the surrounding information in the document on emergency barring orders in situations of domestic violence, point out that EBOs should not be restricted to cases of high risk.

The confidence that we, as an organisation that works with victims every day, have in the DAQ is framed by the fact that it is only a risk assessment. It is based on academic evidence that has to do with predicting the murder of women, which is a horrific event but which makes up quite a small percentage of the harm that is done to women and children in the context of domestic abuse. It is a useful tool but not a panacea for preventing risk.

The key point that is made in the Istanbul convention is that EBOs should be seen as a tool to prevent harm as well as something that should be used in the context of a crime already having been committed. The hands of the police are somewhat tied by having to focus on whether a crime has been committed, whereas an EBO can be used in a wider context.

John Finnie

There will probably be more detailed questions on that aspect later.

Rona Mackay

My question is for DS McCreadie on bail and risk assessments. How successful are those risk assessments? Does it work out most of the time?

Detective Superintendent McCreadie

It is very difficult to say. We know that it can prevent escalation in some cases. Ultimately, given that it is a risk assessment, there is always an element of risk.

Rona Mackay

It is not an exact science.

Detective Superintendent McCreadie

No, it is not. We can mitigate risk and that is probably one of the most important things that we do with a victim of domestic abuse—we do victim safety planning and put in place a trigger that will help protect them and prevent them from coming to further harm. However, there is always a degree of risk.

Rona Mackay

I just want to get an idea of the scale of the success rate.

Detective Superintendent McCreadie

We carry out domestic abuse bail checks. When a perpetrator has been released from police custody, we will visit the victim within 24 hours, signpost them to appropriate services and ensure that some support mechanism is in place. Where possible, we will carry out a check of the premises to ensure that the perpetrator is not present. We know that 3 per cent of those visits convert to a crime being detected, so in 97 per cent of cases we can suggest that, in the first 24 hours, that bail condition is operating effectively.

Stewart Stevenson

I just want to ask the detective superintendent a question about police bail. We are looking at domestic abuse here. I take it that when there is police bail with conditions—conditions that are designed to protect the victim—the victim will be told what those bail conditions are?

Detective Superintendent McCreadie

Yes. It is explicitly clear that the victim must be informed about the bail conditions, primarily so that, if the perpetrator is seen outwith their premises, they know that that is in breach of bail; we hope that it affords the victim a sense of comfort and security and allows them to plan to get appropriate support or to take whichever steps they feel are necessary to move forward in their own particular circumstances.

Stewart Stevenson

Is that a general thing that the police would do when there are bail conditions to protect an individual, outwith domestic abuse but in other similar circumstances? I ask that because I have experience of a case where it was only when it went to court many months later and the fiscal told the victim that it became apparent that bail conditions had been in place.

Detective Superintendent McCreadie

The victim information and advice service is part of the Procurator Fiscal Service. Where a person appears at court, they are notified of bail conditions. The police are particularly crucial in cases of domestic abuse but, ideally, any person who is protected by bail conditions should know.

The Convener

I think that I have probably allowed supplementaries that have pre-empted some of what you were going to ask, John, but do you want to carry on?

John Finnie

This is perhaps a question for Ms Mawdsley. In a situation in which the decision has been taken to prosecute someone, in what circumstances might they be remanded in custody after appearing—perhaps we are not talking about the first appearance in that case—or released on bail with conditions excluding them from the victim’s home? What are the factors surrounding that?

Gillian Mawdsley (Law Society of Scotland)

The first thing to say is that, obviously, the police will report a case to the procurator fiscal. With, for instance, the perpetrator in custody, the fiscal has to make an assessment of the information that has been supplied to ensure that there is a crime known to the law of Scotland plus sufficient evidence to proceed with a complaint or a petition, depending on whether it is solemn or summary.

At that stage, the case will call in court, be it petition or summary, in front of a sheriff and the Crown will, looking at the factors, decide whether to oppose bail. The question of bail will be a matter for the sheriff. That is the outline of the procedure with regard to the hearing.

You asked specifically what sort of factors would apply when bail is being considered. There are standard conditions of bail, which are that the person does not approach or interfere with witnesses, that they turn up at court on specific dates and so on—there are about five or six standard conditions that are imposed in every situation when someone is granted bail from a court case.

However, if someone is going to be granted bail in a domestic abuse case, I would normally expect to see additional or special conditions. Those special conditions will vary, but they will normally include the condition that they do not approach the victim; other conditions may well be that they do not enter a particular street or attend a particular locus. These conditions will be spelled out in full and, invariably, if bail is being granted, the sheriff will ensure that all the bail conditions have been spelled out and will also explain the additional or special conditions. I say that because the question of approach or contact can be misunderstood by people. Contact means contact by any means, including social media and texting. The person will not be granted bail unless they accept those specific conditions. That is with regard to when bail is being granted.

Clearly, if bail is being opposed, it may be opposed for a number of reasons—the person’s record, the number of times that he has failed to turn up at court, the seriousness of the offence, or the likelihood of reoffending. A number of factors will be put forward to support opposition to bail. From the perspective of the defence, for the perpetrator, points may be put forward as to why bail should be granted. Ultimately, it is for the sheriff or the judge to decide whether bail will be granted.

Obviously, if bail is refused, he will be remanded in custody pending trial and there are clearly time limits for summary trial petitions and solemn cases. If, however, he is granted bail and the Crown is opposed to that, it might well seek to lodge an appeal and he will be kept in custody until that appeal can be heard by the sheriff appeal court. Does that cover some of the information that you were looking for?

John Finnie

It does indeed.

Dr Scott

That was a comprehensive description of what it says on the tin, but women and children routinely tell us that there is a bit of a postcode lottery in Scotland when it comes to whether special bail conditions will be applied and the robustness of the response when they are breached.

As with EBOs, we do not think that any criminal justice intervention will fix an entire problem, but we are advocating for multiple tools in the toolkit.

A problem that we see regularly is the belief that there is a risk only when the victim and perpetrator are cohabiting. If people are not living in the same house or flat, it is often assumed that the risk is diminished and the courts are much less likely to be robust about either special bail conditions or breaches. However, as I am sure you all know, the highest risk of murder of women and children occurs when people are not living together or when the woman is seeking to leave the relationship.

It is very important that we have emergency mechanisms to protect women and children in their own homes. One of the conditions would be to look at where there are legal and police gaps at the moment, and EBOs might fill one of them.

Professor Mandy Burton (University of Leicester)

The threshold for making bail conditions might require that there is a history of violence between the parties, whereas the idea is that you could have an emergency barring order even when there is not a history of violence. The threshold for bail conditions can be higher than for an emergency barring order.

John Finnie

I have a general question for everyone on the panel. Does the existence of children as a result of the relationship complicate any of the decision making that we have discussed?

Dr Scott

You have all heard me talk quite a bit about the influence of keeping children safe on women’s decision making and the need to see children as victims of domestic abuse. We recommend that any barring order would need to cover the children and that the barring order would need to be seen as part of a suite of protection orders that would cover children’s domestic environment as well as when they are in school settings or other kinds of settings.

We know that some EBOs in Europe do not cover children—

John Finnie

But setting aside what we will come on to, under the existing arrangements does the fact that there are children alter judicial decisions or police decisions?

Dr Scott

There is quite a bit of evidence that courts are reluctant to interfere in custody and visitation arrangements and so might be less likely to impose sanctions in which perpetrators no longer have access to their children. However, with a temporary order, the balance of rights in this situation should come down on the side of safety.

Detective Superintendent McCreadie

The police are very mindful of the safety of children, but when a child is not a direct victim of the crime, we know that there is a debate about access and we have to be mindful of that. We have heard some conflicting opinions in the past. However, where there is concern for the immediate safety of the child, the police will impose bail conditions that reflect that, if that course of action is available to them as a result of a sufficiency of evidence.

Gillian Mawdsley

I echo the point about bail conditions. The additional bail conditions that can be imposed can specifically state the names of children. A general bail condition would also be that the person does not interfere with witnesses and, quite often in domestic abuse cases, it is the children who have witnessed the abuse and may be required to give evidence.

Mairi Gougeon

I have a supplementary question about emergency barring orders, including those covering children, which Dr Scott touched on. Are there examples of such orders in other countries? If so, how are they operating? I wonder whether Professor Burton has any information on that.

Professor Burton

Austria is the European country that has had emergency barring orders for the longest time—it has had them since 1997. When the orders were introduced, they applied only to the adult victim and the place where she lived. However, more recently, they have been extended to places where the children go, such as childcare centres and kindergartens. That is a specific acknowledgement that it is not just where the adult victim lives and goes that needs to be covered; it is also where the children go and where the carers go to collect the children. There are models in Europe of orders covering both the adult victim and the child victims of abuse.

Mairi Gougeon

Thank you.

The Convener

Mary Fee has a supplementary question.

Mary Fee

I would like a brief clarification from DS McCreadie on the point that he made about the importance of protecting children. How do you determine the level of risk for a child who has not been directly subjected to some sort of violence? Do you carry out a risk assessment? How do you determine the level of risk that a child faces?

Detective Superintendent McCreadie

Police officers make a professional judgment. There is also a significant concern review. A report is submitted on the circumstances of every domestic abuse incident that the police attend, and that report is reviewed by professionals to assess the level of risk. If there is any immediate risk, the police will act at the time to mitigate that risk as best they can. Each incident that we attend is subject to subsequent scrutiny in which the wider circumstances of the case are considered.

Mary Fee

If there is no immediate risk to the child, how long will it take to review the report and make a further determination?

Detective Superintendent McCreadie

I would expect that to be done the next day.

Mary Fee

Thank you.

Liam McArthur

I want to pursue John Finnie’s line of questioning. I think that I know the answer to this question, but I will ask it anyway. Realistically, could the powers that are currently available to the police and the criminal courts be amended to plug some of the gaps that have been identified?

Detective Superintendent McCreadie

We look to England and Wales, as we often do, where domestic violence prevention notices are implemented by a superintendent or above and are followed by domestic violence prevention orders. Nevertheless, Police Scotland welcomes the discussion, as we have concerns about the specific legislation involved. Although a victim’s safety is critical, the legislation imposes a significant financial burden on the services in England and Wales—I am talking about a figure in the region of £1,000 per order. The timeframe in which a superintendent can authorise such action is also very short—it is 48 hours for a domestic violence protection notice—and that places a burden on the police.

If we were to go down the route of seeking to fill the gap through legislation, we would recommend that the financial impact be considered. I am talking not just about the process of going through the courts but about the administrative burden. We would probably need increased legal services.

Liam McArthur

I take it that, to your mind, a variant of a barring order is essential to plug an existing gap, albeit that you have concerns about how such an order would apply—the duration, the threshold and the cost that would be incurred.

Detective Superintendent McCreadie

As I have outlined, where we have a sufficiency of evidence, we currently have the necessary powers. However, where there is no sufficiency of evidence, the police find themselves working with third sector organisations to ensure the safety of the victim and mitigate risk, and, on a very small number of occasions, that may displace a victim from their home address. Whether there is a need to legislate is a matter for the committee. It is worth noting that there would be an administrative burden on the police, but the police may not be the only competent authority that the committee decides to authorise to seek an EBO if it is so minded.

Liam McArthur

Do other panel members have a view on that?

Dr Scott

Our concern is that all the existing mechanisms depend on women or on victims to carry the burden of establishing whatever the mechanism is for protection. Sometimes there is a financial cost to them, and we have libraries of evidence that the existing provisions are not used, for a variety of reasons. Trying to fix something that is not working in the first place is possibly not the best route forward. What we are looking for is a mechanism that would be significantly different, in the sense that women would be offered the opportunity to say yea or nay but would not be responsible for making it happen in an emergency situation, as they are under the existing provisions.

Liam McArthur

You have argued for having a suite of measures, and Professor Burton has talked about the lower threshold that allows EBOs to apply in circumstances that do not apply in relation to the current powers. However, there have been examples of EBOs being operated in such a way that the victim does not have a great deal of control over how the EBO is applied, which would to some extent counter what you have said about the advantage of an EBO being that it takes some of the pressure off the woman or the victim.

Dr Scott

We come down on the side of asking women’s permission. That is because there is a fair amount of evidence—Professor Burton can probably give you the citations for this—that women are the best predictors of further harm. They are not good at predicting their own murder but, short of that, they can predict further harm. For perpetrators who are not likely to abide by the law, investing in a measure that requires them to do so is, in some victims’ minds, a waste, and it makes other people think that they are safe when they know that they are not, so we think that it is an important mechanism that needs to be in place. However, I am also mindful that there is a broad discussion about EBOs and that, of the EBOs that exist across Europe, some require women’s consent and some do not.

Professor Burton

Many EBOs do not require victims’ consent, and leave it to the police to consult victims but to have their views as non-binding, because there may be some instances where the competent authority takes the view that it is in the interests of the victim for an order to be made, even though it is not what they express their view to be. However, there is a great difficulty with the enforcement of emergency barring orders if they are made without the victim’s consent, because in order to enforce an order you would normally need evidence of a breach, and you will not get evidence of a breach unless a victim comes forward, unless you have some other proactive way of monitoring compliance, such as electronic tagging of the perpetrator. In practice, although many European countries do not require the consent of the victim for the making of an order, in reality the co-operation of the victim is required to enforce it.

Liam McArthur

That is not inconsistent with the bill as a whole, where it is recognised that simply waiting for a complaint from the victim before acting needs the necessary trigger and that, in some instances, the victim will be almost the last person to acknowledge that there is a problem that needs to be addressed. In that respect, those shortcomings of the EBO are not inconsistent with other aspects of the bill.

Professor Burton

The EBO has a significant advantage in that it does not rely on the victim having the financial or other resources to seek protection on their own behalf. Of course, there are resource implications and the resource issue shifts around the system. It shifts to the police, who then have the administrative burden of doing it, but the victim does not have to have the financial or other resources to get the protection.

Liam McArthur

As well as responding on that issue, will the panel address the concern that EBOs might be abused? Is that a risk that you recognise? If so, what would the risks be?

Gillian Mawdsley

Taking it one step back, I endorse what Detective Superintendent McCreadie said. If there is a gap, it is clearly a matter for the committee to decide how to address that. There could be a gap where there is an insufficiency of evidence. That is all that I would say on that issue.

Criminal justice is about to change with the provisions that will come into force in January. They will give the police additional powers of investigative liberation, which Detective Superintendent McCreadie has spoken about. I am not sure what the implications of that could be seen to be in the complex landscape of dealing with domestic abuse.

If the committee is minded to introduce some kind of order, we stress the importance of a determination as to whether it goes down a criminal or a civil route. Looking at the issue from the point of view of immediacy, we have a concern about the period of time before there could be a judicial or independent review of any measure or power that came into force. If a power came into force such that a perpetrator was prevented from going back, how soon would that be subject to an independent review by a judge or a court measure?

One thing that I propose is that, where sheriffs are on call to deal with warrant applications over weekends and other periods, a court process be devised for situations where there is insufficient evidence to proceed or there is an imminency of risk.

Related to that is the question of technology and the administration of whatever online procedures are made available. I do not know what the risk is of those being abused. Clearly, we have problems with bail conditions at the moment. Even where they have been imposed, I am aware of circumstances where the person has been allowed back in breach of them.

That is really all that I can say. I will be happy to supply further information, but I am not sure that we are in the best position to give information about likely abuse, other than to say that we are aware that people can change their minds. Indeed, people can be back together again before the police can even go and tell them about the bail conditions. However, Detective Superintendent McCreadie might be in the best position to comment on that.

Detective Superintendent McCreadie

On people abusing conditions, we have to acknowledge that domestic abuse is a complex circumstance that involves controlling behaviours. Many members of the public would accept they do not understand the complexities, but we see them regularly in the service. We look to the third sector to support victims over the longer period—to inform them of their rights and the fact that they are subject to domestic abuse, and to support people in changing their mindsets if they are in fact victims.

Liam McArthur

It was more about the misuse of EBOs, rather than the abuse of the terms either of bail conditions or of EBOs.

Is 48 hours a reasonable length of time before there has to be court oversight of EBOs, or should we be looking at something significantly longer than that?

Detective Superintendent McCreadie

Domestic abuse already takes up at least 20 per cent of our operational policing time, so it is a significant commitment. We attend a domestic incident every nine minutes. The bill is likely to increase the powers that are available to the police and the offences that are available for charge, so that burden is likely to increase.

If the committee is minded to legislate on the matter, we would ask that any administrative burden be as light as possible. I acknowledge the suggestion about the use of an on-call sheriff, which is not dissimilar to what we do for urgent warrant applications. However, I guess that that is for the committee to consider.

Professor Burton

The evidence is that 48 hours is not enough. England and Wales have one of the shortest durations of police-issued orders, and those are between a week and one month.

Liam McArthur

Is that in situations where the police are making the initial decision?

Professor Burton

Yes, that is when police are making the order. The pilot study of emergency barring orders in England and Wales suggested that the reason why the longer orders were not being applied for was that the police found the process too bureaucratic and the time constraints were too great. It was recommended for England and Wales that the period of the police-issued order be extended to four to seven days, because 48 hours is not enough.

Dr Scott

On the question about where EBOs are abused, as far as I know—after I did a little check with our academic expert, Professor Burton—we have no evidence of significant or systematic abuse of EBOs. It is important for us to put that issue to the side.

It is also really important that we think of EBOs as something that constrains the behaviour of perpetrators or accused and abandon the notion that victims should be somehow held responsible for allowing or not allowing perpetrators back in.

The complexity of decisions about the safety of women and children and of their responses to perpetrators is often not visible on the surface. However, the qualitative evidence on how women make decisions about whether to take a man back shows that those decisions are very often based on an assessment that the rest of the community will not protect the woman.

John Finnie

Detective Superintendent McCreadie, I was a bit concerned that you used the word “burden” in your contribution. I know that Police Scotland takes a very robust approach to domestic violence and that it has changed considerably over the years. However, reticence about additional power is not normally what we hear from the police service.

If there were powers that were better able to control offenders and that would reduce the likelihood of the repetition of offences—clearly, as part of a wider education programme—would you see a benefit connected with having those powers?

Detective Superintendent McCreadie

Whether orders limit recidivism has been a matter of limited scrutiny in England and Wales and possibly beyond in Europe. However, I am probably not the best person to comment on that point.

In respect of your comments about burden, you are absolutely right. For clarity, we are talking about that in an administrative and financial sense. Police Scotland absolutely welcomes the discussion on victims’ safety. We already work very closely with partner organisations to reduce the harm that is caused by domestic abuse.

John Finnie

But surely a preventative approach—and you could view some of these measures as a preventative approach—will ultimately reduce the administrative and financial burden, as you describe it, in the future.

Detective Superintendent McCreadie

Yes, but the EBOs would fall under the category of secondary prevention, because in all likelihood we would use them when we knew that an offence either was escalating or had been committed. Ideally, as a community, we would want to focus on primary prevention but, as a service, when we become involved, we need the powers that are necessary to protect the public.

Currently, where there is a sufficiency of evidence, we believe that we have those powers. We recognise that, where there is an insufficiency of evidence, we have no power to exclude a person from their home.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

Before I ask my main question, I want to pick up on points that Mairi Gougeon and Mary Fee mentioned earlier and to get a bit of clarity from DS McCreadie.

When there is a charge of domestic violence against a perpetrator and a child is involved, is it your understanding that the child is referred to social work and the children’s reporter as a matter of course?

Detective Superintendent McCreadie

Reports will be submitted and shared with appropriate services, including social work, when children are present.

Fulton MacGregor

Is it also the usual standard to refer such an instance straight to the children’s reporter?

Detective Superintendent McCreadie

In fairness, I will have to check the current process and come back to you on that question.

Fulton MacGregor

Thanks. My understanding is that that is the case, but I thought that it would be useful to get it on the record.

I will ask my main question. Might the introduction of EBOs remove in any way the focus from pursuing prosecution of domestic abuse? Panellists can give a quick answer if they want.

Detective Superintendent McCreadie

Police Scotland is committed to enforcement and trying to reduce the harm that domestic abuse causes. We have a tiered structure in local policing, with an escalation to divisionally based domestic abuse investigation units. The top tier of our response is the domestic abuse task force, which we commonly describe as dealing with the worst of the worst. We are committed to enforcement and that has been outlined since the inception of Police Scotland. I for one do not see that changing.

Dr Scott

Our caveat around our obvious general support for EBOs is that it is very important that we learn from the not very positive experience of the current response that many of our services in England and Wales have had. The feedback that we are getting is that police and other actors in the community see the presence of a protection order as meaning that the job is done. As you are alluding to, that might in fact dilute the robustness of the criminal justice response, so we are very clear that we would not see the presence of such a protection order as intending to inhibit in any way the gathering of evidence, the putting of cases to the Crown Office or prosecution.

In fact, if we have another mechanism for allowing other actors in the community to help provide a plan and safety, the evidence that would be gathered in an appropriate context would be more helpful to a prosecution case. I think that there is some evidence on that in the research that Professor Burton did.

Professor Burton

Yes. It is very clear that emergency barring orders are meant to supplement rather than replace criminal law, but there is concern that they might be used as a replacement.

In Germany, which, being a federal state, has various models, there is some suggestion that, after the introduction of emergency barring orders, the criminal justice response became less robust and cases were not built as strongly. There needs to be monitoring when emergency barring orders are introduced, to ensure that they are used as a supplement rather than a replacement.

There is not that much evidence yet from England and Wales. When the evaluation was carried out, it was only of a short period. We do not know whether protection orders are being used as a replacement rather than a supplement, but that is certainly a concern that ought to be taken into account.

Gillian Mawdsley

The point to stress is that if a crime has been committed, however that crime is defined in the bill, and there is sufficient evidence, the criminal justice system will proceed on the basis that it does at the moment. There are safeguards in respect of bail conditions that can be applied. Emergency barring orders come in when that position cannot be achieved: when there is not sufficient evidence by corroboration or sufficient evidence to constitute a crime. Emergency barring orders would be a route or a measure to deal with such gaps.

Remember that, as has been alluded to, there other existing civil measures, regardless of how effective they are. Interdict and the non-harassment orders exist in parallel to the criminal law system, and they do not diminish the domestic abuse prosecutions that take place at the moment.

Fulton MacGregor

Those were quite useful responses.

Finally, does the panel have any thoughts on how EBOs might be used in situations where a person is not being investigated or prosecuted for domestic abuse?

Dr Scott

I do not think that I got the whole question.

Fulton MacGregor

How might EBOs be used when a person has not been prosecuted for domestic abuse? I suppose that that is the reverse of my previous question. The evidence might not be sufficient to prosecute, but it might be sufficient for an EBO. The person might not be being prosecuted for domestic abuse, but the agencies, such as Women’s Aid and social work, might say through multi-agency planning that there is concern.

Dr Scott

If EBOs can be made in the context of risk and not just following the commission of a crime, a compelling reason to consider them is that they may serve as a deterrent, particularly if they are of sufficient length for a safety network to be put in place. That goes back to my earlier response. For those accused people or perpetrators who will abide by the law, an EBO may be a deterrent of some strength. At the moment, we rely on a crime having been committed and sufficiency of evidence, but an EBO can be a broader and more preventative mechanism.

Professor Burton

An EBO may be more effective at getting victims to engage with support services, particularly if the process of making an emergency barring order includes a referral to support agencies that the victim would not have contacted otherwise.

Maurice Corry

Do you support the inclusion of EBOs in existing civil court orders?

Gillian Mawdsley

If there is a perceived gap, emergency barring orders in some shape or form can be useful. I stress again that the choice of sanction—whether civil or criminal—is for the committee to think about. My slight concern is about the complexity and the interaction with other forthcoming changes in the legislative process of which the committee is fully aware.

I also draw your attention to article 57 of the Istanbul convention, which relates to the provision of the legal representation and advice that would be required for both parties.

Detective Superintendent McCreadie

The police welcome the discussion. I have concerns about the pace at which the issue may need to be progressed in order for it to be included in the Domestic Abuse (Scotland) Bill, given that there is no recognised model that would fit naturally with Scots law. It would be subject to lengthy discussion, as it would be important to get it right in the first instance.

Dr Scott

I am a fan of getting it right the first time, but I know that Scottish Women’s Aid and our allies in the domestic abuse world have been calling for such measures for more than five years. I am concerned that the window of opportunity that the bill provides will close and that we will spend another five years debating how to get it exactly right. I agree with Detective Superintendent McCreadie that there is strong evidence about how we might get it wrong, which we must pay attention to. However, women and children would urge you to take this opportunity.

Professor Burton

From an academic perspective, I consider purely the research evidence from other countries. No one model can be transported to any other jurisdiction, but there is enough evidence from European countries, including research from England and Wales, to show that EBOs can be effective. If you get the process around them right, they can be a useful supplement to the existing criminal and civil justice responses.

Mairi Gougeon

I want to pick up on Marsha Scott’s point. Everybody around the table recognises that we have an opportunity; we want to take more evidence, as we think that it is a vital issue that we should consider.

I also want to touch on Professor Burton’s point about there being not just one transferable model that we can pick up and implement. I read her submission with great interest, as it is really interesting to see how models in other countries work. If the committee decides to take the matter forward, we will have to look at what model we would like and where we will go next. Even though there might not be one automatically transferable model, is there a particular model that we should aspire to and aim for in Scotland?

Professor Burton

I do not think that there is any one model to aim for. You can pick elements from different models and learn lessons in that way about, for example, what the duration of the order should be, what the level of authority for making an order should be and what the time length of the order should be.

No country gets all the elements right, although Austria is often held up as a particularly good example. In Austria, the duration of orders is two weeks and they can be extended to up to four weeks if the victim applies for a longer order under the civil law, like an interdict in Scotland, for example.

Another feature of the Austrian model is that there is funding for referral to support services, which enables the victim to get the support that they need to apply for the longer-term protection. However, we should not see emergency barring orders as a complete solution, as the victim might still need additional help to navigate the civil or criminal justice system.

The level of authorisation should not be set too high. Although we have to acknowledge perpetrators’ rights and interests, the overriding feature of emergency barring orders is protection of the victims, including children who are victims of domestic violence. The right to life and the right to be free from inhuman and degrading treatment are more important than, or are superior to, the right to property. Emergency barring orders are anyway only a temporary interference with property rights.

If we are looking to take forward such a provision in Scotland, although there is no one model to aim for, we can look at the issues that arise from how the orders operate in other countries and address those points.

Mairi Gougeon

Absolutely. One of the benefits of addressing the issue now in Scotland is that there are other models to look at. We can see what the best operating elements of those are and implement them here.

Dr Scott

I have a list of critical features, many of which I have already touched on.

We like the Austrian model and think that orders need to last for at least two weeks. That view is partly based on research that we are aware of concerning how long it takes for a victim to take up services, for those services to respond appropriately and for everybody in the system to have a better sense of what the next steps should look like.

This has not been mentioned yet, but it is absolutely critical that there be no discrimination in eligibility for the order, so it should not be based on immigration status. We are well aware that victims who are without secure immigration status, who are here on a spousal visa or who have any of the possible permutations of migration status are even more in need of protection than other victims.

There needs to be a clear commitment and systematic referral to support services—I am thinking of Women’s Aid services in particular. We know that, if that referral happens within 24 hours, it enormously increases the likelihood of service uptake. I had personal experience of that when we put in place an opt-out rather than an opt-in arrangement with police in West Lothian and the take-up of services went from 40-something per cent to 90 per cent. There is also lots of evidence from other places that that is a critical element.

We want to make sure that the process is free for the victim and—the obvious lesson from England and Wales—that it is free for the police. We cannot create a disincentive for our closest partners to help women and children to find safety by taking the cost of the process out of their budget.

My final point is that breach of the order needs to be a criminal offence.

Professor Burton

In Austria, there is a €500 fine for breach of an order but it is not a criminal offence, which is perhaps the only weakness in the Austrian model. In England and Wales, too, breach of a domestic violence prevention order is not a criminal offence, although the evaluation of the order suggested that consideration should perhaps be given to criminalising any breach. There are potential disadvantages in criminalising breaches of civil orders, but consideration needs to be given to the potential strength of criminalising breaches, because that would make enforcement stronger.

Mairi Gougeon

How do the penalties vary between different countries? Are there lower penalties compared to other sanctions that can be put in place?

Professor Burton

In some countries, such as Austria, there is a fine. In England and Wales, there can be a fine or a charge of contempt of court, which can lead to up to two years of imprisonment. However, in some countries, a breach is a criminal offence that can lead to immediate imprisonment.

Mairi Gougeon

The final point that I want to touch on, which was raised by DS McCreadie and is mentioned in Professor Burton’s written evidence, is about the effectiveness of EBOs in reducing repeat victimisation. Am I right in saying that you have been able to get figures on that only from the Home Office?

Professor Burton

Yes. Unfortunately, there is a very limited evidence base in that regard. None of the countries in Europe has evaluated the effect of emergency barring orders on long-term recidivism. The pilot study in England and Wales was the only one to look at recidivism and the impact of emergency barring orders. However, there were methodological difficulties in trying to find out whether emergency barring orders reduce repeat victimisation.

The measure that was used was the number of repeat call-outs that were made to the police after an emergency barring order had been made, which was compared to situations in which there were no emergency barring orders. In the 19-month follow-up period, it was found that, when an emergency barring order had been made, there was a reduced number of repeat calls to the police in relation to domestic violence, particularly in chronic cases in which three or more calls had been made to the police prior to the making of the emergency barring order. The making of the order seemed to have the greatest effect in reducing the number of repeat calls to the police.

Nevertheless, we must be careful when using the number of repeat calls to the police as a measure of recidivism, because victims might have been put off calling the police again if they were unhappy with a previous response. In England and Wales, researchers talked to some victims about how they felt about emergency barring orders, and they were mainly supportive of their use. That led the researchers to conclude that the victims were not being put off calling the police again because they were unhappy that a barring order had been made.

The evidence base is not great, but what evidence there is suggests that emergency barring orders might have some effect on repeat violence for up to 18 months, at least.

Dr Scott

It is also important to think beyond recidivism and about the prevention of homelessness. As many of you will be aware, we did a piece of work with a team of community researchers in Fife and the ensuing report—“Change, Justice, Fairness: ‘Why should we have to move everywhere and everything because of him?’”—pointed out that, in Scotland, in order for women to be assured that they are safe and for the system to respond to their needs, they often have to declare themselves homeless. One of the reasons for that is the failure to have a mechanism in place that allows systems to coalesce around a family in their own home. Hence, 40 per cent of the women in the Fife research survey had been made homeless more than once.

We are convinced that other costs in the system will reduce as a result of such homelessness being prevented and that an overwhelming amount of harm will be reduced through homelessness of women and children being avoided in the context of domestic abuse. There is a huge argument for that approach, which would deliver a fabulous payback in other parts of the system although not necessarily for the police.

Liam McArthur

Mandy Burton has talked about extending the duration of the barring order to between four and seven days, and Dr Scott talked about two weeks being the optimum duration. It strikes me that there may be a balance to be struck in setting a longer duration with perhaps a higher threshold. If the duration was two weeks, for example, might there be a risk that the disruption that that would cause could put people off applying for barring orders? Although we might want to allow as much time as possible, setting the duration of an order closer to between four and seven days might ensure that barring orders are applied as rigorously as we want them to be.

Dr Scott

The very real problem that you have identified is the capacity of the system to understand domestic abuse. If there is a reluctance to use an EBO because of the risk threshold, that is a training indicator rather than a reason not to allow a longer time for the services to take action and the victims to become confident that they can be safe. We might well find evidence that there is a reluctance within the system to use EBOs, but that would be the result of a long history of privileging the right to property over the human right to safety.

Liam McArthur

Was there any reason why Mandy Burton opted for a duration of between four and seven days as opposed to a duration of two weeks?

Professor Burton

I did not opt for a duration of between four and seven days. The researchers who carried out the Home Office-funded evaluation recommended that consideration be given to extending the domestic violence prevention notice to between four and seven days because they found that fewer domestic violence prevention orders were being applied for than had been anticipated. The researchers asked the police why that was, and their reply was that the bureaucratic burden was putting them off—they did not have sufficient time to get together a case to apply for a longer domestic violence prevention order.

I think that, in my written evidence to the committee, I said that consideration should be given to making the duration at least one week. That seems to be a reasonable length of time to interfere with the perpetrator’s rights before the matter is considered by a judicial authority.

Liam McArthur

Does DS McCreadie share that view?

Detective Superintendent McCreadie

Let me clarify what we are talking about here. The domestic violence protection notice that is issued by the police—by a superintendent or above—lasts for 48 hours. If I have interpreted it correctly, the suggestion is that that period could be extended by the police, without judicial review, to between four and seven days. Thereafter, an extension of it up to something in the order of 28 days would still be subject to a court order; so, in effect, the process could still cover four weeks.

Rona Mackay

Does the panel have a view on what tests should be met before an EBO is imposed? Does that bring us back to the original question of risk assessment, and is there a danger of the threshold being set too high or too low?

Detective Superintendent McCreadie

I come back to the policing perspective on the risk assessment: the domestic abuse questions, which I mentioned at the start of the evidence session. That is the basis on which the orders appear to be applied in England and Wales. There is a different terminology for the risk assessment but, in essence, it is the same model.

I will defer to academia on this but, in England and Wales, the test or requirement that appears to be applied is that of any heightened risk. I suggest that, if the committee is agreeable, that is a fair and transparent process. There has to be professional judgment. We know as a service—it is part of our training—that the recognition of someone as a victim, by the nature of what they are reporting, can minimise the perpetrator’s behaviours, so they may score very low on the risk assessment. However, if the gut instinct of an officer or another partner suggests that there is a heightened risk, we can escalate the situation, even though it may not meet the threshold.

Rona Mackay

Can you give an example of what heightened risk might be?

Detective Superintendent McCreadie

Each question carries a score. A total of 14 or above would indicate heightened risk and we would refer that for multi-agency risk assessment. In addition, if someone scores three because they are not engaging with us—they are not telling us the truth but we can see other evidence or have heard other accounts from neighbours to say that incidents are occurring every week and they have seen the person with injuries—we can apply our professional judgment, which overrides the score. That is also done by partners.

Rona Mackay

Would previous offending come into that?

Detective Superintendent McCreadie

It is a risk assessment around the victim and their perception. However, the police will take into account the whole circumstances of the report that they are dealing with.

Professor Burton

It is important that the threshold for making the orders is not set too high. If one of the reasons for having emergency barring orders is to plug gaps in the criminal law, it would be counterproductive to make the threshold for making an EBO too high.

In England and Wales, it is not necessary for actual violence to have been used in order for an order to be made; the officer has to have a reasonable belief that violence has been used or threatened and that an order is necessary to protect the victim from violence or a threat of violence. The level of violence that has to be used or threatened for an EBO to be made in other European countries varies enormously. In some countries, violence must have been used before an order can be made, but in many countries psychological and emotional abuse or a threat of violence are sufficient for the making of an order. The evidence is that the latter approach is more effective in plugging gaps in criminal law.

Rona Mackay

Would it heighten the risk if children were present?

Professor Burton

Whenever children are present, they are the indirect, if not the direct, victims of domestic abuse, so that should come into the assessment. If violence is being threatened towards the adult victim of domestic abuse and if children witness that, it is likely that they are also being harmed.

Mary Fee

I want to look at who should be covered by an EBO and how widespread it should be. I want to pose a scenario to the panel and hear your views. Say that we have a woman who is a victim of domestic abuse and is deemed to be at significant risk and has children who are also deemed to be at significant risk, so an EBO is issued. If that woman and her children have a set pattern of behaviour over the course of a week during which that EBO could operate, should the school and clubs that the children attend and the family visits that the woman makes—all of which will be known to the perpetrator—be included in the order? We could argue that, if those are not included, we are further victimising the victim of a crime.

Dr Scott

We have made our position clear. Any of the customary spaces that the woman or children are likely to be in should be covered, because it is not about the place but about the protection around those people in their daily lives. I understand that there are complexities in enforcing that. However, at the end of the day, we need to keep our eyes on the prize of safety. The order should be associated not with the property but with the autonomy and personal safety of the family.

Professor Burton

Historically, we had a similar debate around bail conditions and a phrase was coined: “Where she works, rests and plays.” The same applies to emergency barring orders—they should apply where the primary victim and the children work, rest and play.

Mary Fee

That is helpful.

Detective Superintendent McCreadie

Every case would be considered on its merits. If the committee felt that it was necessary to legislate, the applicant would have to offer justification for bringing that under consideration. The justification for inclusion or exclusion would be scrutinised by the authorising authority, whether that be a senior police officer or the judicial review. It should definitely be in the guidance.

Mary Fee

Okay. I am just a bit concerned about the use of the word “justification”. It almost implies that the victim has to make a case to justify her or her children going about their daily lives.

Detective Superintendent McCreadie

In my opinion, the justification refers to the police applying to prohibit somebody’s movements or exclude them from certain areas. In some cases, that may not be to the children’s benefit—it would depend entirely on the circumstances. I return to the point that I made at the outset: this is about victim safety, and that is our focus and that of our partners. Our position is that the matter would be considered on a case-by-case basis, as opposed to all orders in every instance excluding a person from school or other premises.

Mary Fee

I am sorry to be pedantic but, when you say that it may not be in the children’s interests, are you saying that the police could, in theory, decide that it would be in a child’s best interests not to go somewhere, or have I misunderstood what you are trying to explain?

Detective Superintendent McCreadie

I am trying to say that we would not want to take a carte blanche approach to the matter. We would not want to say that, in every instance, in every EBO, we will exclude or include certain factors. Every case should be considered on its merits.

Gillian Mawdsley

Mary Fee referred to a particular scenario. To go back to what I said earlier, the risk that you are talking about would normally be covered by the not-to-contact approach. I support what Dr Scott said about it being about the person rather than the place, because such an approach would cover school, granny’s house or wherever the child might be. That echoes the words in article 52 of the Istanbul convention, which talks about not contacting the victim or person at risk. If you include children in that category, that would cover it.

Mary Fee

That would be a belt-and-braces approach.

Gillian Mawdsley

Yes.

I completely endorse what was said that, if you are minded to introduce emergency barring orders, there is a need to look at various aspects. If it was for the police to impose such orders, I stress again that there would need to be consideration of the nature of the offending conduct against the provisions of exclusion from the house. I return to the comments that I made about independent judicial review at the soonest opportunity being proportionate, in the sense that it would provide equality of arms and ensure that all the implications for both sides would be heard. If you were minded to pursue this route, I would want you to be clear about the process of appeal and for there to be that review mechanism, as that would ensure the safety and fairness that people would expect to be inherent in the Scottish system. That is all that I would say with regard to any period that an order would apply for.

Mary Fee

That is helpful. In an earlier answer, Gillian Mawdsley said that electronic communication should be included as a form of contact. I am interested in whether the other panel members agree with that view.

Detective Superintendent McCreadie

Yes. The joint protocol between the Crown Office and Procurator Fiscal Service and Police Scotland clearly indicates that domestic abuse can occur anywhere, including online, so we would support that view.

Professor Burton

I agree.

Dr Scott

Yes.

Mary Fee

Thank you.

The Convener

The issue of support services has been covered to an extent, but I wonder whether there are any drawbacks to integrating the support services into the system of EBOs. If there are no drawbacks and only benefits, should there be automatic referrals for victims? Professor Burton has done quite a lot of work on the issue.

Professor Burton

Yes. The drawback is that the services must have sufficient funding to meet the need. If you make referral by the police mandatory on the making of an emergency barring order, that is likely to increase the demand for support services and they will have to try to meet that demand out of their existing budgets.

In other jurisdictions, the legislation includes provision for funded intervention centres. For example, the Netherlands, the Czech Republic and Austria all have funded intervention centres to make automatic referral work. The only potential drawback here is that there will not be enough money for the support services to respond effectively to the demand that is created.

In Germany, where referral to support services is discretionary rather than mandatory, it has been found that the victim is more likely to take up the services when the police make a referral. There is pretty reliable evidence that the most effective way to implement barring orders is if there is referral to support services and it is a multi-agency response.

The Convener

Are there any differing views? No—it looks as though everyone is in agreement with that. There are no further questions so I thank the witnesses very much for this useful and helpful evidence session.

The Convener

Agenda item 4 is consideration of the Domestic Abuse (Scotland) Bill at stage 2. For this item, I ask members to refer to their copies of the bill and the marshalled list of amendments. I welcome back the cabinet secretary and his officials, and I also welcome Linda Fabiani to the meeting.

Section 1—Abusive behaviour towards partner or ex-partner

The Convener

Group 1 is on the relationship context of the offence. Amendment 1, in my name, is grouped with amendment 2.

Amendments 1 and 2 were prompted by evidence that the committee received at stage 1 from Scottish Women’s Aid. Heather Williams gave the following example of psychological abuse:

“if I meet you in a shop and you say, ‘I notice that your son’s got a new bike. I hope he doesn’t have an accident,’ that might appear to be a reasonable conversation. However, it could set off a lot of distress if, in the context of the relationship, you are threatening me and saying that if I leave or do anything that you are not happy with, you will hurt my son ... when taken in the full context, we can understand why it would cause harm and distress”.—[Official Report, Justice Committee, 13 June 2017; c 18.]

I consider that evidence to be absolutely crucial, because it seems to me essential that, in order to understand whether behaviour can be deemed abusive or likely to cause someone to suffer psychological harm in a domestic relationship, we look at the behaviour in the context of that relationship. Behaviour that in some circumstances might not appear to be threatening or intimidating might be seen in an entirely different light once the context of the relationship between A and B is taken into account. As a result, amendments 1 and 2, which have the support of Scottish Women’s Aid, seek to insert

“in the context of the relationship between A and B”

into section 1.

I move amendment 1.

Michael Matheson

Amendments 1 and 2, which relate to the new offence of domestic abuse, are, as I understand it, intended to address a concern raised during stage 1 scrutiny that the operation of the offence does not acknowledge that relationships between partners are, by their nature, different and that, as a result, behaviour occurring within the context of one relationship might be construed quite differently than the same or similar behaviour occurring within another, different relationship. Although the amendments are obviously well intentioned, I will explain why I do not think that they are required and, indeed, why they might confuse how the courts should approach consideration of the new offence.

First, I will briefly confirm how the new offence operates to explain the context for why the amendments are not necessary. The wording of section 1 already makes it clear that the offence relates to a course of abusive behaviour in the context of a relationship between a person and their partner or ex-partner. It is important to consider the definition of “abusive behaviour” in section 2, which provides that behaviour that is abusive includes behaviour

“that is violent, threatening or intimidating”;

and it is hard to imagine any circumstances in which such behaviour would not be abusive. Amendments 1 and 2 are therefore unnecessary in relation to those aspects of abusive behaviour.

However, as members know, the definition of “abusive behaviour” also includes behaviour that is likely to have one of the effects on the complainer listed in section 2(3). It is important to keep in mind that the question here is whether the accused’s behaviour is likely to have one of those effects on the actual complainer in the case, as opposed to a hypothetical person. That means that the court is required, case by case, to have regard to the context of the relationship between the accused and the complainer in reaching its decision on the evidence. For example, the court must consider whether the accused’s behaviour was likely to have the effect of

“frightening, humiliating, degrading or punishing”

the complainer in question.

It is also important to bear in mind that the court is required to consider whether a reasonable person would consider the accused’s behaviour likely to cause the complainer to suffer physical or psychological harm, not whether it would be likely to cause such harm to a hypothetical victim. For example, if the court accepts evidence that the relationship between the accused and the complainer was characterised as being, for instance, very argumentative and marked by the use of strong language by both partners that others might consider abusive in a general sense, the court might reach the conclusion that, given the context of the relationship between the accused and the complainer, the accused’s behaviour was not likely to cause psychological harm to the complainer. Again, that turns on the likely effect on the complainer in question, rather than a hypothetical victim. Nevertheless, it depends on what the court believes that a reasonable person would conclude as likely to affect the complainer in question. That, too, ensures the right measure of objectivity, as the evidence is assessed case by case.

I hope that that provides reassurance that the bill as introduced requires the court to have regard to the whole context of the relationship between the accused and the complainer in deciding whether it is proven that the offence has been committed.

John Finnie (Highlands and Islands) (Green)

Your examples have all related to interpretation by the court, but there is a step prior to that, which is the involvement of the police. With regard to the particular phrase that the convener quoted, if you or I were to use it in addressing someone, it would be seen as very innocent. The difficulty is that a woman who is the victim of such an approach might find it difficult to convince the police that the behaviour is unreasonable. Is the challenge here not about how the court interprets the matter but about how we get the issue to court?

Michael Matheson

Not necessarily, as it will be for the courts to decide how to interpret the legislation. The balance in the offence has been set out this way in the bill to ensure that the whole context of the relationship can be taken into account in consideration of the matter.

Amendments 1 and 2, which reiterate that the offence takes place within the context of a relationship between partners or ex-partners, are simply not needed. To add the words

“in the context of the relationship between A and B”

to two places in section 1 would have no true legal effect on what is already addressed by the provisions when they are read as a whole.

Furthermore, I am concerned that the additional words are also liable to cause confusion. Indeed, I am not precisely sure what truly is qualified by the proposed additional wording in each case. The amendments also perhaps raise a question about when abusive behaviour between partners and ex-partners would not happen in the context of their relationship. Would it ever be possible to separate relationship abuse from non-relationship abuse when abuse occurs between people who are in or have once had a relationship?

Finally, if the convener’s intention is to provide for an objective overview of what is reasonable in a typical relationship context between two hypothetical people, I have to say that the amendments do not achieve that, because they refer to the particular relationship between person A and person B. In any event, the nature of what amounts to abusive behaviour in the context of a particular relationship is, as I have explained, already covered in the bill. In addition, it is worth reminding members that the defence in section 5 of the bill is part of the checks and balances designed to ensure that no one is unfairly criminalised by the new offence.

On that basis, I invite the member to withdraw amendment 1 and not to move amendment 2.

The Convener

The cabinet secretary said that the wording is likely to cause confusion, but the type of relationship that we are looking at here is an abusive one. There is also the issue of psychological harm, which can be quite hard for people to get their heads around. There are two types of relationship: non-abusive relationships and relationships that the legislation seeks to address. That is why context is all important and greatly adds to the bill’s understanding.

In all of your explanations, cabinet secretary, you have constantly mentioned context, but it is not on the face of the bill. Amendment 1 merely serves to make the legislation the best that it can be and to aid understanding of psychological abuse. If the bill referred to context, it would make it totally evident what psychological behaviour is.

I ask the cabinet secretary to reflect on that. As an example that he might take into account, we constantly asked for amendments to the Human Trafficking and Exploitation (Scotland) Bill to strengthen the bill and make it better. Eventually, at stage 3, those amendments appeared.

I will not press amendment 1, but I would very much welcome further discussion with the cabinet secretary to see if we can come to a meeting of minds. For me, context is all important to ensuring that the bill achieves what we all desperately want it to achieve. I have had a lengthy discussion with Scottish Women’s Aid, which provided evidence on the issue, and it is very much of the same opinion. As I have said, if the cabinet secretary is happy to discuss the issue further with me, I will not press the amendment at this stage.

Michael Matheson

I am always happy to discuss matters with committee members with a view to improving legislation, but I think that our discussions with Scottish Women’s Aid have been slightly different from those described by the member. That said, I am more than happy to have a discussion with the convener before stage 3.

The Convener

I had a discussion with the group as recently as half an hour before we came into committee, so there has obviously been some miscommunication.

Amendment 1, by agreement, withdrawn.

Amendment 2 not moved.

Section 1 agreed to.

Section 2 agreed to.

After section 2

The Convener

The next group is on extraterritorial jurisdiction. Amendment 3, in the name of Michael Matheson, is the only amendment in the group.

Michael Matheson

Amendment 3 inserts a new section that provides the Scottish courts with extraterritorial jurisdiction in respect of offences of domestic abuse. Members will recall that the issue was raised by Scottish Women’s Aid in evidence at stage 1. Scottish Women’s Aid emphasised that it was necessary to provide Scottish courts with extraterritorial jurisdiction over the domestic abuse offence to comply with the Istanbul convention on violence against women.

The effect of amendment 3 is to provide that, where a United Kingdom national or a habitual resident of Scotland commits the offence wholly or partly outside the United Kingdom, the Scottish courts have jurisdiction to deal with that offence. That is particularly important given that such an offence is constituted by a course of behaviour that can occur over time in various places. Amendment 3 also states which sheriff court is to have jurisdiction if the offence is committed wholly outside the United Kingdom. Existing jurisdictional rules will apply when the offence is committed partly abroad and partly in Scotland. Simply put, the offence can be tried in the sheriff court district where the Scottish part of the course of conduct took place.

Amendment 3 does not make such provision when the offence is committed in another UK jurisdiction. That is because, when an offence occurs partly in another UK jurisdiction, common-law rules concerning offences that are committed across the different jurisdictions of the UK will enable the elements of a course of conduct that happen in another part of the UK to be included in the charge. For the avoidance of doubt, when the behaviour occurs wholly in another UK jurisdiction, we think it appropriate that it should be prosecuted in a court in that jurisdiction.

I move amendment 3.

The Convener

Will you give an example of the kind of behaviour that might be covered under the amendment?

Michael Matheson

For example, a couple is on holiday in Spain and a course of abusive behaviour takes place there and, on return to Scotland, when a complaint is made to the police and is investigated, reference is made to the behaviour that took place outwith Scotland. That could be taken into account when the complaint is being considered and it could be presented in court.

The Convener

Would the jurisdiction be worldwide?

Michael Matheson

In what sense?

The Convener

Where are we looking at for extraterritorial jurisdiction?

Michael Matheson

The course of behaviour could take place anywhere in the world; it does not matter where it happens outwith Scotland or the UK. The provision is not specific to any particular country.

The Convener

You mentioned a country that is in the European Union—that is all that I was asking.

Michael Matheson

It is not dependent on whether we remain in the EU.

The Convener

That is good to know.

Michael Matheson

Of course, Istanbul is not in the EU.

Liam Kerr (North East Scotland) (Con)

I have a slight concern about the status of the perpetrator, who is identified as “A” in the bill and in the amendment. We have set out two categories: we have “habitually resident in Scotland” or “a UK national”. I completely accept that there needs to be a very real connection to Scotland so I am perfectly comfortable with the category of “habitually resident in Scotland”. However, it is my understanding that, if modern statutes have a nationality category at all, it tends to be limited to British citizens. That is not the slightly wider definition of UK national that is in the amendment, which includes

“a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen”.

My view is that the best option would be to narrow it down to those who are habitually resident in Scotland at the time the offence is committed, with the caveat that, if it is going to be wider, it is extended only to British citizens. I would be interested in your thoughts on that.

Michael Matheson

My understanding is that, in order to comply with the convention, the provision has to apply to those habitually resident in the UK or UK nationals. That is why the amendment has been drafted in that way: it is to comply with the requirements of the Istanbul convention.

Liam Kerr

I see, so it is about those habitually resident and British nationals.

Michael Matheson

UK nationals.

Liam Kerr

UK nationals—okay. To comply with the convention, overseas territories need to be included.

Michael Matheson

Yes.

Liam Kerr

I understand. Thank you.

Liam McArthur

I will follow that up for the purposes of clarity. In terms of extraterritorial jurisdiction, a UK national as defined in the amendment might not be habitually resident in Scotland. New subsection (3)(a), which amendment 3 would insert, refers to someone who is

“habitually resident in Scotland, or ... is a UK national.”

We are not dealing with somebody who is a UK national but who resides habitually somewhere else in the UK and commits the offence overseas in whole or in part and then is subject to the jurisdiction of sheriff courts in Scotland. How is that delineated through the amendment’s provision?

Michael Matheson

Sorry, but I am not entirely with you. What sort of person are you referring to?

Liam McArthur

A UK national or somebody who is habitually resident somewhere else in the UK, who commits the offence overseas, either entirely or in part, and returns to the UK and finds themselves the subject of a complaint.

Michael Matheson

If it is a UK national who commits the offence entirely outwith the UK, the offence can still be prosecuted in Scottish courts. However, if it is a UK national—I am just trying to clarify this for the member—who commits the majority of that offence in another part of the UK and outwith Scottish jurisdiction, they would be prosecuted through the domestic courts where the majority of that—

Liam McArthur

Sorry, but I am probably not explaining this clearly. I am asking about that first example of a UK national who commits the offence overseas and the entire sequence of actions takes place overseas. That UK national is not habitually resident in Scotland. Presumably the provision is not about prosecuting in Scottish sheriff courts an individual from Manchester, London or wherever.

Michael Matheson

No. If it was, for example, an expatriate staying overseas who committed the offence against someone who resided in Scotland and that was their habitual residence, they could be prosecuted here in Scotland for that offence. I hope that that clarifies the type of person that we are thinking about.

Liam McArthur

Okay. That is helpful.

The Convener

This has been more of a question-and-answer session, because of the technical point. Normally, we would take all the comments in a oner and then ask for the cabinet secretary’s view. Do you want to say anything further to wind up, cabinet secretary?

Michael Matheson

No.

Amendment 3 agreed to.

Section 3 agreed to.

Section 4—Aggravation in relation to a child

The Convener

Amendment 4, in the name of the cabinet secretary, is grouped with amendments 5 to 9.

Michael Matheson

Members will be aware that the bill contains a statutory aggravation in section 4. The aggravation provides that if the accused involved a child in committing the offence, the aggravation applies. A child can be involved in three ways: if the accused directed behaviour at the child; if the accused made use of a child in directing behaviour at their partner or ex-partner; and if a child saw, heard or was present during incidents of behaviour forming part of the course of abusive behaviour that constitutes the offence. The aggravation is intended to ensure that the harm caused to children when they witness or are involved by the perpetrator in the abuse can be reflected by the court when sentencing the perpetrator.

Members have heard stakeholders who represent children affected by domestic abuse express some concern that the aggravation in the bill does not reflect the harm that is caused to children by growing up in an environment in which their parent or carer is being abused. That criticism has focused on cases in which a child is in the environment in which the abusive behaviour is being carried out but is not directly involved as such, in which case the current aggravation in section 4 would not apply.

Examples of the harmful effects of domestic abuse on children that are not covered by the aggravation include: coercive and controlling behaviour that has the effect of isolating a child, as well as the primary victim, from friends, family or other sources of support; abusive behaviour that undermines the ability of the non-abusing parent or carer to look after the child by, for example, restricting their access to transport, thereby limiting their ability to get a child to doctor’s appointments, or restricting their access to money, thereby limiting their ability to provide essentials for a child; or the harm that is caused when a child is aware that the abuse is taking place, even though they never see or hear it and are never present when the abusive behaviour takes place.

The stage 1 report noted those concerns and asked the Scottish Government to respond to evidence that the reference in the current approach to the aggravation being established where a child

“sees or hears, or is present during”

an incident of abusive behaviour was too narrow. It was argued in that evidence that children in the care of victims of abuse were likely to suffer trauma as a result of that abuse, whether or not they directly witnessed abusive behaviour or incidents, and therefore that there was an aggravation. Amendments 4 to 9 respond to those concerns by widening the scope of the aggravation.

Amendment 5 provides that, in addition to the existing ways in which the offence can be aggravated, it is also aggravated

“if a reasonable person would consider the course of behaviour, or an incident ... that forms part of the course of behaviour, to be likely to adversely affect a child usually residing with”

the victim or the perpetrator.

Amendment 9 adds to that by providing that references to a child being adversely affected include

“causing the child to suffer fear, alarm or distress.”

That is a non-exhaustive definition, so other ways in which a child was adversely affected could be taken into account if the court was satisfied by the evidence in a particular case. For example, if a perpetrator controls a victim’s movements to such an extent that they are unable to leave the house to ensure that their children get to school or a doctor’s appointment, the court could determine that that amounts to behaviour that is likely to adversely affect a child.

As with other aggravations, evidence from a single source is sufficient for the aggravation to be proven. That is provided for in section 4 already. The aggravation uses a reasonable person test, so there is no requirement for the prosecution to prove that the child was actually adversely affected provided that the court is satisfied that a reasonable person would consider it likely that the child would be adversely affected by the perpetrator’s actions.

The aggravation is limited to children who usually reside with the victim or the perpetrator. That reflects the feedback that living in an environment in which domestic abuse is perpetrated is what can most adversely affect a child.

Amendment 4 paves the way for amendment 5. The two current limbs of the aggravation will accordingly be split between the present subsection (2) and a new subsection (2A), which sits alongside new subsection (2B) in amendment 5.

Amendments 6 to 8 are technical and just for the avoidance of doubt in relation to the operation of the aggravation as a whole.

Amendment 6 provides that it is not necessary to prove that a child had awareness of, understood the nature of, or was adversely affected by the accused’s behaviour for the aggravation to be proven.

Amendment 7 ensures that the three limbs of the aggravation are capable of being applied separately but can also be used in combination with one another when more than one applies in a particular case.

Amendment 8 ensures that nothing in the formulation of the aggravation prevents evidence from being led on certain impacts on a child, even though such impacts are not essential to prove the aggravation.

I move amendment 4.

Liam McArthur

I warmly welcome these amendments. As the cabinet secretary has rightly said, they address concerns that we heard from a number of witnesses at stage 1 about the aggravation being limited to children who have heard or seen abuse taking place and not covering the full range of the effects of abusive behaviour on a household and the children in it.

My question is about amendment 6, and it is on an issue that the cabinet secretary touched on in his comments. The amendment allows for an aggravation in circumstances where there is no evidence of a child being adversely affected by a perpetrator’s behaviour. I understand the reason for the provision—you have mentioned the reasonableness test—but I wonder whether there needs to be a reference to recklessness on the part of the perpetrator. We need to be clear that, even with the best of intentions, we are not setting the parameters of any offence too broadly, but I might well be missing some aspect of how amendment 6 should be read or how it interrelates with other provisions in the bill. I would therefore welcome any comments that the cabinet secretary might wish to make, particularly with regard to the recklessness of a perpetrator’s behaviour.

Liam Kerr

I echo everything that Liam McArthur has said. I am going to argue against myself here, cabinet secretary, so bear with me, but when I looked at the issue, I was slightly concerned about the reference in amendment 6 to a child not necessarily ever having

“any ... awareness of A’s behaviour”

and our putting in place an aggravation that involves some hypothetical child who can know nothing and yet aggravate the offence.

I said that I was going to argue against myself, because I also noted the reference in amendment 5 to a child’s

“usually residing with A or B”

and wondered whether that was unnecessarily restrictive with regard to the offence. I presume that you will counterargue that the residence criterion in amendment 5 makes the awareness reference in amendment 6 acceptable.

Michael Matheson

That is correct.

Liam Kerr

I was simply throwing that into the discussion.

Michael Matheson

So—

The Convener

Cabinet secretary, I just want to ensure that all the comments have been heard before we finish this debate.

I have to say that I had concerns similar to those expressed by Liam McArthur about amendment 6, but the one thing that I seek reassurance on is compliance with the European convention on human rights. I understand that the amendment’s purpose is to catch those children who, although they have no awareness or understanding of the abuse or are not affected by it, might still be at risk.

Michael Matheson

I am grateful for members’ comments. On the points that Liam McArthur made, we have set amendment 6 out in that way because it deals with the aggravation rather than the offence. The offence covers issues such as recklessness, but the aggravation relates to the impact on a child who might be affected by the behaviour.

Liam Kerr actually answered his own question. The two references that he highlighted are interrelated, because the child would normally be resident with the perpetrator or the complainer in such cases. With regard to the reasonable person test, one could imagine a baby or a one or two-year-old child having no understanding of the impact of the abusive relationship on their parent, who for some good reason might be unable to take them to the doctor for an appointment and so on. That is where the reasonable person test kicks in, because the court is then able to say, “Well, a reasonable person would assume that that would have an adverse impact on the child.” That is why in amendment 6 we have ensured that the reasonable person test is applied when the court considers such matters.

Amendment 4 agreed to.

Amendments 5 to 9 moved—[Michael Matheson]—and agreed to.

Section 4, as amended, agreed to.

Sections 5 to 10 agreed to.

Section 11—The 1995 Act etc

The Convener

The next group is on restriction on bail in solemn cases. Amendment 10, in the name of the cabinet secretary, is grouped with amendment 11.

Michael Matheson

Amendments 10 and 11 are important additions to the protections that the bill offers victims of domestic abuse. They are consistent with the approach that is taken elsewhere in the bill, where we have extended to victims of domestic abuse and related offences protections that our legal system already offers victims of sexual offences.

Under section 23D of the Criminal Procedure (Scotland) Act 1995, bail is to be granted only in “exceptional circumstances” in solemn proceedings in which an individual is accused of violent or sexual offences and when that individual has been convicted on indictment of sexual or violent offences. We want the availability of bail for repeat offenders who are accused of domestic abuse to be limited in a similar fashion and the link between domestic abuse offences and sexual or violent offences, which we have made elsewhere in the bill, to be made here, too.

Amendment 11, which is the main amendment in the group, constructs a group of offences including violent, sexual and domestic abuse offences. Its effect is that, when an individual is accused in solemn proceedings of any violent, sexual or domestic abuse offences and has past convictions for any such offences, bail will be granted only in exceptional circumstances. In this case, domestic abuse offences include both the new offence of domestic abuse in the bill and any offence charged to which the domestic abuse aggravation in the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 has been attached. When an individual is accused in solemn proceedings of an offence of any of those kinds and has been convicted on indictment of an offence of any of those kinds, which includes previous convictions for equivalent offences in other parts of the UK and the rest of the EU, bail is to be granted by the court only if there are exceptional circumstances to justify it.

Amendment 10 adds a reference to those changes to the list of procedural changes that we are making in the bill.

I move amendment 10.

Liam Kerr

I throw up the possibility that we are tying the hands of the court in circumstances in which there is little evidence of guilt. I am simply wondering aloud whether there is a human rights angle to this or whether it would fall foul of human rights legislation.

Michael Matheson

That is why we have given the court the scope to determine, on the basis of what has been presented, whether there are any exceptional circumstances.

As for whether there are any human rights aspects to this, the member might be aware that the jurisprudence of the European Court of Human Rights makes very clear the need for the courts to have the final say in bail matters and that they must have discretion in making such decisions. Amendment 11 ensures that that will continue to be the case, and we are therefore confident that, with the exceptional circumstances provision, it complies with the jurisprudence of the European Court of Human Rights.

Amendment 10 agreed to.

Section 11, as amended, agreed to.

Schedule—Modification of enactments

Amendment 11 moved—[Michael Matheson]—and agreed to.

The Convener

Amendment 14, in the name of Mairi Gougeon, is grouped with amendments 15 to 25. I point out that amendments 18 to 20 are pre-empted by amendment 31 in the group, which is on mandatory non-harassment orders, and that, if amendment 24 is agreed to, I cannot call amendment 23 in the group.

Mairi Gougeon (Angus North and Mearns) (SNP)

Amendments 14 to 16, 19, 21 and 24 are key amendments that will improve and strengthen the bill by increasing the protections that are afforded to children who are affected by domestic abuse. I am pleased to have lodged those amendments, which relate to issues that I and other members of the committee raised during our stage 1 scrutiny. I thank Assist, Children 1st, Barnado’s, the NSPCC and other stakeholders for raising those issues with the committee and the Scottish Government and for their briefings and the support that they have given to the amendments.

Amendment 16 is the main amendment in the group. It provides that certain children can benefit from the protections of a non-harassment order in a way that they cannot under the current legislation. At the moment, an NHO is available as a disposal to a criminal court following a conviction. The court can impose such an order for offences involving misconduct towards another person—namely, the victim. An NHO can therefore be made only in respect of the victim of an offence.

Although, as we have heard throughout our scrutiny of the bill, children are the victims of domestic abuse, the bill as it is currently drafted does not recognise that in relation to the granting of NHOs. Under criminal law, and as NHOs currently operate, children are generally not classed as victims of domestic abuse offending for the purposes of considering the imposition of an NHO.

Amendment 16 and the associated amendments would change that. The benefit of those amendments will be that children who reside with the perpetrator of the domestic abuse and children who reside with the partner or ex-partner who has been abused will be able to receive the protection of an NHO. Any child who is the subject of the child aggravation in section 4 of the bill will also be eligible for the protection of an NHO—that does not depend on where the child lives—in addition to the court having to consider whether to make an NHO in respect of the partner or ex-partner. It will, of course, be for the court to consider and decide in any given case whether to impose an NHO, but amendment 16 will, for the first time, empower our criminal courts to impose an NHO for a child who has been harmed by domestic abuse offending.

Amendment 19 is consequential on amendment 16 and provides for a requirement that the court explain why it has or has not imposed an NHO in respect of a child in any given case.

Amendment 15 is a restating of some material that is already provided for in the bill, but with the addition of the necessary definition of a child. That makes the provisions as a whole unfold better in the light of amendment 19.

Amendments 14 and 24 are consequential on amendment 15, and amendment 21 is a technical amendment that removes a word that is no longer useful.

I know that Liam McArthur’s amendments are similar to mine, but I think that my amendments really strengthen the bill and are more powerful in the sense that they provide for the protections of NHOs to be available to a wider range of children. In particular, NHOs will be available to children who usually reside with the perpetrator of the abuse or the victim of the abuse, which I do not think is the case with Liam McArthur’s amendments.

I encourage the committee to support my amendments in order to achieve our common policy goal of better protection for children who are affected by domestic abuse.

I move amendment 14.

Liam McArthur

I thank Mairi Gougeon for her comments on her amendments. She and I were left commiserating together last week after we lost out in the community MSP category of the politician of the year awards. I am delighted, however, that we have shown great fortitude, picked ourselves up, dusted ourselves off and joined forces to improve the protection that the bill affords to children who are affected by domestic abuse. I also pay tribute to the organisations to which Mairi Gougeon referred.

Amendments 17, 18, 20, 22 and 23 seek to ensure that, where an offence of domestic abuse is found to have been aggravated by the presence of a child or children, that must be specifically taken into account by the court in its consideration of imposing an NHO. That is in keeping with the evidence that we heard throughout stage 1, and it seems the only reasonable response for the committee to make in such circumstances.

Amendment 25, like the amendments that have been lodged by Mairi Gougeon, provides an alternative means of achieving the same outcome, through giving ministers an order-making power. Ultimately, I am entirely relaxed about how the committee chooses to address the gap in the bill, but I look forward to our doing that as well as to the comments from the cabinet secretary and from colleagues about the amendments in the group.

Michael Matheson

Amendments 14 to 16, 19, 21 and 24, in the name of Mairi Gougeon, are important amendments that will improve the protections that the bill affords to children who are affected by domestic abuse. As has been indicated, the amendments will provide that children can benefit from the protections of a non-harassment order in a way that they cannot under the present legislation. We know that children are too often the victims of domestic abuse. Although the bill is largely focused on domestic abuse between partners and ex-partners, stakeholders have indicated that the fact that the non-harassment order provisions in the bill do not extend to children is unfortunate.

The benefit of the amendments will be that children who reside with the perpetrator of the domestic abuse or with the partner or ex-partner who has been abused will be able to receive the protection of a non-harassment order. It will also be possible to give any child who is the subject of the child aggravation in section 4 the protection of a non-harassment order. That particular aspect will not depend on where the child lives and will be in addition to the court having to consider whether to make a non-harassment order in respect of the partner or ex-partner.

Without the amendments, it would be necessary for applications to be made through the civil court if non-harassment orders were to be considered for the children who are covered by the amendments. The amendments will, therefore, reduce the trauma and inconvenience for families who are affected by domestic abuse and will allow a criminal court to consider whether protections are needed for children who are affected by domestic abuse.

The Scottish Government is pleased that the amendments have been lodged and asks the committee to vote them into the bill.

I have considerable sympathy for what Liam McArthur is seeking to achieve with many of his amendments, but I will explain why I think that the amendments in the name of Mairi Gougeon are preferable.

As I have indicated, Mairi Gougeon’s amendments will mean that non-harassment orders will be available more widely to children who reside with the perpetrator of the domestic abuse, children who reside with the partner or ex-partner who has been abused and children who were involved in the committal of the abuse by being subject to the child aggravation in section 4. However, Liam McArthur’s amendments cover only those children who are subject to the aggravation in section 4 and, in our view, do not go far enough.

Amendment 25 seeks to provide an order-making power for the Scottish ministers to make further provision relating to non-harassment orders. It is limited to circumstances affecting cases in which the statutory child aggravation in section 4 has been proven, and it provides that regulations may provide for circumstances in which the court must consider making a non-harassment order to protect a child.

Although we understand the intent behind amendment 25, it seeks to provide the Scottish ministers with a wide power to, in effect, legislate by regulation so as to require certain sentencing decisions to be imposed by the court in a given case. The Scottish Government supports judicial discretion, as judges hear all the facts and circumstances of a case before a decision is made on sentencing. Therefore, as a matter of general policy, the Scottish Government does not support seeking to remove judicial discretion in the manner that is suggested by that enabling power.

In addition, we consider that, if the Scottish Parliament were to legislate to remove judicial discretion to determine sentencing decisions on the basis of the facts and circumstances of a given case, that should be done in the bill rather than through secondary legislation. We consider that such a step should not be taken lightly and should be given full parliamentary consideration.

On that basis, we ask Liam McArthur not to move amendments 17, 18, 20, 22, 23 and 25, and we ask the committee to support amendments 14 to 16, 19, 21 and 24, in Mairi Gougeon’s name.

Mairi Gougeon

I have no further comments. I simply press amendment 14.

Amendment 14 agreed to.

Amendments 15 and 16 moved—[Mairi Gougeon]—and agreed to.

The Convener

Amendment 29, in the name of Linda Fabiani, is grouped with amendments 30 to 36. If amendment 31 is agreed to, I will not be able to call amendments 18 to 20, which were debated in the group on non-harassment orders as to children, because they will have been pre-empted.

Linda Fabiani (East Kilbride) (SNP)

I come to amendment 29 and its consequential amendments with a background of many years dealing with victims of domestic abuse who felt that they had been let down by courts that did not grant non-harassment orders. I understand that position, which has been backed up by answers to my written parliamentary questions over the years; it certainly seems that the courts have issued fewer non-harassment orders than they should have. That situation often results in fear and dread for the victim, so people sometimes have to go down the civil action route. I understand that the committee has heard some evidence on that.

Amendment 29 is quite straightforward. It seeks to delete the words “consider whether to”, so that the bill would read:

“The court must—

(a) without an application by the prosecutor, make a non-harassment order in the person’s case”.

In other words, making a non-harassment order would be mandatory. It seems to me that it is a fundamental principle that the onus should be placed not on the victim to justify the need for a non-harassment order, but on the convicted perpetrator to justify why such an order should not apply.

Amendment 30 is more or less consequential on amendment 29. It would delete, after

“give reasons for the decision reached”,

the words

“including by explaining why there is a need or no need for the victim to be protected by such an order”.

It would also insert a requirement to look at

“the terms of the order”

and

“the period for which the order is to run”.

The other amendments in my name are more or less directly consequential on those that I have just described, and would make section 8 operable.

I asked a parliamentary question of the cabinet secretary last week, and I recognise that he is very keen to consider ways in which the bill could be strengthened. The committee has heard evidence from people who support the bill, including Scottish Women’s Aid, the Police Scotland violence reduction unit and Victim Support Scotland. Most compelling of all has been the evidence and testimony from people who have been directly affected, physically in some cases and mentally in others, by a non-harassment order not being granted by the court. I will quote someone whom I know rather well. She has said:

“A criminal conviction for my husband was of absolutely no use to me as a victim since that conviction on its own contained no provision to protect me, keep him away from my home and family and protect me from further abuse, with legal consequences should he choose to ignore the court’s order.”

That is a great problem in the system. I find the case for mandatory non-harassment orders to be compelling.

Liam Kerr

It seems to me that decisions on NHOs should always rest with the court, rather than NHOs being mandatory, irrespective of the circumstances or the strength of the allegations. I am concerned that their being mandatory would have consequences in terms of the ECHR, as we discussed earlier.

Liam McArthur

I am conscious that having just spoken to an amendment that would remove judicial discretion, I am now about to raise concerns about amendments that would have a largely similar effect.

Linda Fabiani set out very well the frustration that is felt and the impact of failure to put in place non-harassment orders. Whether that can be addressed through the Lord Advocate’s guidance or another mechanism is something that we might want to consider further in the context of the bill. However, I am concerned about the mandatory nature of the provision that amendment 29 and consequent amendments would introduce.

John Finnie

Linda Fabiani laid out very clearly some consequences of the present system. I know that the introduction of mandatory NHOs enjoys the support of Scottish Women’s Aid, and I certainly support it.

The Convener

There is an issue. I understand why Linda Fabiani is seeking to introduce mandatory non-harassment orders—there has been a problem about non-harassment orders not being granted when they should have been granted. However, I feel that the bill has addressed that by ensuring that a non-harassment order must be considered—consideration will be mandatory—and if an order is refused, there must be a reason for that. I hope that that will go a considerable way to addressing what is a very real problem, without necessarily breaching the ECHR or raising concerns under it.

I invite the cabinet secretary to wind up.

Michael Matheson

I am aware that Linda Fabiani has a long-standing interest in protection for victims of domestic abuse, which she has raised with me over an extended period of time. No one doubts her determination to try to improve how the system of non-harassment orders operates. However, I consider that the amendments that she has lodged go too far in seeking to remove discretion from our courts to consider what might be best in terms of an appropriate disposal when dealing with domestic abuse offenders.

Members will be aware that the bill includes non-harassment orders provisions that were warmly welcomed by stakeholders and others. The provisions will have the effect of requiring the court in every domestic abuse case to “consider whether to” impose an NHO, and “to give reasons for” why an NHO has or has not been imposed,

“including by explaining why there is a need or is no need for the victim to be protected by such an order.”

The provisions will therefore ensure that, in every domestic abuse case, the court has to consider the need for protection for the victim as it considers whether to impose an NHO. In addition, the new sentencing provision in the bill means that, “When sentencing” in domestic abuse cases,

“the court must have particular regard”

for the safety of the victim. Taken together, those changes will enhance the operation of the system of NHOs so that more victims can be protected.

Although I am certain that Linda Fabiani’s amendments are based on the best intentions, it is important to highlight their potential effect. They would remove all discretion from the court so that whenever a person was convicted of domestic abuse, an NHO would have to be imposed. There would be no exceptions: it would be a blanket requirement, as a matter of law.

Although it is certainly true that non-harassment orders have a key role to play in protecting victims of domestic abuse, it is also true that they might not be appropriate in all cases. For example, in a situation where the parties wish to reconcile following a prosecution, a non-harassment order might not be appropriate. There will be other cases where there is no reconciliation, but the victim might indicate that they do not feel that a non-harassment order is necessary and that they would prefer to have on-going contact with the accused, perhaps in relation to issues around children. The Crown Office prosecutes a wide range of domestic abuse cases, and non-harassment orders would not necessarily be appropriate or necessary in every case.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

In deciding on Linda Fabiani’s amendments, I wonder what, in practical terms, will happen when the new legislation is implemented. Will more non-harassment orders be issued as a result of the legislation than are currently issued, and will there, perhaps, be a change in the culture of how the courts look at the orders?

Michael Matheson

I believe that that will be the case, because of the requirement at the time of sentencing for the court to consider an NHO and to state in open court the reasons for issuing or not issuing a non-harassment order. That will make sure that, at the time of sentencing, the safety of the victim is at the centre of the court’s mind and is the focus when making the decision. The provision will help to change the culture.

Although non-harassment orders might well be appropriate in cases that involve a sustained course of conduct and repeated abusive behaviour, or when re-offending is likely, they might not be appropriate in cases that involve isolated incidents of conflict that are provoked by situational factors. In any event, it should be for the court to make that decision, rather than to have simply to apply the law in a blanket fashion.

There are potential human rights concerns about the amendments because they would require the court to impose a non-harassment order—we must remember that a non-harassment order can restrict someone’s freedom—with no discretion whatsoever to assess whether it is necessary in the given case. Although I sympathise with Linda Fabiani and others in their determination to enhance protection for victims, our courts are there to use their judgment in making decisions of that sort day in and day out, and we should trust them to do so while taking into account the specific facts and circumstances of each case, which is what the bill provides for.

The steps that we have taken to make it mandatory for a non-harassment order to be considered in every case and for reasons to have always to be given in open court are significant; they provide a very clear message to the court of the importance of utilising non-harassment orders in appropriate cases.

Although the amendments are well-intentioned, they would go too far by removing the ability of judges to assess each case that they deal with and to make decisions that are based on the facts and circumstances of the case.

I am also concerned that the amendments could bring the system of non-harassment orders into disrepute. If non-harassment orders are imposed in cases in which there is no justification for them, on the basis of consideration of the specific case, we run the risk of the credibility of non-harassment orders, as a disposal, being diminished in the eyes of the court and others. Given the important role that non-harassment orders play in protecting victims, that is not desirable.

I have made clear my objections to the amendments in the group. However, I sympathise with Linda Fabiani and others who seek to take further steps to strengthen the system of non-harassment orders. I am happy to work with Linda Fabiani and others ahead of stage 3 to see whether there are ways in which the provisions in the bill can be improved, while leaving appropriate discretion with the court.

On that basis, I invite Linda Fabiani to seek to withdraw amendment 29 and not to move amendments 30 to 36.

Linda Fabiani

I listened to what my colleagues on the committee said and I understand their concerns. I also listened very carefully to what the cabinet secretary said. I understand his concerns, too.

Clearly, the present system does not work for victims. Although the bill is taking some excellent steps forward, I am not convinced that it goes far enough. However, in the light of everything that has been said today, I seek to withdraw amendment 29, with a view to looking at how we might strengthen the bill at stage 3. I welcome the opportunity to talk that through and I wonder whether, in considering the matter further, the cabinet secretary and his team could consider the idea of there being a presumption that a non-harassment order would be granted.

Amendment 29, by agreement, withdrawn.

Amendments 17, 30, 31 and 18 not moved.

Amendment 19 moved—[Mairi Gougeon]—and agreed to.

Amendment 20 not moved.

Amendment 21 moved—[Mairi Gougeon]—and agreed to.

Amendments 32, 22 and 33 to 36 not moved.

Amendment 24 moved—[Mairi Gougeon]—and agreed to.

Amendment 25 not moved.

Schedule, as amended, agreed to.

Section 12—Ancillary provision

The Convener

Amendment 37, in the name of Claire Baker, is grouped with amendments 27 and 28.

Claire Baker (Mid Scotland and Fife) (Lab)

There are three reasons for my lodging these amendments. First, there is frustration at the slow progress in the development of specialist domestic abuse courts. The one in Glasgow was established in 2004. That pilot resulted in a positive evaluation, and it was followed by the one in Edinburgh in 2012. We have four courts that cluster—Dunfermline, Ayr, Livingston and Falkirk—and although other courts operate a fast-track system there are large areas of the country that are not served by any kind of specialist court in domestic abuse cases. That is the case in Aberdeen and Dundee, and I know that members from across the Highlands and the Borders have raised the issue with the cabinet secretary in the chamber. In those areas a postcode lottery is operating in terms of victims’ access to justice. Cases of that type need the appropriate expertise and sensitivity to deal with them, and there is evidence to show that specialist courts can deliver that.

Secondly, there are concerns about consistency in decision making and about confidence in decisions that are made. Members might be aware of a couple of recent cases involving multiple convictions for individuals for crimes committed against different partners that resulted in community sentences being given.

I have been contacted by the victims in those cases, who were very distressed by the sentences. Those sentences were not given out in domestic abuse court cases. I do not claim that the sheriffs’ decisions would have been different if those victims’ cases had been heard in a specialist domestic abuse court, but I think that the victims would have had more confidence in how the decisions were made.

In addition, there was a case last year in which the sheriff decided to send the alleged victim, who was a mother, to jail for two weeks under contempt of court because, according to the sheriff, she did not fully participate in the court proceedings. I felt at the time that if that case had been heard in a specialist domestic abuse court, that situation would not have happened. There is therefore an issue about consistency in decision making and the confidence of victims.

Thirdly, I am very supportive of the bill’s introduction of the new offence and its inclusion of coercive and controlling behaviour and psychological abuse. I am aware that the stage 1 report indicated that a minority of the evidence that was given to the committee was from experts who expressed concerns about possible challenges to the legislation in the courts and the discussion that there will be around the introduction of the offence of coercive behaviour. I would rather see the bill’s provisions tested in a specialist court than in an ordinary court, because the specialist court would have better understanding of and expertise on what the Parliament seeks to achieve through the bill.

Amendments 37, 27 and 28 seek to ensure that the bill is given full effect. Currently, it is the sheriff principal who can decide whether to create a specialist court, but amendment 27 would give Scottish ministers the power to designate domestic abuse courts. I recognise and respect the independence of the judiciary in this area, but there is frustration at the lack of progress on establishing specialist courts. Amendment 37 would give the Government the power to use regulations to advance specialist courts. Amendment 28 seeks a review of the operation of the legislation, once the bill is passed, to compare how decisions are made in regular courts with how they are made in specialist courts.

Amendments 37, 27 and 28 therefore seek to push progress on specialist courts, recognise their advantages, ensure the best implementation of the new legislation and provide equal access to specialist courts for women and all victims across Scotland.

I move amendment 37.

John Finnie

I fully support Claire Baker’s amendments. She is right that Rhoda Grant and I have consistently raised concerns about the issues that her amendments address. The only word in amendments 37 and 27 that might throw people is “specialist”. However, if judicial training covered domestic abuse more or if individuals in the judiciary frequently dealt with domestic abuse cases, some of the very insensitive disposals that have been referred to would not have been made. It is not about new buildings; it is about case management, clustering cases and collaborative working between the public sector and the third sector. It is important that we spread the service throughout Scotland and that there is no lesser quality of service for some victims of domestic abuse on the basis of geography.

Fulton MacGregor

I have a lot of sympathy for Claire Baker’s input, but I cannot envisage a situation where Scottish ministers would be better placed to make a decision on specialist courts than the Lord President. In any case, I believe that all courts should be specialist domestic abuse courts and I think that what John Finnie just said backs up that view. To return to what I said in my intervention on the cabinet secretary, I hope that the bill will lead to a culture change so that every court is a specialist court.

George Adam (Paisley) (SNP)

Following on from what Fulton MacGregor said, I take on board everything that Claire Baker and John Finnie raised with regard to the issue. I want to ask a question that I hope that both the cabinet secretary and Claire Baker, in her summing up, can answer. Under the Judiciary and Courts (Scotland) Act 2008, the Lord President is the head of the Scottish judiciary. Are we changing that? Are we jumping ahead and putting a provision in the bill that allows the legislation to make decisions, as opposed to having the courts make decisions as directed by the Lord President? Has Claire Baker spoken to the Lord President about her amendments?

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I totally agree with Claire Baker about the slow movement on the creation of domestic abuse courts across the country. That is a concern. I also agree with John Finnie about the need for more specialist training in this area. However, the amendments would compromise the independence of the judiciary, and it is not for ministers to have power over the courts and the Lord President in that way.

Mary Fee (West Scotland) (Lab)

I fully support the amendments that have been lodged by Claire Baker. I cast my mind back to some of the quite disturbing and distressing evidence that we heard when considering the bill at stage 1. We heard from victims who had requested special measures and arrived in court to find that the special measures were not in place and that the support that they had been assured they would be given was not there. Quite often, appearing in court left the victims feeling further traumatised because they did not get the support that had been promised to them. An aim of the bill is to support people and prosecute domestic abuse correctly. Going down the road of specialist courts would send out a signal to victims of domestic abuse and to witnesses who are coming forward that everything that they want will be automatically provided for them when they arrive in court, and it will remove what can often be a barrier or an obstacle that they have in their minds about appearing in court.

Liam Kerr

The approach of a specialist court is definitely interesting and worth exploring. It certainly moves us towards a system that we would all like to get to. However, I am not convinced that the amendments, as drafted, work on a practical level, nor that such an approach would work practically in more rural areas. Neither am I convinced that they reflect the realities of the resources available at sheriff court level. My significant concern is that the amendments could end up inhibiting justice by creating too rigid or inflexible a structure.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

I commend Claire Baker for lodging amendments on the important issue of specialist domestic abuse courts. I share the concerns of my colleagues George Adam, Fulton MacGregor and Rona Mackay about the independence of the judiciary. I would also like to add that, if Claire Baker’s amendments fall today, perhaps we as a committee should make a commitment to write to the Lord President expressing the views that were given today and proposing the implementation of more domestic abuse courts, where reasonable and prudent within financial constraints.

Liam McArthur

I also thank Claire Baker for lodging the amendments and allowing the discussion to take place. The frustration that she expresses about the progress that has been made is shared by all of us. From a personal perspective, I am looking at this in relation to not just the Highlands but the Islands as well, and I am thinking how effect could be given to such a provision. In Orkney, we are in the fortunate position of having a procurator fiscal and a sheriff who understand domestic abuse. Others have highlighted the need for training in this area not to be a specialism but to be central to the training that is provided across the board.

Ultimately the issue is about timely local access to justice. I am concerned that it would not necessarily be straightforward to make what we would put in place work in the parts of the country that I represent. That is a concern, because it the issue is about providing the timely and appropriate support and access to justice that Mary Fee, in particular, stressed in her remarks.

Michael Matheson

Amendments 27 and 37 seek to provide the Scottish ministers with a power to require a sheriff principal to designate one or more courts in their sheriffdom as a specialist domestic abuse court. Amendment 27 is framed so that that order-making power can be used only when the Lord President has consented to the order being made. Despite that, I have concerns about the amendments, which I will explain.

The Judiciary and Courts (Scotland) Act 2008, which was passed unanimously by the Parliament, provides that it is the responsibility of the Lord President, as the head of the independent judiciary and sheriffs principal, to ensure the efficient disposal of business through Scotland’s courts, including sheriff courts. In addition, the 2008 act provides that the First Minister, the Lord Advocate, the Scottish ministers and members of the Scottish Parliament must uphold the continued independence of the judiciary. I am clear that the amendments have implications for the statutory responsibilities of the independence of the judiciary and the Lord President being responsible for the management of the courts.

Alongside those important constitutional principles, there is a good practical reason why the 2008 act operates in that way: the independent judiciary know better than anyone how cases can and should be managed through the courts.

When the Lord President, in consultation with the relevant sheriff principal, considers that it is appropriate to establish a specialism in domestic abuse cases in a particular sheriffdom, they are able to do so. For example, as we have heard, a specialism in domestic abuse cases operates in Glasgow and such cases are heard together. That happens in Edinburgh, too. The Lord President can do that without a requirement for the involvement or approval of the Scottish ministers or the Scottish Parliament, which is in line with the principles of the 2008 act that I have outlined.

It is difficult to envisage a situation in which the Scottish ministers or the Scottish Parliament would be better placed than the Lord President and the sheriff principal to assess whether such a specialist sheriff was required in a particular area. Therefore, it is not clear that that power would ever be used by the Scottish ministers.

Notwithstanding those issues, I am clear that specialist domestic abuse courts are one way in which the justice system’s response to domestic abuse has improved and can continue to improve in the future. When the volume of cases means that it is not practical to have a dedicated court, the Scottish Courts and Tribunals Service provides specific ring-fenced slots in the court programme to deal with domestic abuse cases. That approach is taken in places such as Falkirk, Dunfermline, Livingston and Ayr.

Delays in dealing with domestic abuse cases were an issue around four years ago, but that is no longer the case. In the past three years, the Scottish Government has provided additional funding of £2.4 million per year to the Scottish Courts and Tribunals Service and the Crown Office and Procurator Fiscal Service to support their work to reduce waiting times for domestic abuse cases in all courts around Scotland. As a consequence, cases involving domestic abuse around Scotland now have trial diets set within the optimum timescale of eight to 10 weeks.

There is a clear expectation that court staff and the judiciary in all courts are able to deal appropriately and sensitively with cases involving domestic abuse. The Scottish Courts and Tribunals Service recently engaged with Victim Support Scotland to design and run victim awareness training events for staff. The training was provided to all front-line staff in the sheriff courts and High Courts who come into contact with victims and witnesses during their attendance at court, and 264 members of the courts and tribunals service received training over 30 sessions during 2015 and 2016. Judicial training is a responsibility of the Lord President and training on domestic abuse for members of the judiciary is provided by the Judicial Institute for Scotland.

In addition to training, provisions in the Victims and Witnesses (Scotland) Act 2014 ensure that automatic access to special measures such as screens and videolinks are available in all courts for vulnerable witnesses, including victims of domestic abuse.

I have concerns that involving the Scottish ministers in arrangements for the operation of the courts could set a precedent for all specialist courts, and that is not the intention of the Judiciary and Courts Act 2008.

John Finnie

Cabinet secretary, you will recall that, following the closure of certain sheriff courts, remote facilities were put in place. It was intended that one of the major beneficiaries of that provision would be victims of domestic violence, but that has not been the experience in the Highlands. What assessment has been made of that? You commented on judicial training, but you will know of examples such as the appeal court judgment last year—the appeal was upheld—which made it quite apparent that there was a dearth of training or understanding of the issue.

Michael Matheson

I cannot comment on a particular disposal that was made by a court, including the appeal court, for obvious reasons.

A training package on domestic abuse cases is provided by the Judicial Institute of Scotland and is available to all sentencers, as is a whole suite of training on a range of other offences, such as sexual and violent offences, and family law matters.

I know that there have been issues in the Highlands, which have been discussed directly with Sheriff Principal Pyle. He has made it clear that the way in which they try to operate there is by clustering cases together. When there are a number of cases relating to domestic abuse that they can bring together to be considered at the court in Inverness, they try to do that. The challenge is that, given the number of cases that they deal with, they would have difficulty in sustaining a specialist court. That is part of the challenge in meeting the needs of remote and rural areas, which was highlighted in Liam McArthur’s comments on island communities and how specialist courts could be sustained and maintained.

I understand that amendment 28 would require the Scottish ministers to publish a report on the operation of the new domestic abuse offence and of offences that are aggravated under section 1(1) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. The report would be required to be published at the end of the two-year period after the proposed legislation had received royal assent.

I agree that it is important that we monitor and evaluate the effect of changes that we make to legislation to ensure that those changes have the effect that we intended. That is true whether the legislation in question creates a new criminal offence or criminal offence aggravation or makes changes to criminal procedure or to the powers of police or prosecutors. However, much of the information that amendment 28 requires to be included in the report will be routinely published by the Scottish Government.

When a new offence or aggravation is created, existing publications, such as those concerning recorded crime and criminal proceedings, will collect information on the new offence or aggravation. That is already happening with the new intimate images offence and the domestic abuse aggravation in the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, which came into force earlier this year, and it will happen for the proposed legislation, too. That means that figures for the number of cases that are brought under, and the number of people who are convicted of offences under, section 1 of the bill will be included in annual statistics on criminal proceedings, as will the figures for cases in which there is an aggravation relating to partner abuse under section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.

Information about the length of time that it takes the courts to dispose of particular categories of cases is not routinely published. However, work is on-going to consider what additional data it might be useful to collect when the domestic abuse offence comes into force. It is important not to rush to lay in statute the specific details of what data must be recorded and published; it is better to consider that in the round in consultation with key interests. I would be happy to meet Claire Baker and others to discuss what might be possible ahead of stage 3, if that would be helpful.

Amendment 28 in its current form is not necessary. Such a reporting requirement would set us down the path of creating separate reports for different offences whenever a new offence is created, and that would risk increasing the burden on colleagues who collect criminal justice data while providing information that is already available in existing publications.

I know that the committee is keen to undertake post-legislative scrutiny of legislation that it has considered, and I expect and hope that the committee will revisit this important piece of legislation in the years to come should it be passed by the Parliament. Adding more bureaucracy, as the amendment would do, is unnecessary to enable Parliament and committees to undertake the essential part of their role in holding the Government and those who operate legislation to account.

Amendment 28 also raises similar issues to those that amendment 27 raises in that it requires the Scottish ministers to involve themselves directly in matters such as the programming of our courts, which are appropriately the responsibility of the Lord President and sheriffs principal. Although I understand why members might be interested in the issues surrounding the use of domestic abuse courts and the clustering of cases in non-domestic abuse courts, given the impact that that has on the independent role of the Lord President, his office should be fully consulted on the matter before any changes are agreed. For those reasons, I am happy to discuss the matter further before stage 3 in order to allow more detailed consideration of the issue and to ensure that the Lord President’s office has been given an opportunity to engage in the discussion and to consider the issues.

I invite the member to withdraw amendment 37 and not to move amendments 27 and 28.

Claire Baker

I thank all members, including the cabinet secretary, for their comments. The discussion about how we can make progress has been interesting, and I will try to cover some of the points that have been raised.

I agree that the cultural change has been slow. Members have made good points about judicial training and the gaps in training that have been identified. It is not possible to address that issue in the proposed legislation, which is why I have looked at domestic abuse courts.

I recognise the cabinet secretary’s reservations about amendment 27 but, as he pointed out, the amendment specifies that an order could be made only with the consent of the Lord President. Although I also recognise and welcome the fast-tracking that happens in certain cases, it is not unreasonable to expect a specialist sheriff to operate in all areas around Scotland. That is necessary, and I am disappointed that we have not reached that point, given that we had a pilot in 2004 that was positively received. I understand the points that the cabinet secretary makes, but I intend to press amendment 27.

I also hope that ministers will reflect on the need for the post-legislative scrutiny of a review. Although the cabinet secretary outlined his reservations about the amendment being too specific and said that the information is already published, it can sometimes be difficult to find that information. A report that gathers together relevant cases would be better.

The Convener

We have not yet reached amendment 27; it is amendment 37 that you are speaking to.

Claire Baker

I have indicated what I intend to do when I am called to move amendment 27. I just wanted to let members know at this stage that I am keen to press that amendment.

Amendment 37, by agreement, withdrawn.

Section 12 agreed.

The Convener

That concludes our consideration of amendments at stage 2 thus far. The committee will consider the remaining stage 2 amendments on 5 December. I thank the cabinet secretary and his officials for attending.

The Convener

Agenda item 6 is consideration of the Domestic Abuse (Scotland) Bill at stage 2. I ask members to refer to their copy of the bill and to the marshalled list of amendments.

I welcome again the cabinet secretary, who has been joined by different officials.

After section 12

The Convener

Amendment 13, in the name of Mary Fee, in is a group on its own.

Mary Fee

The purpose of amendment 13 is to strengthen the bill by requiring the Scottish Government to produce an annual report

“as soon as practicable after 31 March each year”.

The report would contain information on the offences that are created by section 1 of the bill and on aggravated offences under the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, including information on

“the types of support and assistance”

that victims were provided with,

“the average period of time during which support and assistance was provided,”

and the funding that was provided to secure that support. The report would also contain information about the number of relevant proceedings in relation to which special measures were applied for and authorised.

It is my intention that the new reporting mechanism will build an evidence base that could be used to improve services for victims, and to demonstrate that the bill is being properly implemented. The annual report would become a vehicle to ensure that support is provided to victims of domestic abuse, that there is appropriate funding for the voluntary and third sector organisations that support victims, and that special measures are provided for victims and witnesses who appear in court.

There is a significant level of consensus on the aims and objectives of the bill, as it stands. Amendment 13 would simply establish a reporting mechanism to ensure that the Government, the courts and public services deliver the ambitions for better victim support that we all share.

I move amendment 13.

The Convener

As members have no comments, I invite the cabinet secretary to respond.

Michael Matheson

As I understand it, amendment 13 is intended to address concerns about the need to ensure that effective support and assistance is in place to help victims of domestic abuse. I recognise that its intention is to collect information that would enable steps to be taken to monitor and improve how support is provided to victims of domestic abuse.

Although I sympathise with the intention behind amendment 13, I am concerned that it risks putting a significant burden on the organisations that provide support to victims of domestic abuse, which are mainly third sector bodies, and that that burden could mean that less of the funding that is given to those bodies would go directly to helping victims.

Many third sector groups that provide support to victims of domestic abuse receive funding from the Scottish Government, and it is a condition of that funding that they report on how the money is spent and on what support they provide to victims. I am concerned that the level of detailed information that amendment 13 would require third sector groups to collect and pass on to the Scottish Government would be disproportionate to the aim of effectively monitoring the support that is provided to victims of domestic abuse; indeed, it would mean that time and money could well be spent on reporting that would not provide insight into how services could be improved.

In order for the information that amendment 13 would require to be included in the annual report to be collected, third sector groups and other agencies that provide support to victims would have to record and transmit to the Scottish Government information about the length of time for which they provided support to each individual, the type of support that they provided and the manner in which it was provided.

In 2016-17, Police Scotland recorded 27,496 incidents of domestic abuse that resulted in the recording of at least one crime. If a significant proportion of the victims sought support and assistance from third sector bodies, the amount of data that they would be required to record and provide to the Scottish Government would be very large.

Given that each case will be quite different, any attempt to categorise the type of assistance and support that were provided or the manner in which they were provided would not necessarily provide the kind of detailed information that would enable decisions to be made on how services could be improved.

Amendment 13 is specifically concerned with cases involving the committing of an offence under section 1 of the bill, or an offence in which the domestic abuse aggravation in section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 applies. Many of the groups that provide support to people who experience abuse do so irrespective of whether the victim has reported the matter to the police, and will not necessarily know whether the victim has done so. Therefore, an additional specific burden would be placed on some third sector bodies in relation to the breakdown between help that is offered to people where an offence has been committed and where an offence has not been committed.

There might also be data protection issues with an approach that would require that information be shared between the police and third sector groups without the prior agreement of the subject of the data. That could add to third sector groups’ difficulty in providing accurate information about the cases to which amendment 13 relates.

I have great sympathy with the thinking that lies behind amendment 13, and with the amendment that was lodged by Claire Baker relating to reporting on the operation of the new domestic abuse offence, which was debated on 21 November. However, we should not rush to specify in law the exact detail of what data should and should not be collected. There should be a process in which key interests are given the opportunity to offer views on what information would be proportionate and valuable to inform understanding of how the legislation is operating. That process should also be informed by the fact that information will be published on the operation of the legislation as part of the existing data that is routinely made available by the Scottish Government in our published surveys of criminal proceedings, recorded crime and crime and justice.

I also have concerns that parting from the normal approach to the collection of data for each new piece of legislation might not be the most appropriate approach.

I am happy to work with Mary Fee and Claire Baker ahead of stage 3 to consider whether additional steps are required to ensure that information relating to the provision of support and assistance to victims of domestic abuse is collected and made available. However, for the reasons that I have outlined, I am concerned that the approach that is proposed in amendment 13 would place too great a burden on the groups that provide support, and that they would have to meet the requirements of that burden from their existing resources, which would have the potential unintended consequence of reducing direct support to victims.

I therefore invite Mary Fee to seek to withdraw amendment 13.

Mary Fee

I thank the cabinet secretary for his remarks. During the committee’s evidence sessions on the bill, members heard moving testimony and compelling evidence about forms of abuse that are not sufficiently addressed in the law. As I said earlier, there is consensus on the need to tackle domestic abuse and to close the gap, which is what the bill seeks to do. I believe that my amendment would strengthen the bill by placing a requirement on ministers to produce an annual report. The reporting provisions that I have proposed in my amendment resemble the provisions of the Human Trafficking and Exploitation (Scotland) Act 2015. I believe that including reporting provisions in the bill would help to ensure that victims are properly supported and that there is adequate funding. In my view, the reporting mechanism will deliver improvements in services, and for that reason I will press my amendment 13.

The Convener

The question is, that amendment 13 be agreed to. Are we agreed?

Members: No.

For

Corry, Maurice (West Scotland) (Con)
Fee, Mary (West Scotland) (Lab)
Kerr, Liam (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Finnie, John (Highlands and Islands) (Green)
Gougeon, Mairi (Angus North and Mearns) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 13 disagreed to.

The Convener

Amendment 26, in the name of Maurice Corry, is in a group on its own.

Maurice Corry

I would like the Scottish ministers to take steps to allow for the bill’s provisions to be properly conveyed and promoted to ensure that we have maximum awareness, understanding and clarity about the operation of the act among the public and Police Scotland and its team, including an understanding of

“the kind of conduct that constitutes abusive behaviour for the purposes of an offence under section 1(1).”

I move amendment 26.

The Convener

Are there any comments or questions?

John Finnie

Can Mr Corry outline the range of his suggestion—I see a lot of merit in such promotion—and how that would look? I presume that Police Scotland and the Crown Office and Procurator Fiscal Service would develop their own procedures, but how would Mr Corry envisage raising public awareness?

Maurice Corry

It should be done on social media and traditional media, including radio and television. I would ask for information to be put in public places, such as libraries, police stations and health centres—where it is likely that victims may go—and every government establishment that the public frequents.

Michael Matheson

Amendment 26 places a duty on the Scottish ministers to promote public awareness of the new offence of domestic abuse. I repeat what I told the Justice Committee when I gave evidence on the bill at stage 1 in June. The Scottish Government will take steps to promote awareness of the new offence ahead of it coming into force. That will include raising awareness as to the kind of behaviour that would amount to abusive behaviour as set out in the legislation.

It has always been our intention to raise public awareness prior to the implementation of the offence and so, as I advised the committee a few months ago, amendment 26 is unnecessary to achieve what Maurice Corry seeks, because that will happen anyway. In addition, such a requirement is not normally included in legislation. The statute book would become rather crowded if we were to include a provision in relation to publicity for every new offence or policy.

When a new offence is created or there is another significant policy change, the Scottish Government will always consider what steps are required to ensure that the public is made aware of it. Members may remember that, earlier this year, the Scottish Government ran a campaign to coincide with the commencement of the intimate images offence contained in the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. When statutory jury directions concerning the way in which victims of certain sexual offences may react were commenced, we funded Rape Crisis Scotland to produce the “I just froze” campaign to change public understanding of why victims of rape do not always fight back or report the crime straight away.

On the basis of the commitment that I gave to the Justice Committee in June and which I have repeated today, I ask the member to withdraw amendment 26.

Maurice Corry

I intend to press the amendment. I am slightly surprised by the minister’s response, because that is not the view that he took when we debated the subject in Parliament.

The Convener

The question is, that amendment 26 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Corry, Maurice (West Scotland) (Con)
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Fee, Mary (West Scotland) (Lab)
Finnie, John (Highlands and Islands) (Green)
Gougeon, Mairi (Angus North and Mearns) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
McArthur, Liam (Orkney Islands) (LD)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 26 disagreed to.

The Convener

Amendment 27 was debated with amendment 37 on day 1 of stage 2 proceedings.

Amendment 27 moved—[Claire Baker].

The Convener

The question is, that amendment 27 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Fee, Mary (West Scotland) (Lab)
Finnie, John (Highlands and Islands) (Green)

Against

Adam, George (Paisley) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
McArthur, Liam (Orkney Islands) (LD)

Abstentions

Corry, Maurice (West Scotland) (Con)
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)

The Convener

The result of the division is: For 2, Against 6, Abstentions 3.

Amendment 27 disagreed to.

The Convener

Amendment 28 was debated with amendment 37 on day 1 of stage 2 proceedings.

Amendment 28 moved—[Claire Baker].

The Convener

The question is, that amendment 28 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Corry, Maurice (West Scotland) (Con)
Fee, Mary (West Scotland) (Lab)
Finnie, John (Highlands and Islands) (Green)
Kerr, Liam (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)

The Convener

The result of the division is: For 6, Against 5, Abstentions 0.

Amendment 28 agreed to.

The Convener

Amendment 38, in the name of Liam Kerr, is in a group on its own.

Liam Kerr

The purpose of amendment 38 is to strengthen the bill. Throughout the process, the committee heard extensive evidence about the requirement for emergency barring orders. Amendment 38 requires the Scottish ministers to carry out a review of legal measures that would have the effect of temporarily excluding a perpetrator or a suspected perpetrator of domestic abuse from the home of the person they have abused or potentially abused. The review would need to take place within one year of royal assent and the Scottish ministers would be required to consult with certain specified persons in carrying out the review. The results of the review would need to be published and laid before Parliament, and the Scottish ministers would be required to announce their intentions in respect of the results of the review.

I appreciate that the cabinet secretary made a public commitment in his letter of 6 November to the Justice Committee to formally consult on the introduction of new powers in this area, but I would prefer that commitment to be in the bill to obligate it.

I move amendment 38.

Michael Matheson

I thank members for considering the important issue of how people who are at risk of domestic abuse can be better protected. I understand that amendment 38 is directed at the issue of emergency barring orders and I am aware that the committee heard a range of opinion on the operation of emergency barring orders at its meeting on 31 October. Although a number of views were offered about the potential benefits of emergency barring orders, there was also a wide range of unanswered questions.

After that evidence session, I wrote to the committee to explain how the Scottish Government intends to consider the issues relating to emergency barring orders. I explained that a consultation would be published in early 2018 and that it would seek views on the many unanswered questions about how such legislation might operate. Those include, what exactly should be the basis or grounds on which orders may be sought or granted? Who is to apply for such orders and what court procedures are to be involved? Who should have the power to exclude someone from their home? Are there to be powers of arrest? What kind of funding would be needed to operate the scheme? Those are just a few of the many questions that will need to be explored and they will be explored carefully through the Scottish Government’s consultation.

Today, therefore, I confirm that, as I advised in my recent letter to the committee, the Scottish Government will consult justice partners such as Police Scotland and the Crown Office, as well as other people and groups who have an interest in these issues.

Liam Kerr’s amendment 38 is well-intentioned and it picks up on the committee’s discussions. However, the Scottish Government has already committed to consulting on the issues, so the amendment is unnecessary to achieve what is being sought, as it will happen anyway. In addition, it is not best practice to clutter the bill with provisions that say nothing more than what the Government has already undertaken to do, especially as I have just now repeated that undertaking on the record. In light of my firm commitment, I ask Liam Kerr to withdraw amendment 38.

Liam Kerr

I thank the cabinet secretary for his remarks. I am comforted and reassured by those remarks and their strength. For that reason, I shall withdraw amendment 38.

Amendment 38, by agreement, withdrawn.

Sections 13 and 14 agreed to.

Long title agreed to.

The Convener

That ends stage 2 consideration of the bill. The committee will suspend briefly to allow a change of witnesses.

The Presiding Officer (Ken Macintosh)

The next item is stage 3 proceedings on the Domestic Abuse (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2, which is Scottish Parliament bill 8A, the marshalled list and the groupings. The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate.

Members who wish to speak in the debate on any group of amendments should press their request-to-speak buttons as soon as possible after I call that group.

Members should refer to the marshalled list of amendments. I draw members’ attention to the fact that amendments 7 and 8 appear in the wrong order in the marshalled list. Amendment 8 should be considered and disposed of before amendment 7; therefore, when we reach that point in the proceedings, I will call amendment 8 before amendment 7. I will remind members again before we reach that point. I hope that that is clear.

Section 12A—Review of operation of Act

The Presiding Officer

Amendment 1, in the name of Michael Matheson, the Cabinet Secretary for Justice, is grouped with amendments 2 to 13, 13A and 14 to 16.

The Cabinet Secretary for Justice (Michael Matheson)

Section 12A of the Domestic Abuse (Scotland) Bill introduces a requirement for the Scottish ministers to report to Parliament on the operation of the domestic abuse offence and the existing statutory domestic abuse aggravation at section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. The amendments in my name in this group respect the overall aims of the provision that Claire Baker introduced into the bill at stage 2. However, my amendments are intended to make much clearer exactly what information such a report is required to contain and to make some adjustments to ensure that the information collected is as useful as it can be in assessing the effectiveness of the domestic abuse offence and the domestic abuse aggravation.

Amendments 1 and 2 are technical amendments that are intended to improve the readability of the provision and make it as clear as possible at the outset that the report is to relate to the domestic abuse offence at section 1 of the bill and the existing domestic abuse aggravation at section 1 of the 2016 act. Amendment 3 tidies the requirement to report on the number of cases in which criminal proceedings are undertaken. Amendment 14, in the name of Claire Baker, adds a requirement for the report to include information about the use of the child aggravation at section 4 of the bill. I agree that it is important to monitor the effectiveness of that aggravation in reflecting the harm caused to children by domestic abuse, and we support amendment 14.

Amendment 4 extends the requirement to report on the number of convictions so as to require the report to provide information on both the number of convictions for the new offence and the number of convictions for offences where the domestic abuse aggravation in the 2016 act has been proven. Amendment 15, in the name of Claire Baker, adds a requirement for the report to include information on the number of cases in which the court imposes a non-harassment order, both to protect the primary victim and to protect children. Again, that is a useful addition and we will support the amendment.

Amendment 5 amends the provision requiring the report to include information concerning the average time taken to dispose of cases so as to provide greater certainty as to what information is required to be provided in the report. The amendment provides that the report must include information regarding the average length of time from the service of a complaint or indictment on the accused person to a finding or verdict as to guilt—that is the main aspect of the proceedings in the case. Some might suggest that the date of sentencing should be used as the end point. However, we consider that there is a risk that cases in which a suspended or deferred sentence is imposed could significantly distort the case statistics and we think that the time taken by the courts to reach a verdict is the key consideration that should be reflected in the statistics.

Amendment 6 is intended for the avoidance of doubt so that the requirement for the report to include information about the experience of witnesses relates to the experience of witnesses at court. Amendment 16, in the name of Claire Baker, provides that the reference to witnesses includes child witnesses. Although the provision as it stands would already include child witnesses, we are content to support that amendment.

Amendments 7 and 9 address an issue with section 12A(3) that arises from the fact that it is not clear how the reference to

“courts constituted to specialise in dealing with the offences the commission of which involves domestic abuse”

would be interpreted. The Scottish Courts and Tribunals Service has advised that, although there are courts that sit as specialist courts in that they are presided over by a sheriff who has a specialism in domestic abuse cases, they are not constituted as specialist courts. Therefore, amendments 7 and 9 would replace the existing section 12A(3) with a provision that requires the statistical information to be broken down by court area and type of court. That would enable someone reading the report to compare, for example, statistics for sheriffdoms that have made arrangements for a sheriff with a specialism in domestic abuse cases to handle such cases with those that do not have such arrangements in place, and to compare statistics on the performance of justice of the peace courts with sheriff courts and the High Court.

Amendment 7 also requires that there should be distinct statistics in the report for both the offences referred to in amendment 1.

Amendment 8 is a minor amendment in order to cover clearly any additional information that ministers decide to include in the report to Parliament by virtue of section 12A(2)(e). For example, that could include information such as the number of cases reported to the police or the proportion of those that are reported to the procurator fiscal for consideration of prosecution.

Amendments 10 and 11 would amend section 12A(4). That subsection currently requires the Scottish ministers to state whether they intend to recommend to the Lord President that additional specialist domestic abuse courts should be constituted and, if not, why they are not making such a recommendation. That issue was debated at stage 2 in the context of other amendments that were defeated. The Judiciary and Courts (Scotland) Act 2008 provides that the Lord President is solely responsible

“for making and maintaining arrangements for securing the efficient disposal of business in the Scottish courts”.

In other words, this Parliament has legislated to protect the constitutional independence of the Lord President in respect of court programming. As such, it would not be constitutionally appropriate for the Scottish ministers to become involved in the details of how the Lord President and sheriffs principal arrange court business. However, I recognise the value of ensuring that the report includes information about how court business is arranged, including in different areas, or types of court, such as specialist courts that hear domestic abuse cases, to assist anyone reading the report who wants to assess how the courts are operating. Amendments 10 and 11 therefore require the Scottish ministers to seek information from the Lord President on how court business has been arranged so as to ensure the efficient disposal of cases involving the offences that the report covers.

Amendment 12 is a technical amendment that would amend section 12A(5) so as to make it clear that the Scottish ministers are required to report to Parliament as soon as practicable after the reporting period has ended.

Amendment 13 would amend section 12A(6) so as to provide that the reporting period is the period of three years beginning with the date on which the domestic abuse offence comes into effect.

Parliament has already recognised that there is a need to ensure that police, prosecutors and those working in the third sector are trained on the new offence before it comes into effect and that there should be a public information campaign to raise awareness of the new offence to coincide with its commencement. As such, there will be a period of some months between the date of royal assent and the commencement of the legislation.

Claire Baker’s amendment 13A would, if accepted, reduce the reporting period proposed in amendment 13 from three to two years. It may be helpful if I explain the reason that we propose that the reporting period should cover the first three years in which the new offence is in force.

As members will be aware, the offence in the bill is a course of conduct offence, and only conduct that is alleged to have taken place after the date on which the offence comes into force will be capable of being libelled as part of a course of conduct amounting to the new offence.

It is likely that there will be few prosecutions in the immediate aftermath of the commencement of the legislation. An increase is likely to happen only gradually—perhaps towards the end of the first year of commencement. We also know that victims of domestic abuse will often not report to the police for some time. That is currently the case, and it is likely that that will continue to be the case.

Therefore, in seeking to ensure that relevant information is included in the report, we think that a reporting period of three years from the date of commencement of the legislation will provide more scope for meaningful information on how the new offence is operating from the time that a prosecution is initiated through to the verdict. We think that two years is likely to mean a relatively short period for an assessment of how many cases have gone from initiation to prosecution to final verdict. By adding an extra year into the reporting period, the richness of the information in the report will be much improved.

Liam McArthur (Orkney Islands) (LD)

I certainly appreciate the logic behind having the three-year timeframe immediately after the commencement of the legislation. However, I suppose that there is an argument that some of the problems that the cabinet secretary has identified at the outset relating to the slow pace at which cases will come forward will be less applicable later on. Therefore, perhaps an initial three-year period could be followed by a two-year period.

Michael Matheson

I understand the point that Liam McArthur is making. The principal reason for the three-year period is that there is a danger that, with two years, we would largely have only one year’s-worth of data to consider, whereas the three-year period is more likely to give us two years of much more detailed information. We think that that would make the information much more meaningful in helping us to understand how the act is operating. However, I understand Liam McArthur’s point. The aim is to ensure that the data in the report is richer and more meaningful, which will allow us to take a much more considered view of how the legislation is operating. On that basis, I invite Claire Baker not to move amendment 13A.

I move amendment 1.

Claire Baker (Mid Scotland and Fife) (Lab)

At stage 2, I moved a number of amendments that were aimed at recognising the value of specialist domestic abuse courts and giving consideration to increasing their numbers. I was pleased to have section 12A accepted by a majority of the committee, resulting in the inclusion of a duty on the Government to report on the operation of the act.

I am inclined to support the majority of the Government’s amendments, which seek to clarify the content of the report and I thank the cabinet secretary for lodging them. I am grateful for the clarity that has been provided that amendments 7 and 9 will allow comparisons to be drawn between the different types of court. I am pleased that the Government accepts the need for a review and a report on the legislation in practice.

I lodged amendments that concern domestic abuse courts for three reasons. First, there is frustration at the slow progress in the development of specialist domestic abuse courts. Glasgow’s court was established in 2004 and Edinburgh’s was established in 2012. There are four courts that cluster—in Dunfermline, Ayr, Livingston and Falkirk—and, although other courts operate a fast-track system, large areas of the country are not served by any kind of specialist court for domestic abuse cases: Dundee, Aberdeen and the Scottish Borders, for example. A postcode lottery is operating in victims’ access to justice.

Secondly, there are concerns about consistency in decision making and confidence in the decisions that are made. Members may have read about cases in which community sentences were given for what appeared to be serious domestic abuse crimes. I have been contacted by victims who were very distressed by those sentences. In addition, there was a case in 2016—it was not an isolated case—in which the sheriff decided to send the alleged victim, who was a mother, to jail for two weeks under contempt of court because, according to the sheriff, she had not fully participated in the court proceedings. Those cases were not heard in domestic abuse courts.

I recognise that the decision is for the sheriff, based on all the evidence that is before them, but a specialist domestic abuse court provides the victim with greater confidence in how decisions are made, better appreciates the victim’s experience, and can make better decisions in the victim’s interest.

Thirdly, I fully support the legislation and the introduction of a specific statutory offence that will cover coercive and controlling behaviour as well as physical abuse. However, there will be challenges to the legislation in the courts, in particular on the inclusion of coercive behaviour. I would rather see the act’s provisions being tested in a specialist court that has greater experience and understanding of the legislation and of what the Parliament sought to achieve with the legislation.

The report that will be presented to Parliament will provide valuable information on the use of the legislation and its specialist measures, but it will also provide information that will enable us to compare the decision making, the outcomes and victims’ experiences in specialist and non-specialist courts. We will have to wait and see what the evidence shows, but that information could provide evidence to support the expansion of domestic abuse courts.

That is why the bill states that the Scottish ministers must take a view on the evidence, explain that position, and make a recommendation to the Lord President if they judge that that is the best way forward. That is why I am not inclined to support amendments 10 and 11. I do not believe that the bill as it stands questions judicial independence; the recommendation would be to the Lord President in his capacity as chair of the Scottish Courts and Tribunals Service rather than as head of the judiciary. It would be a recommendation that relates to high-level policies and priorities, which the Government is in a position to make. However, the Government’s alternative this afternoon is disappointing because it is timid; it requests information from the Lord President only on the current arrangements and misses the point of the report as a means to influence or inform future decisions.

I seek support for amendments 14, 15 and 16, which will result in the report including reporting around the specific measures on children. I have the support of the NSPCC in Scotland, Barnardo’s Scotland, Children 1st and Scottish Women’s Aid for the amendments and I welcome the Government’s support.

The bill’s recognition that children are adversely affected by domestic abuse is significant, and we need to make sure that the measures—the inclusion of an aggravation in relation to a child and the use of non-harassment orders—are used effectively and that the experience of children as witnesses is understood. The data collection and analysis will enable us to do that. We owe it to children to be fastidious about monitoring how the new act is operating, and to ensure that it is effective in recognising the harm that domestic abuse causes them and taking the right measures to protect them.

I recognise the logic in having the report period start from the day on which section 1(1) comes into force, but I questioned the extension to a three-year reporting period. There are concerns that that will mean that we may not see a report until 2022, and people are keen to see how the legislation is working. However, following further discussion with the sector and with the cabinet secretary, I am clear that I want to see a comprehensive report that will provide us with enough information to move forward on the issue of how we manage domestic abuse cases through the courts, so I am inclined to support the Government’s proposal in amendment 13.

Liam Kerr (North East Scotland) (Con)

The Scottish Conservatives have reviewed the amendments in group 1 and note that virtually all of them seek to improve drafting and/or post-legislative scrutiny. I can therefore confirm that, with one exception—amendment 13A—we shall support all the amendments in group 1, although I note that Claire Baker does not intend to move amendment 13A.

In particular, and for the avoidance of doubt, we will support amendments 10 and 11, in the name of Michael Matheson. The purpose and effect paper from the Scottish Government is correct, in my view, on what the amendments do; it says that they recognise

“that the Scottish Ministers have no power to become involved in matters relating to the organisation of court business, while ensuring that the report does provide information from the Lord President on how they are organising court business with regards offences relating to domestic abuse.”

It is always preferable that the executive should not give directions to the judiciary, particularly not to the Lord President. Therefore, I confirm that we will agree to amendments 10 and 11.

For the avoidance of doubt, if Claire Baker moves amendment 13A, we will not vote for it.

John Finnie (Highlands and Islands) (Green)

I wish to speak about amendments 10 and 11. The cabinet secretary talked about the Lord President making and securing arrangements for the court. That is true—of course it is true—but we have also seen court reform legislation passed in this Parliament and it is quite clear that the amendment that was agreed to at stage 2 was deemed competent. Although I accept the view—if we take a very narrow view of the role of the Lord President—that it is not constitutionally appropriate, and I readily accept the separation of powers, this is a law-making building, and just as we have seen with court reform, I am keen that amendments 10 and 11 are opposed.

In the past we have seen excessive deference to the Lord President—timidity, as my colleague Claire Baker referred to it—and I am very keen that nothing inhibits the progress that should be made on domestic abuse courts. The phrase “making and securing arrangements” makes it clear that we do not have parity of access to justice for victims of domestic violence across Scotland—that is, access to a specialist court service. On that, the courts are out of step with other partners in addressing this scourge. Third sector organisations, the police and the prosecution service all recognise that there are specialist skills attached to the area, and yet we still have cases being dealt with in non-specialist courts. Therefore, we will not support amendments 10 and 11.

Liam McArthur

I confirm that we, like others, will support the vast majority of the helpful amendments in this section. The area of controversy is principally around amendments 10 and 11. The purpose and effect briefing from the Government that outlined the concerns about the amendment that was passed at stage 2 was helpful. When the report provides an explanation of the lived experience of this legislation of those whom it is there to protect, it will be incumbent on us all to form a view as to whether people have equal access to justice and a consistent experience, wherever they may live in the country.

I imagine that ministers will form a view, too. How that will be expressed to the Lord President and by this Parliament is another question entirely. It is perhaps naive to assume that in producing the report we will not come to a view on where it leads us in relation to specialist courts or down the route of ensuring greater consistency of specialist knowledge and understanding within the Crown Office and Procurator Fiscal Service and among sheriffs and their staff.

I will listen with interest when the cabinet secretary winds up on this group, but I share some of the sentiments that John Finnie expressed in relation to amendments 10 and 11. Again, for the avoidance of doubt, I am happy to support amendment 13 and I note that Claire Baker will not move amendment 13A, which is a sensible approach.

Michael Matheson

I recognise the concerns that Claire Baker raised regarding the consistency of sentencing approach within our sheriff courts, and the points that were raised by John Finnie. Those matters were considered and debated at stage 2. The members will be aware of some of the concerns that were echoed at that point, about the dangers of specialist courts in some rural areas potentially drawing people longer distances away from home in order to have their case considered in a specialist court. A practical example that was put to me was the existing arrangement in Portree sheriff court, which considers domestic abuse cases. If Inverness was to become a specialist court for domestic abuse, women would have to go from Portree to Inverness for the purpose of attending that court.

Rhoda Grant (Highlands and Islands) (Lab)

It is really important that all victims of domestic abuse receive the same support and service. Is it not possible that, on certain days, smaller district courts could be set aside for domestic abuse cases? Then the specialists who support victims and the sheriffs who have an understanding of the issues could be there to handle those cases.

Michael Matheson

That is exactly what a number of sheriffs principal do at the moment. They try to cluster cases so that they can arrange to have support services at the court at that point, and also, if possible, a single sheriff will deal with those cases. That will not be possible in every case, but it is something that sheriffs principal are taking forward.

Liam McArthur made an important point about the value of the report. It reinforces why I believe that the three-year timeframe is particularly important. The richness of data that can be captured over a three-year period will allow us to develop a much more informed and considered view about what further measures can be taken. That will help to inform ministers on the experience of victims and the way in which the courts are operating on those matters, and I have no doubt that the Lord President and the judiciary will want to take the findings of that report into consideration. I suspect that it will help to inform future practice and the approach that our courts and judiciary take in this area.

The value of the report is underscored by the potential impact that it could have by helping to adjust practice and altering the way in which our courts operate. However, the ultimate decision in doing that is a matter for the Lord President, given his role in the judiciary.

I encourage members to support all the amendments in my name. I accept and welcome the fact that Claire Baker will not move amendment 13A.

Amendment 1 agreed to.

Amendments 2 and 3 moved—[Michael Matheson]—and agreed to.

Amendment 14 moved—[Claire Baker]—and agreed to.

Amendment 4 moved—[Michael Matheson]—and agreed to.

Amendment 15 moved—[Claire Baker]—and agreed to.

Amendment 5 moved—[Michael Matheson]—and agreed to.

Amendment 16 moved—[Claire Baker]—and agreed to.

Amendment 6 moved—[Michael Matheson]—and agreed to.

The Presiding Officer

I remind members that we will change the order by calling amendment 8 before amendment 7.

Amendments 8, 7 and 9 moved—[Michael Matheson]—and agreed to.

Amendment 10 moved—[Michael Matheson].

The Presiding Officer

The question is, that amendment 10 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division. As it is the first division in the debate, I will ring the bell to call members to the chamber and I suspend the meeting for five minutes.

The Presiding Officer

We move to the division on amendment 10.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harris, Alison (Central Scotland) (Con)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
McNeill, Pauline (Glasgow) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)

The Presiding Officer

The result of the division is: For 90, Against 29, Abstentions 0.

Amendment 10 agreed to.

Amendment 11 moved—[Michael Matheson].

The Presiding Officer

The question is, that amendment 11 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harris, Alison (Central Scotland) (Con)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
McNeill, Pauline (Glasgow) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)

The Presiding Officer

The result of the division is: For 89, Against 29, Abstentions 0.

Amendment 11 agreed to.

Amendment 12 moved—[Michael Matheson]—and agreed to.

Amendment 13A not moved.

Amendment 13 moved—[Michael Matheson]—and agreed to.

Schedule

The Presiding Officer

Group 2 is on non-harassment orders. Amendment 17, in the name of Linda Fabiani, is the only amendment in the group.

Linda Fabiani (East Kilbride) (SNP)

At stage 2, I placed before the Justice Committee an amendment that sought to make granting of non-harassment orders mandatory in cases of domestic abuse. I had come to believe that to be necessary from discussion, over many years, with victims of such abuse. It was very clear that the women felt that they had been let down by courts that had not granted such orders. That has been backed up by answers to my written parliamentary questions over the years, which I believe have shown that the courts issued fewer non-harassment orders than they should have issued. Such situations often result in fear and dread for the victim, and many have had to resort to civil actions to achieve some peace of mind.

That was all very well discussed by the Justice Committee, so I thank all its members for the serious consideration that they gave the matter. I understood some of the concerns that were expressed by members who had listened carefully to much evidence over the piece, and I recognised other concerns that were expressed by the Cabinet Secretary for Justice. I also recognised the commitment of everyone—especially that of the cabinet secretary—to strengthening the bill in the interests of victims, so I withdrew the amendment that would require mandatory non-harassment orders.

Amendment 17, which I offer for Parliament’s consideration today, does not demand mandatory non-harassment orders, but would adjust the provisions relating to non-harassment orders. The amendment provides that the court must make an order to impose a non-harassment order unless it is of the view that one is not necessary for the protection of the victim and/or the children who are involved in the case. That adjustment would create a presumption in favour of imposing a non-harassment order while retaining a measure of discretion for the court, when it concludes that such an order is not necessary in a given case. Thus, amendment 17 would change the provision that is currently in the bill, so that a presumption would be created in favour of imposing a non-harassment order unless the court is absolutely satisfied that one is not necessary to protect a victim of domestic abuse or the children involved in a case.

Certainly, the bill currently provides that a non-harassment order can be imposed without an application by the prosecutor in domestic abuse cases, so it already goes some way towards highlighting the importance of such orders to the court. My amendment 17, though, would go further by placing a greater onus on the court to justify why a non-harassment order is not necessary.

Lastly, the existing provision requires that reasons be given for whether or not a non-harassment order is imposed. Amendment 17 would change that so that reasons would be required only when a non-harassment order is not imposed. That reflects the presumption.

It is clear to me and many others that the present system does not work for victims. When a person is found guilty of abuse, it is surely logical for the victim to presume that the court and the system will take all possible steps to protect them from further potential physical or mental abuse.

The bill is taking excellent steps forward and I am convinced that a presumption in favour of imposing non-harassment orders will take us even further, so I ask members for their support.

I move amendment 17.

The Deputy Presiding Officer (Christine Grahame)

I call Rhoda Grant. [Interruption.] There was a mispressed button. Margaret Mitchell’s name has just popped up.

Margaret Mitchell (Central Scotland) (Con)

As Linda Fabiani explained, she lodged an amendment at stage 2 on non-harassment orders, which was equivalent to seeking a mandatory non-harassment order to follow a conviction on a charge of domestic abuse. Although I am sympathetic to the reasons why she wants to do that, which she has outlined again today, I considered that the amendment was a step too far and instead supported the provisions in the bill, which presented a more balanced approach. The member did not press the amendment and undertook to reflect on what had been said with a view to seeing how the bill might be strengthened at stage 3.

The new amendment 17 falls short of mandatory granting of non-harassment orders. It provides that the perpetrator, as well as the prosecution agent, must be heard before the court decides whether to grant such an order. It also provides, in what I found to be quite confusing terms, that if an order is not given, the court has to explain the basis of its decision. Therefore, amendment 17 is equivalent to a presumption in favour of granting a non-harassment order.

The Scottish Conservatives will support amendment 17, but we consider it essential in the interests of fairness, equality and good drafting that the provision be reviewed at the earliest opportunity in order to ensure that there are no unintended consequences.

Michael Matheson

I welcome amendment 17, which is in Linda Fabiani’s name. She has tirelessly raised the issue of non-harassment orders on behalf of a constituent of hers who was affected by domestic abuse. Amendment 17 will strengthen the non-harassment order regime by creating a presumption that a non-harassment order will be imposed unless the court considers that one is not necessary for the protection of the victim or children who are involved in the case.

It is important that the courts see non-harassment orders as a valuable part of the necessary approach to tackling domestic abuse. Such orders are protective orders that are used when a person has been subjected to harassment. Non-harassment orders are a key consideration when a court is assessing what disposal to impose following a conviction for domestic abuse. The bill already strengthens the non-harassment order regime by making it mandatory for a court to consider in every domestic abuse case whether to impose a non-harassment order, thereby allowing children to benefit from the protections of non-harassment orders in domestic abuse criminal cases without needing to apply to the court separately, and by requiring the court to have particular regard to victim safety when sentencing in domestic abuse cases.

Linda Fabiani’s amendment 17 is a welcome addition that will strengthen the bill in respect of non-harassment orders, so we support it.

Linda Fabiani

I thank everybody for their consideration, which I was asked to do by the constituent whom the cabinet secretary mentioned and by others. A strong message will be sent out that further harassment following conviction will not be tolerated and that it is not acceptable from anybody.

Amendment 17 agreed to.

The Deputy Presiding Officer (Christine Grahame)

As members will be aware, at this point in the proceedings, the Presiding Officer is required under the standing orders to decide whether, in his view, any provision of the bill relates to a protected subject matter—that is, whether it modifies the electoral system and franchise for Scottish parliamentary elections. The Presiding Officer has decided that no provision of the Domestic Abuse (Scotland) Bill relates to a protected subject matter and that, therefore, the bill does not require a supermajority in order to be passed at stage 3.

The next item of business is a debate on motion S5M-10218, in the name of Michael Matheson, on the Domestic Abuse (Scotland) Bill. I call Michael Matheson, the cabinet secretary, to speak to and move the motion.

The Cabinet Secretary for Justice (Michael Matheson)

I thank the members and clerks of the Justice Committee, the Finance Committee and the Delegated Powers and Law Reform Committee for their diligent consideration of the Domestic Abuse (Scotland) Bill. I also thank those who have taken the time to engage in the bill process and share their knowledge, experience and views during the scrutiny process. In particular, I applaud the courage of the individuals who shared with the Justice Committee their personal experiences of suffering domestic abuse. That assisted the committee’s consideration of the bill and helped the Parliament to gain a fuller understanding of what it is like to experience domestic abuse.

Members will recognise that attitudes towards domestic abuse have changed considerably since the Scottish Parliament was established, in 1999. Back then, some people—including some of those who worked within the justice system—were of the mindset that domestic abuse, especially when it did not involve physical violence, was a private matter and no business of the police or the courts. Attitudes have changed.

One effect of that has been that, as victims have become more confident that they will be taken seriously and more willing to come forward to the police, the true scale of domestic abuse in Scotland has been made more apparent. In 2016-17, nearly 59,000 domestic abuse incidents were reported to the police. However, we know that even that is likely to be a significant underestimate of the actual scale of domestic abuse. The 2014-15 Scottish crime and justice survey found that, of those who had experienced domestic abuse in the previous 12 months, around 20 per cent stated that the police came to know about the most recent incident. That is in contrast to a reporting rate of 38 per cent for all crime in that survey.

It is right that we also reflect on the changes to attitudes that have happened—and that are still happening—as the bill has proceeded through Parliament. The #MeToo campaign, which is shining a light on the experiences of all too many women across the world, only demonstrates further the need for the bill. Although attitudes to domestic abuse have changed and, as a society, we have a fuller and richer understanding of what domestic abuse is, the criminal law that is used to prosecute the perpetrators of domestic abuse has not reflected that understanding.

I pay tribute to Lesley Thomson, the former Solicitor General, who led from the front in publicly calling for a new criminal law approach to domestic abuse. It is worth recalling why she made that call. She said that, in her experience of prosecuting domestic abuse, the way in which the existing criminal law focused on individual incidents of assault or threatening or abusive behaviour was misguided because it did not reflect the way in which victims experience domestic abuse as an on-going course of abusive behaviour that is sustained over time, not as a few isolated incidents.

Responses to the subsequent Scottish Government consultation made it clear that there was a gap in the law in that it was difficult to prosecute cases in which an abuser behaved in a highly controlling, manipulative and abusive way towards their partner over a long period of time without using physical violence. Examples of the kind of behaviour that perpetrators may engage in are harrowing. Behaviour intended to humiliate or degrade their partner can include abusive name calling, sharing private information and making them eat food off the floor or from pet dishes. Perpetrators may also try to exert control over every aspect of their partner’s life, such as by preventing contact with family or friends, checking and controlling their use of their phone or social media, stopping them from attending work or college and making unreasonable demands about such things as food preparation, housekeeping, where the victim needs to be and when, and what the victim is allowed to wear. Those actions will not necessarily be accompanied by physical violence or overt threats, because the perpetrator knows that the victim may be in such fear of their partner that physical force or overt threats to them are not needed to exert horrendous control over them.

Even when a prosecution is possible using the current law, a conviction for a single incident of assault or threatening or abusive behaviour, for example, may leave the victim feeling, quite rightly, that the court process and the sentence imposed do not reflect the seriousness of the abuse—the background of long-term psychological abuse and controlling behaviour—that they have suffered. That is what we are addressing through the new offence of domestic abuse. The offence modernises the criminal law to reflect our understanding of how victims experience domestic abuse by providing a specific offence that is intended to be comprehensive in that the abuse can be prosecuted as a single offence, ensuring that the court considers the totality of the abuse that it is alleged the victim has experienced. It will enable the court to consider not only behaviour that would be criminal under the existing law, such as assault and threats, but psychological abuse and coercive and controlling behaviour that can be difficult to prosecute using the existing law.

The Justice Committee heard evidence from stakeholders that identified a number of ways in which the bill could be improved. Scottish Women’s Aid highlighted the importance of providing extraterritorial jurisdiction for the offence, and we amended the bill at stage 2 to do so. As this is a “course of conduct” offence, it is possible that, in individual cases, abuse may occur across a long period of time and in more than one jurisdiction, and the bill now caters for that.

Groups that represent the interests of children asked us to consider how the child aggravation could better reflect the harm that is experienced by a child who grows up in an environment where their parent or carer is being abused, irrespective of whether they see or hear the abuse or are present when that abuse takes place or whether the abuser directs that behaviour at the child or tries to involve the child in the abuse. We widened the scope of the child aggravation at stage 2 so that it can be proven if a reasonable person would consider that the perpetrator’s course of behaviour, or an incident that forms part of that course of behaviour, would be likely to adversely affect a child who lives with the victim or perpetrator.

That change has been warmly welcomed by key stakeholders. It means that the aggravation can apply when, for example, the perpetrator’s controlling behaviour has the effect of isolating a child, as well as the primary victim, from friends, family or other sources of support or where abusive behaviour undermines the ability of the non-abusing parent or carer to look after the child—for example, by restricting their access to transport, limiting their ability to get a child to doctor’s appointments or restricting their access to money and thereby limiting their ability to provide essentials for a child.

I am not under any illusion that creating a new offence of domestic abuse will, on its own, end domestic abuse. Changes to the mindset of the men who perpetrate domestic abuse will take a generation or more. Only once it can be said that women are treated equally in our society can we be confident that we are on our way to eradicating domestic abuse. Nevertheless, it is heartening to see the pace of change. The #MeToo movement, which emerged during the scrutiny of the bill, is an example of what we all hope are seismic shifts in society’s views on how women are treated.

I am proud to have led the bill through Parliament. This is a momentous day, as our laws will be changed in a way that reflects the experience of domestic abuse that all too many women have suffered. Although I am under no illusion that laws alone can address domestic abuse, they have a key role to play. Once implemented, the bill will allow our justice system to deal more appropriately with domestic abuse.

I move,

That the Parliament agrees that the Domestic Abuse (Scotland) Bill be passed.

The Deputy Presiding Officer

I appreciate that the bill is important—as all bills are—and I have been generous with the cabinet secretary, so I will be generous with the other front-bench speakers. I will give Liam Kerr seven minutes and Rhoda Grant six minutes. They will get extra time.

Liam Kerr (North East Scotland) (Con)

I speak in favour of passing the Domestic Abuse (Scotland) Bill.

The bill creates a specific statutory offence of domestic abuse. Currently, the criminal law focuses on discrete incidents of physical violence or threatening behaviour that causes fear or alarm, and it can fail to recognise the lived experience of domestic abuse as a course of conduct over a period of time.

The new offence, which we welcome, seeks to protect victims who have experienced coercive or controlling psychological or emotional behaviour by creating a new offence of having engaged in a course of abusive conduct even if it was entirely psychological and even if the victim did not, on the face of it, suffer harm as a result of the conduct. Furthermore, as a result of stage 2 amendments that the Government lodged, when the perpetrator, in committing the offence, involves or affects a child or a child sees, hears or is present during an incident that forms part of the course of behaviour amounting to the offence, the offence will be aggravated.

The bill also makes a number of attendant changes, which we welcome. Those include prohibiting the accused from conducting a precognition of the victim or complainer or from personally conducting a defence in court. Judges will be required, in their sentencing, to have regard to ensuring that the victim is not subject to further abuse, and it will be exceptional for bail to be granted when the accused has a previous conviction. Also, as the cabinet secretary mentioned, jurisdiction will be extended such that Scottish courts will be able to try someone for an offence of abusive behaviour that was committed wholly or partly outside the United Kingdom.

The Law Society concluded its very helpful briefing note with these words:

“we would stress that the law must be easily understood by all concerned. The public must be aware of the provisions of the Bill when it becomes legislation.”

That is a very important point.

Earlier this week, I met David McIntosh, the police area commander for Angus, to discuss various issues in the region. Coincidentally, he is also the chair of the Angus violence against women partnership, which sends an important message about how seriously the police take the issue. The discussion turned to today’s debate, and he reminded me that, on average, a woman suffers 22 incidents of domestic abuse before she feels able to report it. He suggested that one of the key benefits of having a bespoke act for domestic violence is that it sends a signal to victims of abuse that there is a specific piece of legislation that is designed precisely for their needs. Having such an act tells them, “You are the victim. You do not need to suffer this, because Parliament has legislated specifically for you. Come forward and the police will hear your voice sympathetically and appropriately, and they will ensure that all is done to protect you.”

The area commander reminded me that, in Angus and throughout Scotland, the number of recorded police reports of domestic abuse is rising, having gone from 36,000 incidents in 2000 to 58,810 in 2016-17. The explanation appears to be the increased reporting of a previously hidden crime.

In the financial memorandum, the Government estimates that creating the new offence will lead to an increase in the reporting of domestic abuse cases of between 2 and 10 per cent. That is good. However, if we take the median projected increase of 6 per cent, the Government’s best estimate is that the increase in costs for the Crown Office and Procurator Fiscal Service and the courts will be just over £2.5 million per annum. The best estimate for the increase in the cost to the police of dealing with the offence is around £720,000 per annum, while additional costs for the Scottish Prison Service are estimated at just under £1.1 million per annum. That is a considerable amount, which I urge the Scottish Government to consider very carefully when the bill is passed today, as I hope it will be.

I also draw the Government’s attention to the representations on funding that are on page 5 of the Scottish Women’s Aid submission, which are well made and worthy of consideration.

I tried to amend the bill at stage 2, because I was staggered to learn that experiencing domestic abuse is the third most common reason for a homeless application in Scotland and can result in women and children spending months in refuges and unsuitable temporary accommodation. I therefore wanted to amend the bill to require a review of emergency barring orders—orders that would immediately ban a perpetrator of domestic violence from the home of their victim for as long as was considered necessary to secure the victim’s safety. I withdrew my amendment because the cabinet secretary argued that it was unnecessary, as the Government had committed to conduct a consultation on the matter in early 2018. I look forward to that work commencing.

I also have not forgotten my stage 1 representations, in which I made it clear that courts can sometimes seem stacked against domestic abuse survivors, particularly when victims of domestic abuse have to recount their case to multiple sheriffs. Mr Matheson was right to refer to the effect of the court process.

Trials of a one-family, one-judge system to address the issue have been carried out in the United States, Australia and New Zealand. In England, there have been trials of an integrated domestic violence court in which one judge handles the criminal cases relating to domestic violence as well as all accompanying civil matters. A one-family, one-sheriff approach for domestic abuse victims in Scotland is surely worth exploring going forward. I wonder whether, in closing, the cabinet secretary or the minister might address whether such a trial would be possible.

Domestic abuse is monstrous and can cause immense and enduring trauma and harm. It has been sobering to hear and read the testimony of victims and the organisations that support them. They have highlighted the fact that there is behaviour that cannot currently be prosecuted because it does not meet the threshold of criminal conduct. More must be done to support the victims.

There is a gap in our law and the new offence is required. We agree that the Domestic Abuse (Scotland) Bill achieves what is required and we shall vote for it today.

Rhoda Grant (Highlands and Islands) (Lab)

People who are seeing the physical devastation of domestic abuse for the first time always ask, “Why on earth does the victim stay? Why did they not leave—and leave immediately? Why did they go back?” What the person does not see is the years of psychological abuse that the victim has faced before the physical abuse began. They do not see someone who is so undermined that they blame themselves. They do not see someone who has nowhere to run, because the abuser has alienated their friends and family.

The bill tries to deal with such psychological manipulation, which is often the precursor to physical abuse and is just as devastating. The behaviour is often so subtle, initially, that the victim is unaware of what is happening to them, so it is for friends and family to spot it.

Concern was expressed that the threshold for criminality might be too low, but given the underhand nature of the crime, which is often hidden, harmful behaviour would not be captured and victims would not be protected if the threshold were higher.

For the offence to lead to a conviction, conditions will need to be met to ensure that a falling out or disagreement will not be captured. The conditions are as follows: the accused’s course of behaviour was abusive of their partner or ex-partner; a reasonable person would deem that such behaviour was likely to cause physical or psychological harm; and the accused intended to cause harm or was reckless about whether their behaviour would do so.

The bill will offer further protection, but there remain areas that need to be tackled. The bill considers the impact of domestic abuse on children, but it does not go far enough, although it was strengthened today by amendments in the name of my colleague Claire Baker.

Far too often in my casework, I see cases in which custody and access to children are used to continue to perpetrate abuse. Abusers use contact to trace the family and find out where they are living, so that they can continue the abuse. They use contact to monitor where a victim is, and they control their victim’s behaviour by changing pick-up and return times. The abuse continues and, worse, the child is used as a weapon.

The courts have forced mothers to hand over their children to an abusive ex-partner whom they know will harm the children—and if the mother does not hand over the children, she faces arrest. That is a horrendous and unacceptable situation to put someone in, and all too often we read that it has tragic consequences.

Although the bill now recognises the damage that is done to children by domestic abuse, we need to go much further to protect children. An abusive parent or step-parent should not have access to a child, under any circumstances. Unless they have been able to prove in a court of law that they have addressed their behaviour, their child must be protected from them. We need mechanisms to put such an approach into operation, but the rule of thumb must be that there is no contact, because of the damage that it causes to the child.

In a meeting with Mary Fee, the minister suggested that the Government will look at the issue as part of the reform of family law. However, the matter needs to be addressed urgently, because lives are being damaged and lost while the current situation continues.

The bill does nothing to ensure that all victims have access to a domestic abuse court. Given the concern that has been expressed about prosecution under the bill, such access is essential. If specialists do not preside over the legislation, we will have a two-tier system in which victims who have access to a specialist domestic abuse court get protection while those who do not have access do not get protection.

Domestic abuse courts are used to implementing special measures in court, when victims ask for things to be put in place to make giving evidence easier and less traumatic for them. A victim can ask for special measures in any court, but it is commonplace for victims to turn up at an ordinary court and discover that the measures have not been put in place. If all victims had access to specialist domestic abuse courts, there would be standard provision, rather than a postcode lottery.

We need specially trained professionals to deal with the legislation. The police need to be trained to investigate and recognise the offence, and throughout the whole prosecution system we need people who are appropriately trained. If people are not trained, the bill will not offer the protection that it should offer. That is why specialist domestic abuse courts are so important: they cater for the needs of victims, and the professionals have a deep understanding of the offence of domestic abuse.

Emergency barring orders were dropped from the bill because the Scottish Government said that it was going to consult on them as part of the review of the Children (Scotland) Act 1995. However, EBOs would be required even if there were no children in the home. A victim should never have to leave their home, especially not in haste and in fear of their safety. The trauma that that causes is unacceptable. Measures need to be in place that immediately remove the perpetrator and make the house safe for the victim and their family to remain. An abuser is not law abiding, so simply being told to leave is unlikely to address their behaviour.

We also need to ensure that where exclusion orders of any kind come to an end, the victim is informed in enough time for them to take action to protect themselves. Too often, we hear of abusers being given non-custodial sentences with no restrictions, which means that restrictions put in place while on bail fall immediately, leaving the victim unprotected.

We in the Scottish Labour Party support the bill. Anything that provides better protection against domestic abuse is to be welcomed.

The Deputy Presiding Officer

My generosity extends to the open speeches. You all have five minutes for your speeches. I know that you will have no trouble filling an extra minute.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I am very happy and proud to speak in the stage 3 debate on the Domestic Abuse (Scotland) Bill. As deputy convener of the Justice Committee, I thank the clerks for all their hard work and, of course, the many witnesses who bravely came forward to give evidence and who made it possible to frame such an all-encompassing piece of legislation. I am particularly proud because the bill is a good bill that will give greater security to the thousands of women in Scotland who suffer mental or physical trauma at the hands of cowardly abusers. The bill is, quite simply, groundbreaking.

I am happy, too, that the bill is consensual and that Parliament is united in condemning violence against women and children. As has been said, the bill is historic: for the first time, psychological abuse and coercive behaviour are being included in the vile crime of domestic abuse. The bill creates a new offence of engaging in a course of abusive conduct against a partner or ex-partner, and it amends other procedural or evidential aspects of criminal law in relation to domestic abuse, addressing an important gap in the law. Crucially, the bill acknowledges the horrendous, everlasting damage that psychological abuse and coercive controlling can do. It allows for convictions for domestic abuse based on a course of conduct rather than individual incidents.

The amendments to the bill have strengthened it and I was happy to support them all. I am particularly pleased that the bill includes an aggravation that acknowledges the damage done to children caught up in these situations and ensures that that is taken into account during sentencing. In this, the year of young people, that is a powerful way to demonstrate to young people how important they are and that society is taking steps to acknowledge the trauma that they suffer in situations of domestic abuse. That has not been given enough attention before.

Members will be aware of the revolutionary evidential research from the ACEs—adverse childhood experiences—study. Domestic abuse scores highly in the ACEs trauma index. I hope that the fact that the bill acknowledges ACEs is another step along the way to society changing the way in which it deals with traumatised children and helps them to heal. I echo Children 1st’s call for investment in trauma-informed support across Scotland to help children and families to rebuild their lives.

The inclusion in the bill of the presumption in favour of non-harassment orders is also welcome and will give comfort to victims who feel extremely vulnerable after a court decision. The benefit of the amendments at stage 2 in the name of my colleague Mairi Gougeon will be that children who reside with the perpetrator of the domestic abuse or with the partner or ex-partner who has been abused will also be able to receive the protection of a non-harassment order.

Those measures protect children in a way that has not been possible until the introduction of the bill. I am absolutely delighted that the Scottish Government has listened to the Law Society of Scotland and Scottish Women’s Aid, and to children’s organisations such as Children 1st and the National Society for the Prevention of Cruelty to Children, to name but a few organisations that protect our children every day. The introduction of a formal reporting process on the operation of the offence, the extension of the extraterritorial reach of the offence and Claire Baker’s amendments in relation to data collection to monitor the implementation of the bill are all very welcome, too.

Domestic violence—physical and psychological—exists in all sections of our communities, across all levels of society. We may never rid our society of domestic violence completely, but this bill, which puts Scotland at the forefront of progressive legislation once again, should act as a warning that it will not be tolerated. For that reason, I am proud to recommend that the Domestic Abuse (Scotland) Bill be passed.

Michelle Ballantyne (South Scotland) (Con)

Several months ago, I stood in this chamber and spoke of my sense of sadness that this debate was ever necessary. I still feel that way today. Domestic abuse has no place in our society, but it is—regrettably—all too prevalent, and reports suggest that most cases still go unreported. Physical abuse is often easier to identify because it leaves visible evidence. Coercion and control, on the other hand, are pernicious; they eat away at an individual’s self-esteem, leaving them subservient to the perpetrator and often unwilling and unable to report the abuse. I accept the argument that abuse of that kind can be difficult to prove, but the bill makes it clear that it is a crime and one that we, as a society, will not tolerate.

By acknowledging that psychological violence is as harmful as its physical counterpart, by realising that it affects not just one partner but the whole family and by recognising that the court system is simply not fit for purpose to deal with it, we are taking meaningful, necessary steps towards a society that is free from abusive behaviour. In that vein, I feel that Mairi Gougeon’s amendment, expanding the scope of non-harassment orders to cover children, bolsters the legislation. If a child resides with an adult who has been abused by their partner or ex-partner, the protection that a non-harassment order affords the adult should be expanded to cover the child as well. Anything else would be an abrogation of the state’s duty to protect children from harm.

When the Scottish Government consults on the issue later this year, I urge the cabinet secretary to consider Liam Kerr’s proposal to introduce emergency barring orders in Scotland. The orders would provide a reprieve for those who are being abused, offering a short-term solution before a non-harassment order can be put in place. Without emergency barring orders, those who have been brave enough to speak up against abuse are still at risk in the short term, when they are at their most vulnerable and require the most support. For any children involved, the prospect of having to flee their home, on top of the stress of having their family life disrupted, would surely have an adverse effect on their mental health. Introducing emergency barring orders would protect those children, helping to keep them in a safe and familiar setting without risk of displacement. That protection is already available in England and Wales, and I see no reason why it should not be introduced in Scotland as well.

In the previous debate on the legislation, my colleague Maurice Corry highlighted the need for a widespread publicity campaign around the new offence. Although his proposed amendment fell, I was heartened by the cabinet secretary’s reassurance that the legislation will be effectively publicised. It is clear that if the legislation is to deliver the result that we want, awareness is key. That is why I would like to see the publicity aspect of the legislation expanded into personal and social education classrooms. In this era of gaslighting and revenge porn, it is necessary to ensure that our young people have the tools required to deal with such issues and know when an offence has been committed. Further, by reinforcing at a young age the idea that domestic abuse can happen to men, not just women, and in same-sex relationships, we can change the culture around the issue within a generation.

There is a good deal to welcome in this new bill. That said, it is not perfect. I still believe that my colleague Liam Kerr was right to call for a one family, one judge system and, as I mentioned previously, I look forward to seeing the results of the Government’s consultation on emergency barring orders. However, the Scottish Conservatives absolutely support the principles of the bill. I hope that the passing of the bill will be a watershed moment for all those who have suffered at the hands of abusers. The bill will benefit the people of Scotland and, for that reason, I will—with, I hope, the whole chamber—support it this evening at decision time.

Kezia Dugdale (Lothian) (Lab)

It is a great pleasure to take part in this debate. I start by putting on record my thanks to all the organisations that have provided us with briefings. My eyes are not that great, but I can see in the public gallery Dr Marsha Scott and Lily Greenan, both of whom have devoted much of their life’s work to getting to the point of the legislation that we have before us today. They should be incredibly proud of their achievements. In all my dealings with them, I have been struck by their passion for the fundamental principle of addressing domestic abuse and violence and their grasp of the detail. We see both the passion for the principle and the masterful grasp of the detail in the bill that we are considering this afternoon.

Too often, women’s organisations still have to justify their existence. Every time that there is a funding round, they must talk about the good work that they do. However, before us today is a bill that is the living, breathing reality of why their work matters, why we still need it and the difference that it can make. It is a good week for them and it is a good week for women, with this bill following on from the Gender Representation on Public Boards (Scotland) Bill, which we considered on Tuesday.

I agree with Rona Mackay that this is a very good bill. It is ambitious; it is ground breaking, and it does many things of note. I will quickly address its four key aspects. First of all, it removes the ability of a perpetrator of domestic abuse to conduct his own defence. Let us stop and think about what that means for the victim of domestic abuse who is considering whether to come forward and report what they have experienced. The idea that they might have to face a cross-examination by the very person who perpetrated the abuse does not bear thinking about, and this bill ensures that that will no longer happen.

Secondly, as has been discussed, the bill makes coercion a crime. I was particularly struck when the cabinet secretary first talked about the issue in the media, because he immediately understood that the training of police officers and all those on the front line is absolutely critical if the bill is to have any impact in that area. He said at the time—I am sure that everyone in the chamber will hold him to account for it—that he would provide the necessary resources to ensure that police officers and all front-line workers are fully briefed on the new offence and how best to deal with it.

Thirdly, we have had a little bit of a discussion about the importance of non-harassment orders. There is no doubt that Justice Committee members made a huge amount of progress in that area at stage 2, and I commend them for that.

It was not until today that I became aware of the fourth bit of this bill, which I am particularly fond of: the measures on bail restrictions. I am grateful to the Law Society of Scotland for its briefing on the matter. There is usually a presumption in favour of bail in criminal proceedings, with the exception of those involving drugs offences, violent offences or sexual offences, where the presumption is against bail. One thing that the bill does that we have perhaps not talked about enough is to add domestic abuse to the list of presumptions against bail. That is a very important development, not least given the case of a particular constituent of mine, whom I have talked about in the chamber before. I do not have time to repeat her entire history but, on 1 December 2016, I talked at great length about her experience of reporting domestic abuse. The perpetrator was facing many charges in court but those were whittled down, and the perpetrator absconded not once but twice while on bail. The difference that this measure could make to individuals who have experienced what my constituent experienced is profound.

I have said a lot of positive things about this bill. I am immensely proud of it and, given that it is a gender take on violence itself—and the roots are there from the equally safe strategy—we should be immensely proud of it. However, a by-product is the unfinished business of how we deal with children who are the victims of domestic abuse. Rhoda Grant covered much of that ground. I would be very grateful to the cabinet secretary if, in his closing remarks, he would comment on the other legislative opportunities that there might be to find symmetry between the civil and criminal legal systems and to consider their relationship with the child protection system in general. As I say, there is unfinished business there, but in no way does that take away from the success of all the parties involved in getting us to where we are today.

Earlier today, Liam Kerr mentioned the importance of housing and the position that many women find themselves in when it comes to refuges. When I visited Edinburgh Women’s Aid, I met one woman who was stuck in the refuge because of the lack of affordable housing to enable her to get out of that situation. That shows us just how important resources are not only for quality social housing, but for funding domestic abuse and violence against women services.

Can we please—once and for all—recognise that to do their job, organisations that deal with women who are affected by violence need long-term, sustainable funding? If this bill means anything—if the work of the people in the gallery means anything—we must give them the definitive commitment that that money will always be there.

John Finnie (Highlands and Islands) (Green)

I, too, thank the Government for introducing this legislation, everyone who has participated in the discussions, colleagues on the Justice Committee for the work that they have done and the staff and various other people for their briefings. Most of all, I thank the people who gave us private testimony. The cabinet secretary used the word “harrowing”. That testimony certainly was harrowing, but it was compelling, and it gave us an insight into areas that many of us are, fortunately, unfamiliar with.

There is a gentleman on Twitter who takes great exception to a phrase that I use. I will upset him again in mentioning the role of inequality and gender-based violence, which underpins the whole pernicious issue of domestic violence.

The Scottish Women’s Aid briefing talks about the organisation’s gratitude for the cross-party support that there has been. That has been the basis for progress. There has been progress over the years, and no role for party politics. For those who may have heard some differences earlier and who are unfamiliar with our procedures, that debate was in our mutual quest to try to make things as good as possible, certainly in relation to domestic abuse courts.

Kezia Dugdale talked about the relationship between civil and criminal proceedings and the conflict that there can be there. Other members have talked about issues relating to contact and the distress that it causes—and not only to the individual involved; on previous occasions, I have talked about grandparents becoming involved and the abuse that continues in that way.

The committee’s stage 1 report used the phrase “compelling and persuasive evidence”. The evidence certainly was that, for which credit goes to the people who came forward.

Over the past week, although not for the first time, we have spoken in the chamber about filling a gap in the law. A gap in the law required to be filled. People readily understand the physical evidence. Years of psychological abuse can take a real toll, and that toll is visited on children as well.

I understand that people have reservations about the bill. People have said that it is not easy to legislate in the field of human relationships. Things are difficult to prove. However, there is ample evidence from Police Scotland and the Crown Office and Procurator Fiscal Service and in the excellent work that has been done on serial perpetrators and historic abuse that there can be such legislation if we have the will and the resources. After all that we have heard, we would be failing if we did not legislate.

The stage 1 report said:

“the new offence may give rise to questions in relation to interpretation and enforcement”.

That is the law. Whoever gets the first bit of information—whether they are a police officer, a social worker or someone from the third sector—they will make judgments on it. The police officers who investigate make judgments, the Crown Office and Procurator Fiscal Service makes judgments on whether something is in the complainer’s interest or in the public interest and whether there is sufficiency of evidence, and the judge ultimately makes a judgment. Therefore, there is nothing new in the approach. We are adding something else into the equation, and it is worth while doing so.

I mention in particular Linda Fabiani’s amendments and her work. Her commitment to that work has been evidenced over the years, and a presumption in relation to non-harassment orders is a real boost to the bill.

Michelle Ballantyne and others have talked about education, awareness and proper resources. We need increases in refuge provision; increases in visiting support for women, children and young people living in the community; an increase in contact time for individual women and children; a decrease in waiting lists for refuges; an increase in counselling services; an increase in therapeutic activities and support for children; more on-call hours and drop-in support; and an increase in the provision of training for other agencies. Scottish Women’s Aid told us about all those things in its briefing, which says that

“The Elephant in the Room”

is

“Funding for Local Services”.

Those services are at risk.

It would be wrong to get embroiled in funding issues on a day on which an important bill is being passed. However, if there is genuinely a commitment across the public sector to address the matter, funding should not be an issue.

Finally, I want to talk about children and the addition of the aggravator. Although that addition is extremely welcome, Children 1st retains a concern. It has said that

“there is a need to ensure Scots Law recognises a child as a victim of domestic abuse in their own right”.

That is important. Again, the issue of contact comes in.

Children 1st has also talked about the

“need to consider ways to ensure the rights of children who give evidence are protected, including by the development of a Scottish model of the Children’s House (‘Barnahus’).”

I know that the cabinet secretary is looking at ways of doing that.

The Scottish Green Party will support the bill, which we warmly welcome.

Liam McArthur (Orkney Islands) (LD)

I start, like others, by thanking all those who have helped us to get to this stage, including those who provided invaluable evidence, particularly the powerful and harrowing testimony that we heard from survivors. I also thank parliamentary staff, committee colleagues and indeed the cabinet secretary and his officials. John Finnie made a fair point about the cross-party collaboration that there has been on the issue over the years and in relation to the bill, as well as the constructive challenge that is necessary in the scrutiny of any legislation.

I confirm that the Scottish Liberal Democrats strongly support the efforts in the bill to tackle controlling and coercive domestic abuse and we look forward to voting in support of the bill very shortly, albeit recognising, as others have done, that more must be done to change both attitudes and behaviour more widely.

As we heard time and again during our scrutiny of the bill—most powerfully from survivors of domestic abuse themselves—psychological abuse can be every bit as damaging and every bit as traumatising as physical abuse, and potentially even more long lasting in its effects on the victim.

Currently, the law does not provide anything like the protection that is needed. As I said during the stage 1 debate, where psychological abuse is difficult to prosecute, that in turn makes it difficult to reinforce messages about how unacceptable such controlling and coercive behaviour is, and it then becomes difficult to persuade victims of the value of coming forward.

The bill, which I believe has been strengthened and improved through the scrutiny process, provides much needed added protection. It also offers more clarity and certainty for those who are affected—they are predominantly women—by such abuse that what they have suffered will be recognised and action will be taken against the perpetrators.

Of course, the impact that such abuse can have extends beyond the immediate victim. One of the areas where I think that the committee has worked most effectively with the Government in strengthening the bill relates to protections around children.

Although the bill originally established a specific aggravation where children are involved, I am pleased that the cabinet secretary accepted that that needed to apply beyond simply instances where a child sees, hears or is present in the house during a particular incident. A child’s experience is invariably interwoven with that of their abused parent, and the amendments made at stage 2 better reflect that fact.

The other area that we focused on, on which Mairi Gougeon and I lodged similar amendments, was that of non-harassment orders and how they would be applied, including the protection that they would afford to children. It is absolutely right that the bill requires courts to consider such orders in any domestic abuse case. Like John Finnie and others, I warmly welcome Linda Fabiani’s success earlier this afternoon in introducing a presumption in favour of those orders.

I am also pleased that at stage 2 the cabinet secretary responded positively to the proposals that I and Mairi Gougeon put forward so that, where the statutory aggravation is applied, the court should also be required to consider an order covering any children involved.

On the question of using emergency barring orders in more serious cases, the evidence that the committee took at stage 2 was helpful. I know that the Government continues to work with the third sector on proposals in that area and I look forward to seeing what emerges from that work in due course.

Perhaps the area where there continues to be a bit of an impasse is around the potential for more standalone domestic abuse courts. I entirely understand and recognise the rationale behind the calls for more such courts. Indeed, there is absolutely a need for specialist knowledge in taking forward domestic abuse cases, particularly when it comes to psychological abuse, which we are striking at through the bill.

There have already been steps in that direction within the Crown Office and Procurator Fiscal Service, and I, too, firmly believe that training in the area should be more of a requirement across the piece for fiscals, sheriffs and staff. However—I said this during stage 2—I have a concern about how such a specialist court system might operate in some parts of the country, including the one that I represent. Local access to justice is critically important as well, and I would have quite serious concerns if cases had to be heard some distance from where those involved live and work, for obvious reasons. Nevertheless, I accept that we will keep the issue under review. I think that the three-yearly reports will allow us to do that in a more informed fashion.

For now, I again thank all those who have helped us to get to this stage. As I have said before, the coercive and controlling behaviour that the bill strikes at can have a devastating impact on a victim, undermining their sense of self and hollowing them out slowly but surely over time. It has no place whatsoever in 21st century Scotland. Although the bill will not end domestic abuse, I am delighted that today we will close a gap in the criminal law in Scotland that will help to crack down on this abhorrent behaviour.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I have spoken in the chamber before on this issue and I am proud to be speaking about it again in the stage 3 debate. This bill is world leading and it will go some way towards addressing the true nature of domestic abuse, which, as others have said, is often a pervasive, controlling and demeaning behaviour over a long period of time that destroys the identity of the victim, who is usually—although not exclusively—a woman.

The bill sends out a strong message that we do not tolerate that behaviour. It demonstrates that the laws that we make in this chamber can send out such messages and be part of a strategy to effect change over the longer term. I am a member of the Justice Committee, and, like the other committee members who have spoken today, I thank those who provided evidence, particularly the victims of abuse, who provided the starkest evidence.

I declare an interest as a registered social worker with the Scottish Social Services Council. Domestic violence was one of the issues that I came across most frequently in both child protection and criminal justice roles, as I mentioned when speaking in Gail Ross’s members’ business debate on adverse childhood experiences last week.

There are currently gaps in criminal law that make it hard for prosecutors and agencies to tackle psychological abuse. With the bill in place, convictions will be sought for domestic abuse with the inclusion of psychological abuse. Current law focuses on incidents of physical violence or on threatening behaviour that causes fear or alarm, but, as we know and have heard, domestic abuse is not as simple as physical violence. Emotional abuse and controlling and coercive behaviour contribute to domestic abuse and can have a deeply damaging impact on families.

It is important that the bill takes into account the fact that third parties are often involved in cases and used as a means of control or abuse. Domestic abuse often takes place in family homes where children are present, which is why it is vital that the bill takes into account protection for children who are affected by domestic abuse. That is the area that has been discussed the most today. I welcomed the widening of the child aggravation provisions at stage 2 and I welcome the amendments lodged by Claire Baker that we passed today.

When domestic abuse takes place in a family home, children always experience something. That can range from having little access to support networks due to restrictions placed on a parent’s freedoms to witnessing the abuse taking place. If a child grows up in a home where coercive and controlling behaviour is commonplace, that can have a deeply damaging and lasting impact on that child’s attitudes towards what is acceptable behaviour.

I mentioned the recent debate on adverse childhood experiences, in which we heard how such experiences, which include witnessing domestic abuse in the home, can impact on individuals. Reducing the impact of ACEs is a very complex issue, but I believe that this bill will play a part in it.

I would like to talk about the non-harassment order, as others have done. I pay tribute to Mairi Gougeon’s stage 2 amendment and to Linda Fabiani’s amendment, which we passed today. The amendments make an important change that will help to protect victims and children. It should be the case that the court has to explain why an order will not be put in place, as opposed to the other way about.

Liam McArthur mentioned that the issue of specialist courts was raised at committee, and it was raised again during consideration of amendments today. Although I have sympathy with the view that has been expressed, I am of the belief that all courts should be specialist in domestic abuse. I said that at committee, because domestic abuse is a widespread issue. It does not take into account class, geography or anything like that, so all courts should be specialist in the area.

How will the bill work on the ground? What does it mean to ordinary people? Parliament can be very proud if we pass the bill tonight, because it will have a very positive effect. In recent times, my office has dealt with a complicated case of a young woman and her children. Obviously, I cannot go into the details, but we were able to put her in touch with the local women’s aid service, where she got help and refuge. This bill could help her.

What about implementation, which John Finnie mentioned? We must make sure that everyone plays their part to make it work. A couple of weeks ago I was at a meeting with other local politicians and Monklands Women’s Aid—the local service—and I was bitterly disappointed to hear that it is running into real funding difficulties with the local authority. Those funding difficulties are hampering its ability to provide even simple things for the women who need refuge, such as clean carpets and bedding—that sort of stuff. I am calling on all politicians in my local authority area—SNP, Labour and Tory politicians—to do the right thing and prioritise those services, and to help the bill to be implemented, because more and more referrals are likely to be made.

I am proud to vote for the bill today, and I commend the chamber to do likewise and make history.

Maurice Corry (West Scotland) (Con)

I welcome the opportunity to speak at the third stage of this most important bill. I express my gratitude and appreciation to the Justice Committee clerking team for all their hard work on the bill and to all those incredibly brave victims of this despicable issue who provided valuable information to the committee.

I am glad to be able to support the bill. As members have pointed out, domestic abuse is always a monstrous and evil act. It was clear from the evidence that the committee heard that a new criminal offence is required to help the police, the courts and the whole of society to crack down on domestic abuse effectively. I am glad that the Parliament will be able to offer that to them today. We have a bill that will work well and that will, I hope, help a lot of men and women who are suffering in abusive relationships.

The Government has listened to the legitimate concerns that were raised in the Justice Committee and has acted accordingly. Mairi Gougeon’s stage 2 amendment on non-harassment orders will allow the courts to impose an NHO that protects children as well as the victim, which is important. That is a great move—anything that we can do to protect children from harm must be applauded most vigorously.

On NHOs more widely, groups such as Scottish Women’s Aid raised concerns surrounding the effectiveness of NHOs due to the lack of an emergency barring order. I am not sure whether that will be an issue, but it is important that the Government monitors the situation and ensures that NHOs work as planned. If they are not working as intended, the Government must be willing to adapt them to ensure that they are fit for purpose.

At stage 2, I tried to amend the bill to require the Government to promote public awareness of the new offence. At the time, I said that it was necessary

“to ensure that we have maximum awareness, understanding and clarity about the operation of the act among the public and Police Scotland and its team”,

and I still believe that to be the case. The cabinet secretary argued that my amendment was unnecessary and said:

“It has always been our intention to raise public awareness prior to the implementation of the offence”.—[Official Report, Justice Committee, 12 December 2017; c 28-9.]

My amendment was therefore voted down, which of course I accepted. I strongly welcome and commend the commitment that the cabinet secretary made in his opening remarks to raise public awareness as a matter of importance.

It is important that we talk publicly, loudly and as often as possible about what is unacceptable. In my view, that does not just mean telling people about the legislative changes; it is about changing the whole culture surrounding domestic abuse and making it clear that physical and psychological abuse will never be tolerated in any part of our country. That is incredibly important.

I turn to another point that I would like ministers to address. Calum Steele of the Scottish Police Federation told the committee that there is a “fundamental difference” between arresting on the basis of physical evidence and interpreting whether there has been psychological abuse, and so the requirement that is be placed on police officers will change dramatically. I think that everybody would agree that, if the legislation is to be as effective as possible, it will have to be used correctly by the police. For that reason, front-line police officers will need as much support and training as possible in how to apply the law. I hope that a scheme for the roll-out of training is already in place and, if it is not, I hope that the Government will endeavour to have one in place as soon as possible. I again take note of what the cabinet secretary said in his opening statement, and I am pleased that things are going in the right direction.

I associate myself with my colleague Liam Kerr’s words on the benefits of moving towards a one family, one judge system as advocated by the Scottish Conservatives. I will not go into detail, because Mr Kerr has covered that, but I strongly believe in such a move, and we should at least investigate it.

I look forward to joining other members in voting for the bill, which I believe has the potential to do a tremendous amount for the victims of domestic abuse in Scotland.

Christina McKelvie (Hamilton, Larkhall and Stonehouse) (SNP)

Yesterday, I received a note from a friend who was one of the first prosecutors in the first domestic abuse court in Glasgow. She said:

“Good luck tomorrow, more legislation is seldom the answer, but this Bill has potential to effect meaningful change, even just in the conversation it has prompted. Mary Beard said you can’t fit women into a structure that’s coded as male, you have to change the structure and this legislation, on the foundation of Equally Safe, seems like a good attempt to do that.”

There have been 40 years of tireless work from the likes of Scottish Women’s Aid, the speaking out project, Rape Crisis Scotland, Engender, Zero Tolerance, White Ribbon Scotland, the STAMP—stamp out media patriarchy—project, the women’s centre in Hamilton, my colleagues on the cross-party group on men’s violence against women and children, which I co-chair with Claire Baker, and many more.

Today, we make history. On what I am sure is a landmark day for Parliament—one of the proudest days on which I have had the privilege to serve in the chamber—we can begin the process of healing scars that have existed for centuries.

I urge support not just from Parliament—we have that—for the voices of the women and men across Scotland who have, for far too long, been the victims of the abhorrent abuse that the bill seeks to rectify. The Domestic Abuse (Scotland) Bill will safeguard all victims and ensure their secured wellbeing as a matter of priority.

From a human rights perspective, stage 3 shows that the Scottish Parliament, as a guarantor of human rights, is committed to the more equitable wellbeing of all its citizens by protecting the most vulnerable people through the creation of newly identified criminal offences. The bill will close a gap in the law and enable the police and prosecutors to protect victims of domestic abuse better.

The new offence, under the bill’s strict new measures, will ensure convictions when there is a recognised pattern of behaviour during the course of abusive incidents. Psychological forms of abuse, such as coercive control, are not covered by existing legislation. The gap was identified, through consultation, as letting victims down. Let us not let them down today. The new measures will ensure that, when abuse against partners or ex-partners has been reported, all types of abuse are considered, in order to ensure that survivors have easy access to justice with dignity.

It is vital that improvements in domestic abuse legislation go on to recognise the ever-changing patterns of behaviour. Professionals, working with victims and their families, must be able to count the number of incremental changes as an ordered number of incidents over time. Patterns may vary a little between perpetrators, but the incidents all share controlling, coercive, threatening, degrading and even violent characteristics.

Domestic abuse is perpetrated on victims of all identities, but it is driven by other community pressures and discrimination in society more widely, including sexism, racism and class divide. It is a gendered issue. That is why, as a gendered crime, domestic abuse is overwhelmingly experienced by women—but not exclusively so, as we know. The new legislation will help us to detail characteristics more effectively because they apply to people who are already marginalised and are subjected to the isolation, denigration and derision that are imposed by social contexts. Domestic abuse needs to be viewed as more than violence—especially for partners who are more likely to become victims of hate crime by virtue of their identity and who are at risk because of their gender.

Emotional wellbeing, physical health, financial security and self-esteem are inextricably linked to inequalities of power. Methods of control are insidious: behaviour might be subtle, but equally harmful. The bill will ensure that victims have a voice and are treated with the gravity and seriousness that they deserve—for example, when social media are used to spread images to shame and intimidate. I brought the issue of revenge porn, on which we now have legislation, to the chamber in September 2013. The changes will cover such behaviour more robustly.

The Scottish Parliament stands alongside those who, for far too long, have thought that their voices would be silenced by their abusers, and those whose ambitions and dreams have been limited by the pounding of fists or the power of controlling words. Finally, we can ensure that victims of domestic abuse will have their voice, our support and their justice.

James Dornan (Glasgow Cathcart) (SNP)

It is a great privilege to be able to speak in support of the bill. As politicians, we all have different areas of Scottish life that particularly affect us and impact on how we think forever after, having heard real-life stories. I will talk about the impact that some of those stories have had on me, and how the bill is an incredibly important piece of legislation for Parliament to pass today.

I have had meetings with groups including Rape Crisis Scotland and Scottish Women’s Aid. I work closely with groups in my constituency—for example, Waves (Women Against Violent Environments), and the domestic abuse integrated support—or DAISY—project in Castlemilk, that support victims of domestic abuse. I have heard their numerous stories and got to know the women and their children personally, which has highlighted to me the importance of the bill more than any briefing could possibly do.

Why is the bill important? It is hard for me to imagine, but having merely listened to those women, I can think about what it means to be abused by a partner. Now is the right time to show how some people’s lives could be changed for the better—as we hope they will, if the bill is passed—by telling the stories of some of the many women who have been brave enough to share what has happened to them.

I now know well a woman who moved to Ireland when she met the love of her life. She had a family and did everything that she could to make a life across the sea. Sadly, she was beaten and emotionally abused so badly that she had to flee her home and her life there, and try to survive while rebuilding a life back here in Scotland. That marvellous woman is now in her 70s and chairs a charity that she helped to form that supports women who are fleeing abuse. Through her work and care for others, she has been able to move on with her life.

I have heard from women stories of their having to flee in the night and of their not even being able to seek shelter with family because of stigma and blackmail, which are often tools that abusers cruelly use to control them. Language such as “No one will want you”, “I’ll find you” and “I’ll hurt the people who take you in” can have a devastating impact on women. Those are just some of the many phrases that are commonly used to prevent them from escaping the hell in which they exist.

Women are forced to flee into the unknown—to boarding houses and safe houses—often with small children and very little in the way of clothing. I cannot tell members how it breaks my heart to hear of women making their children sleep with their coats and shoes on in case the man of the house comes home and the abuse starts for no reason and without warning.

I have been delighted to hear the focus on psychological abuse in the debate. We all know that abuse is not just physical: it can be sexual, emotional and—almost always—psychological. Many women do not even realise that they are victims. That is why I am so pleased that recognition of psychological abuse is part of the Government’s proposal.

Controlling behaviour can often be hard to detect at first. Perpetrators may use psychological tactics to ensure that their partner feels as though she is not good enough and her self-esteem is so damaged that the relationship becomes like an emotional prison, with no escape. For me, the impact on children is one of the most damaging aspects and one of the reasons why I am delighted that the Government has said that it will look at the Children (Scotland) Act 1995, in relation to contact with children. I have spoken to kids who have been affected, and I have taken part in Christmas parties at which the only gifts that they have had are ones that my constituents gave me to pass on to them. I have seen the financial, psychological and physical implications for them.

I am very pleased to see this legislation that the Scottish Government is taking forward and which, clearly, the Scottish Parliament will support. That will be an historic moment for Scotland. The important thing about the bill is that the legacy of change may have come from Parliament, but it will belong to the many women who have been victims of abuse, those who have survived and those who have gone on to use their experiences to change the lives of others. My contribution and the result today are dedicated to each and every one of them.

Claire Baker (Mid Scotland and Fife) (Lab)

I recognise the work of the cabinet secretary, supported by his team, in introducing this important piece of legislation, as well as the work that has been done by members from across the chamber in supporting and strengthening the bill. I thank NSPCC for its support for my amendments this afternoon.

Domestic abuse is a stain on our society. In the main, it consists of men’s domination of women and children. It destroys lives and families, and our criminal justice system must be robust in dealing with its perpetrators. The bill is significant in creating a specific statutory offence of domestic abuse that includes coercive, controlling, psychological and emotional behaviour as well as physical assault. It makes changes to bail conditions and the use of non-harassment orders, and it recognises the impact of domestic abuse on children. It also re-emphasises the Parliament’s commitment to tackling domestic abuse and to not hiding from the problem but playing our part in bringing it into the light.

In 1999, when the Scottish Parliament was established, it was seen as a Parliament that was able to focus on issues of importance and that contained many more women politicians than we had seen before in our mainstream politics—a Parliament that was prepared to bring such issues to the forefront. This afternoon, we have heard thoughtful, challenging and impassioned speeches, which are the reason that this Parliament was created.

The bill is significant in showing an understanding of coercive control and emotional abuse and the impact that those behaviours have on women’s lives through the isolation and fear that come from living in such a situation. We must ensure that the law is effective and that victims have confidence in it. This afternoon, John Finnie described how that can be achieved through the work of the police and the Procurator Fiscal Service.

I recognise that funding has been announced for specialist training for the police and, this morning, for training by Scottish Women’s Aid. That is all welcome, but there will be challenges with the rolling out of the legislation, two of which I will highlight.

First, judicial training, which Liam McArthur touched on, remains an issue. Although there is training available, it is only voluntary. The measures that were outlined in a letter that the Justice Committee received from the Lord President are welcome, and I recognise his commitment in saying,

“I will continue to place a high priority on judicial education in this field.”

However, the current measures do not fully address the issue and I would like to see more progress on that.

Secondly, although the funding for training that has been announced is welcome, Scottish Women’s Aid, in its briefing, talked about the issues around funding as the “elephant in the room”. Some members have received a briefing from Perthshire Women’s Aid, which is in my region, that describes an experience of counselling services being heavily oversubscribed, children’s services being underresourced and all services running at capacity. We recognise the financial situation that many women’s support organisations around the country face and, although I know that the Government has a big commitment to that area, I call on the Government to do what it can to ensure that there is sufficient support. We also recognise that local authorities have borne the brunt of the cuts in recent years, but I ask all local authorities, even in such difficult times, to recognise the importance of those services and to prioritise them. John Finnie and Kezia Dugdale spoke about the need for funding for those organisations.

There are many issues that I want to raise, but we are short on time. Rhoda Grant made some important points on the contact system; perhaps the cabinet secretary will respond to those in his closing comments.

Scottish Women’s Aid has been tweeting artwork by children who are supported by the organisation, which brings home the impact of domestic abuse on children.

I want to mention the work that has been done by Zero Tolerance with Scottish Women’s Aid and the ASSIST—advice, support, safety and information services together—project in the publication of “What journalists need to know about the Domestic Abuse (Scotland) Bill”. That document goes beyond the bill and describes what responsible journalism means. It is about changing the narrative and increasing public awareness of what abuse is and what it looks like—how somebody’s sister, neighbour or daughter might be living—so that we can all challenge it and not accept it.

I hope that that is a positive ending, because we can be proud of the legislation that will be passed today. Our firm hope is that it will improve the lives of women and children around Scotland.

Margaret Mitchell (Central Scotland) (Con)

It is clear from members’ speeches that there is total consensus in the chamber and across all the parties in the Parliament for the introduction of legislation to create a new offence of engaging in an abusive course of conduct against a partner or ex-partner.

The current law focuses on individual incidents of physical violence or threatening behaviour that causes fear and alarm. However, the evidence from witnesses during the scrutiny of the bill established that there is a gap in the law in addressing abuse that is not restricted to physical abuse but that is controlling, coercive and psychological in nature. Put simply, there do not have to be black and blue bruises for an individual to have been the victim of domestic abuse.

As John Finnie and Liam McArthur confirmed, that was vividly brought home to committee members when they heard the harrowing and compelling private testimony of survivors who had been the victims of such abusive behaviour, which can leave psychological scars that endure many years after physical scars have healed. It took immense courage for those survivors to talk about their experiences, and the committee owes them a huge debt of gratitude.

Stage 2 amendments included a welcome provision for a statutory aggravation to cover a situation in which a child sees, hears or is present during an incident of partner abuse. The committee recommends that the disconnect between criminal and civil courts when deciding whether to grant child contact orders should be considered in the review of the law relating to children and key adults in their lives. I hope that Liam Kerr’s suggestion of one-family, one-sheriff domestic abuse hearings will also be considered.

Further evidence was taken at stage 2 on emergency barring orders, which would exclude an abuser from a victim’s home immediately. As the cabinet secretary stated, there are complexities here, and I therefore welcome his commitment to formally consult on the introduction of new powers in this area.

A minority of witnesses—including legal experts and Calum Steele from the Scottish Police Federation—expressed a concern that the new offence could inadvertently criminalise behaviour that, rather than being abusive, is nothing more than a normal heated exchange or disagreement. However, on balance, the committee was persuaded that, with the reasonableness test, and if the context and course of behaviour are taken into account, the threshold for criminalisation will not be too low.

Context is crucial, which is why I lodged a stage 2 amendment to include the idea of context in the bill. However, I did not press that amendment, because the cabinet secretary and, after reflecting on the point, Scottish Women’s Aid, considered it unnecessary and believed that the offence as drafted is the best form of words to achieve the purpose of the bill. I sincerely hope that they are both proved to be correct.

Linda Fabiani’s stage 3 amendment, which was agreed to today, introduces an assumption that a non-harassment order will be granted, and I commend her for her commitment to the issue.

The bill’s schedule makes welcome and long-overdue criminal law procedural reforms in an effort to ensure that the victim is not re-victimised by the criminal justice process. The reforms therefore prohibit the accused in domestic abuse cases from conducting their own defence or directly precognoscing the victim.

If the bill is to give the victims of psychological abuse the justice that they desperately seek, it is essential that sufficient resources are made available to adequately support victims and witnesses and that the new offence is the subject of a publicity campaign to encourage victims to come forward. I ask the cabinet secretary again to confirm that that will be the case, so that the bill will be legislation that the Parliament can be proud to have passed.

Michael Matheson

I thank all members for their positive contributions in the course of this stage 3 debate and during the passage of the bill.

The Scottish Parliament is not short of disagreements—that is the nature of debate—but I think that it is right to pause and highlight the fact that this place is often at its best when we can come together and try to tackle some of the most significant problems that we face as a society.

We cannot afford to underestimate the nature and the extent of the problem that we face in relation to domestic abuse. I mentioned in my opening remarks that nearly 60,000 cases of domestic abuse were reported to Police Scotland in the space of one year, and that there is an unknown number of other incidents that are not reported.

I believe that it is incumbent on us all, as elected members of the national Parliament of Scotland, to address what is, in my view, one of the key gender-based challenges that we face as a society. Despite concerted efforts over many years, the scourge of domestic abuse is still a blight on the lives of too many people. As we seek to redouble our efforts in order to tackle this issue more effectively, the bill will help us in moving that agenda forward.

As I mentioned earlier, scrutiny of this bill is occurring at a time when I sincerely hope that fundamental changes are taking place in relation to how women are treated in our society. We recognise that there is much more to do, but we are moving in the right direction.

This bill is timely for many reasons, but perhaps first and foremost as an example of the steps that are needed if we are to have a shift in mindset to support the wider changes in our society that we all want to see. The bill makes it clear that domestic abuse is not simply physical abuse and that the pernicious and horrific coercive controlling behaviour that degrades and humiliates women in particular is now within our criminal law’s scope.

Members have raised specific points during their speeches. I recognise Kezia Dugdale’s point about raising awareness of the new provisions and I have taken specific action to make sure that those people who engage with the victims of domestic abuse will have a proper and detailed understanding of the new provisions if the bill is passed this afternoon. That will help to ensure that police officers and staff in Police Scotland understand the new provisions in the legislation. I have provided additional funding to allow 14,000 police officers and staff to be trained to understand the new bill. Maurice Corry also raised that issue. Alongside that, an extra £165,000 will be provided to Scottish Women’s Aid to support its training programme to help staff who work in its projects across Scotland. I have no doubt that it will help to support them to make sure that they create awareness of the bill’s provisions.

Liam McArthur

I welcome the funding that the cabinet secretary has identified. The issue that a number of colleagues referred to is not necessarily the quantum of funding but its predictability over a two, three or four-year period. Could the Scottish Government address that when it takes forward the proposals in the bill?

Michael Matheson

I assure Liam McArthur that we will continue to monitor and evaluate as we go forward. I am determined to make sure that those people who work directly with victims of domestic abuse are properly informed and have the right information on how the new legislation will be implemented and its provisions. That is why I have targeted support specifically to the police and their staff and also to Scottish Women’s Aid staff.

I turn to the public information campaign. I have given a commitment to take that forward before the provisions of the legislation come into force, and that is what we will do. I will set out how we will roll out the campaign in the coming months.

Kezia Dugdale

I am conscious that the cabinet secretary does not have much time left to speak. Will he comment specifically on the issues that were raised about unfinished business with regard to children’s protection?

Michael Matheson

I am coming to that very point, which includes the emergency barring orders that members have mentioned. We will have a consultation fairly soon on how we can roll out emergency barring orders in Scotland and how they will operate. It will look at whether the victim should apply for an order, or a third party on their behalf, and the impact of the orders in other jurisdictions.

We have given a commitment through my education colleagues, who are about to undertake a consultation exercise, to look at modernising the existing child neglect offence that is contained in section 12 of the Children and Young Persons (Scotland) Act 1937, looking specifically at abuse aspects and how they impact on children. Annabelle Ewing, Minister for Community Safety and Legal Affairs, will consult on potential changes to the Children (Scotland) Act 1995 relating to contact, residency, parental responsibilities and rights. We hope to publish that consultation in spring to allow us to make further progress on the issue.

Today is a momentous day. It is a day that many campaigners who have dealt day in, day out with the corrosive effects of domestic abuse may have thought would never arrive. Our modern understanding of the nature of domestic abuse is being reflected in how our criminal law in Scotland now operates. I pay tribute to Marsha Scott and Louise Johnson at Scottish Women’s Aid for their assistance and expertise in developing this new offence. I pay tribute also to people like Mhairi McGowan, who has tirelessly led the ASSIST service for many years to provide advocacy for those who have been affected by domestic abuse. I pay tribute to Children 1st, Barnardo’s and other children’s organisations for emphasising the importance of acknowledging the risks and harms that are caused to children by domestic abuse.

I am particularly proud of this piece of legislation. I mentioned my visit to Scottish Women’s Aid. At the heart of the bill are the voices of the women who have experienced domestic abuse. I will draw the debate to a close by finishing with them. Nicola Borthwick said:

“Life as an abused woman was dangerous, terrifying and exhausting. I had no freedom, no escape and no voice. After fleeing I lived in hiding and forwent my right to vote to remain hidden. So, to have spoken and been heard at our nation’s parliament, giving personal evidence to support this Domestic Abuse Bill, is a precious memory that will stay with me for the rest of my life, long after the last of the old wounds have healed. It’s very difficult to experience a sense of justice. All of the past, good and bad, is real and affecting. However, to transform the legacy of those abusive deeds from merely damaging into something positive that contributes to establishing safety from domestic abuse for others, is incredibly rewarding and fulfilling.”

Dorothy Aidulis, another survivor of domestic abuse, said:

“For years I had to keep silent, watching my every word and facial expression, second-guessing everything I ever said or wrote, having my words twisted and used against me. It was exhausting and disorientating. I remember once while being shouted at, actually wanting him to hit me; so that I would be ‘allowed’ to leave. This is why we need this Bill. Speaking to the Justice Committee was scary, and brought a lot of memories back. But I was treated so kindly, and with such respect. And they listened. This may sound ordinary; but it wasn’t. As a survivor, this was official acknowledgement of the abuse I had suffered, and validation that I was right to speak up. Simply being believed was such a release and I felt a huge pressure being unwrapped like an invisible grip from around me. Being unexpectedly handed the opportunity to contribute to the making of this historic Bill will stay with me forever, and I cannot think of a more fitting outcome for some of the darkest days of my life. From myself, and from other survivors who cannot tell their story; thank you.”

Today, we as a Parliament stand with Dorothy, Nicola and the many others who have spoken up on domestic abuse. Without their courage and determination, we would not be here. [Applause.]

The Presiding Officer (Ken Macintosh)

I thank the cabinet secretary and members. That concludes our debate on the Domestic Abuse (Scotland) Bill at stage 3.

The Presiding Officer (Ken Macintosh)

The question is, that motion S5M-10208, in the name of Michael Matheson, on the Domestic Abuse (Scotland) Bill at stage 3, be agreed. As this is the final stage of the bill, we will move straight to a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harris, Alison (Central Scotland) (Con)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Mitchell, Margaret (Central Scotland) (Con)

The Presiding Officer

The result of the division is: For 118, Against 1, Abstentions 0.

The motion has been agreed to and the Domestic Abuse (Scotland) Bill has been passed. [Applause.]

Motion agreed to,

That the Parliament agrees that the Domestic Abuse (Scotland) Bill be passed.