Speeches in the Scottish Parliament

19 January 2011

Opening speech

It gives me great pleasure to speak to the motion that asks the Parliament to support the general principles of my bill, the Domestic Abuse (Scotland) Bill.

I am hugely grateful for the help that I have received in taking the bill this far. It has taken a long time to get here.

After the last election, I had lunch with Maureen Macmillan.

As we chatted about what she would do with her time, she said, "Rhoda, there is a little thing that you could do for me."

She went on to explain that, to her mind, there were some gaps in the Protection from Abuse (Scotland) Act 2001.

Although that act was introduced as a committee bill, Maureen had proposed it and was instrumental in steering it through the Parliament.

The next time that Maureen asks me to do a little thing for her, I will be a lot more wary.

That said, it did not take long for her to persuade me that something had to be done.

I embarked on the bill way back then.

I am grateful for the support of the Justice Committee and the Minister for Community Safety on sections 1 and 3 of the bill, the evidence in support of which was overwhelming.

Section 1 makes non-harassment orders, which provide robust protection for victims, much easier to obtain.

Current civil non-harassment orders are granted only when a course of conduct can be shown, which means two or more instances of abuse.

I am clear that one instance of abuse is one too many; protection should be available at that point.

Section 3 makes the interdicts that protect a victim of domestic abuse more robust with powers of arrest.

Currently, when those interdicts are breached, it is left to the victim to pursue the abuser through the courts for contempt of court.

That is not tenable, when the victim is afraid for their life.

Section 3 makes a breach of those interdicts a criminal offence, so any breach will be dealt with by the police and the criminal courts; the victim’s role will be that of a witness.

That removes the stress and onus from the victim and provides the police with the tools that they need to deal quickly and effectively with on-going abuse.

In 2009-10, 57 per cent of cases that the police recorded were repeat offences.

Stopping repeat offending will protect the victim and be of benefit to the police and, ultimately, the public purse.

Sections 2 and 4 are more controversial.

Section 2 provides legal aid without the need for contribution from victims who are seeking the protection of these orders and interdicts.

Section 4 defines domestic abuse.

Although the vast majority of victims qualify for legal aid, particularly following the increase in the income allowance, a small minority do not.

Some victims who flee abusive situations have no access to the documents that prove that they are eligible for legal aid.

In those cases, victims are often unable to take out orders for their own protection.

Also, those who do not qualify on financial grounds may not have access to their own money or property.

The very nature of domestic abuse is an abuse of power.

Normally, it starts with controlling behaviour that may not amount to physical abuse.

Alienating friends and family and removing financial independence and the freedom to interact with other people are all examples of such behaviour.

Those steps, along with undermining self-esteem and independence, prevent the victim from seeking help when the violence begins.

At the point of flight, very few victims have control over their finances.

Victims are also afraid to access bank accounts for fear that they may leave a trail that could lead the perpetrator to them.

Section 2 removes the barriers that people face in seeking and obtaining the protection that they need.

Neither the committee nor the minister are keen on the solution that I have proposed in the bill.

I am eager to hear alternative approaches that will provide the same protection in the situations that I have outlined.

Robert Brown (Glasgow) (LD): As the member rightly points out, this is a controversial area. Perhaps the way to tackle it would be to deal with the practical issues that relate to the Scottish Legal Aid Board. For example, there may be ways of tackling people’s inability to access their own resources. Indeed, that may already have been taken account of. Would that not be a more fruitful way of doing things than to unbalance the legal aid system?


Rhoda Grant: I do not believe that what I propose would unbalance the legal aid system.

However, I take on board the member’s comments.

I have been in talks with the minister on this point to try to find solutions on which the whole Parliament can agree and that will provide people with the protection that they seek while the needful provisions of the bill continue to progress through the Parliament.

Section 4 is probably the most controversial section of the bill for those who enthusiastically support the bill’s aims.

The definition of "domestic abuse" that is currently in the bill is wide, and most supporters are keen for it to be narrowed or removed. The only definition that can really be agreed to is the current definition in guidance, but it is almost impossible to draft that legally.

I therefore have two options: to remove the definition to allow the normal meaning of the term to be used, or to attempt to redraft the definition.
There are problems with both approaches.

Withdrawing the definition is workable but would leave the bill open to interpretation, which would mean that, ultimately, "domestic abuse" would be defined by case law.

However, providing a definition is also tricky.

Defining "abuse" is not really an issue, because it has already been defined in the Protection from Abuse (Scotland) Act 2001.

The problem comes when we try to define "domestic".

Many would argue that it covers only those who cohabit in some form, if it is used with its ordinary meaning.

However, we know that domestic abuse can occur in relationships that have not yet reached the stage of cohabitation and that it happens after relationships have ended.

At the moment, I think that we should remove the definition and include in the bill a name for interdicts relating to domestic abuse, which would make them quite different from other interdicts that may be sought.

I am interested in hearing members’ views on the most controversial elements of the bill—sections 2 and 4. I believe that the aims of those sections are just as important as those of the other sections in the bill, but I enter the debate with an open mind on how we can achieve them.

If the Justice Committee or the Parliament vote down section 2 at stage 2 or stage 3 without taking steps to find a solution to the problems that the section seeks to address, we will leave victims with no protection.

None of us would wish to find ourselves in that position.

I move,

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

Rhoda Grant: I thank everyone who has spoken in the debate.

It has been a constructive debate and I have found it to be very helpful.

Members, including Cathie Craigie, spoke about the impact that domestic abuse has had on our society.

Although the bill is a step in the right direction, it is widely recognised throughout the Parliament that we have to do an awful lot more to tackle domestic abuse.

Some members spoke about non-harassment orders.

I know that Robert Brown has concerns about harassment, and indeed about non-harassment orders.

He talked about repeat victimisation in the future, and that is part of what a non-harassment order is about—it is about stopping future victimisation.

Section 1 of the bill, on non-harassment orders, and section 3 will work closely together, in that they will give the victim and their legal representatives a choice of interdicts and orders.

They offer similar protection, but there will be a choice and it will be down to the victim and their legal advisers to decide how best to use it.
Others talked about the course of conduct requirement.

I agree that its removal will protect victims from constant abuse.

They will be able to seek a non-harassment order following the first incident of abuse, which will prevent people from being victimised repeatedly.

Section 2 is obviously the most controversial section of the bill.

I agree with Fergus Ewing that it is difficult to tie down the costs and figures.

We were working with figures that were given to us by SLAB, and it was difficult to extrapolate which cases actually dealt with domestic abuse.

Indeed, the figures that we provided to the committee included both defenders and victims because we were unable to pull the figures apart.

We believe that some of the figures that are being bandied about are unrealistic.

If they were realistic, there would be a huge unmet need, and that would be echoing around the chamber.

As I said, it is difficult to quantify incidents and it would be useful if the minister would consider how we can go about doing that.

Some of the blocks might occur when a victim goes to a solicitor for help.

The solicitor might deem that an application for legal aid might not be warranted and therefore put the person off. We need to find out where the blocks in the system are, and that is what section 2 seeks to do.

It would be helpful if those issues could be looked at.

Nigel Don mentioned equality of arms.

I agree that it should not be beyond the wit of man to sort this out.

I made available to the committee a lengthy document on the matter, and I am willing to make it available to any member who wishes to see it.

Having looked at the legislation, we truly believe that equality of arms is not an issue.

If members want to see the arguments in full, I am happy to provide them.

I have only six minutes to wind up the debate and it would probably take me twice that to go through them, so I will not do that now.

There is underreporting of incidents, so that would add to the costs, but this is more about how we deal with domestic abuse and the fear that prevents victims from coming forward than it is about access to finance, so it might not hide an untapped burden on the legal aid budget.

I suppose that what we have to consider is whether we really have to look at budgetary constraints when we are looking to protect people.

Many people have lost their lives due to domestic abuse, so we need to stop it.

Although we all recognise that budgets are tight, we need to ensure that we do that.

My preferred option is that domestic abuse is not tolerated in our society, that the police deal with it, and that no victim needs to use the legislation for their own protection because we, as a society, will protect them.

However, we are some way from that.

Members have supported section 3, but issues were raised about criminal evidence and criminal burdens of proof.

The breach of an order under section 3 will be a criminal act.

It will have to come under criminal evidence and it will have to have a criminal burden of proof, which is proof beyond reasonable doubt.

It is quite different from the civil burden of proof that will be used to take out the order in the first place. Breach of the order will be criminal.

I do not intend in any way to try to change Scots law on the back of a member’s bill.

That would be biting off a lot more than I could chew.

I turn to the definition of domestic abuse, because I am quickly running out of time.

I listened to what members said, and I think that there is a growing consensus about using the definition of "abuse" that is already in legislation and about allowing "domestic" to gain its broad dictionary definition.

The term is already used in legislation; the Family Law (Scotland) Act 2006 uses the term "domestic abuse" but does not seek to define it.

If I were to try to define it in this bill, that would impact on future legislation.

The Lord Advocate said in her letter:

"While the terms of the interdict will be a matter for the civil proceedings, to avoid any difficulties in the criminal context, the interdict will require to make it clear that the Sheriff has deemed the conduct referred to in the interdict to amount to domestic abuse."

We are pursuing options around naming the interdict so that it becomes clear to the sheriff dealing with the breach that it is indeed a breach of an interdict for domestic abuse and that, in that case, it is a criminal offence rather than a civil offence.

We will continue to pursue that with the minister.

I am very much aware that I am running out of time.

I thank everybody who took part in the debate. Some members spoke about the impact of domestic abuse; John Lamont mentioned the impact on children.

We need to tackle the issue; otherwise, future generations will have to live with it through their adulthood.

We need to make a change and supporting the bill at this stage would help us to take one small step in that direction.

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