Domestic Abuse (Scotland) Bill: Stage 3

– in the Scottish Parliament on 1st February 2018.

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Photo of Kenneth Macintosh Kenneth Macintosh Labour

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.

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.

Photo of Michael Matheson Michael Matheson Scottish National Party

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.

Photo of Liam McArthur Liam McArthur Liberal Democrat

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 at the outset 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.

Photo of Michael Matheson Michael Matheson Scottish National Party

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.

Photo of Claire Baker Claire Baker Labour

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.

Photo of Liam Kerr Liam Kerr Conservative

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.

Photo of John Finnie John Finnie 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.

Photo of Liam McArthur Liam McArthur Liberal Democrat

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.

Photo of Michael Matheson Michael Matheson Scottish National Party

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.

Photo of Rhoda Grant Rhoda Grant Labour

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.

Photo of Michael Matheson Michael Matheson Scottish National Party

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 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.

15:18 Meeting suspended.

15:23 On resuming—

We move to the division on amendment 10.

Division number 1

For: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Balfour, Jeremy, Ballantyne, Michelle, Beattie, Colin, Bowman, Bill, Briggs, Miles, Brown, Keith, Burnett, Alexander, Cameron, Donald, Campbell, Aileen, Carlaw, Jackson, Chapman, Peter, Coffey, Willie, Constance, Angela, Corry, Maurice, Crawford, Bruce, Cunningham, Roseanna, Davidson, Ruth, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, FitzPatrick, Joe, Forbes, Kate, Fraser, Murdo, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Grahame, Christine, Greene, Jamie, Hamilton, Rachael, Harper, Emma, Harris, Alison, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Kerr, Liam, Kidd, Bill, Lochhead, Richard, Lockhart, Dean, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, MacGregor, Fulton, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Martin, Gillian, Mason, John, Mason, Tom, Matheson, Michael, McAlpine, Joan, McArthur, Liam, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Neil, Alex, Paterson, Gil, Rennie, Willie, Robison, Shona, Ross, Gail, Rumbles, Mike, Russell, Michael, Scott, John, Scott, Tavish, Simpson, Graham, Smith, Liz, Somerville, Shirley-Anne, Stewart, Alexander, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Tomkins, Adam, Torrance, David, Watt, Maureen, Wells, Annie, Wheelhouse, Paul, White, Sandra, Whittle, Brian, Yousaf, Humza
Against: Baillie, Jackie, Baker, Claire, Beamish, Claudia, Bibby, Neil, Dugdale, Kezia, Fee, Mary, Findlay, Neil, Finnie, John, Grant, Rhoda, Gray, Iain, Greer, Ross, Griffin, Mark, Harvie, Patrick, Johnson, Daniel, Johnstone, Alison, Kelly, James, Lamont, Johann, Lennon, Monica, Leonard, Richard, Macdonald, Lewis, Marra, Jenny, McNeill, Pauline, Rowley, Alex, Ruskell, Mark, Sarwar, Anas, Smith, Elaine, Smyth, Colin, Stewart, David, Wightman, Andy

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 question is, that amendment 11 be agreed to. Are we agreed?

Members:

No.

Division number 2

For: Adam, George, Adamson, Clare, Allan, Alasdair, Arthur, Tom, Balfour, Jeremy, Ballantyne, Michelle, Beattie, Colin, Bowman, Bill, Briggs, Miles, Brown, Keith, Burnett, Alexander, Cameron, Donald, Campbell, Aileen, Carlaw, Jackson, Chapman, Peter, Coffey, Willie, Constance, Angela, Corry, Maurice, Crawford, Bruce, Cunningham, Roseanna, Davidson, Ruth, Denham, Ash, Dey, Graeme, Doris, Bob, Dornan, James, Ewing, Annabelle, Ewing, Fergus, Fabiani, Linda, FitzPatrick, Joe, Forbes, Kate, Fraser, Murdo, Freeman, Jeane, Gibson, Kenneth, Gilruth, Jenny, Grahame, Christine, Greene, Jamie, Hamilton, Rachael, Harper, Emma, Harris, Alison, Haughey, Clare, Hepburn, Jamie, Hyslop, Fiona, Kerr, Liam, Kidd, Bill, Lochhead, Richard, Lockhart, Dean, Lyle, Richard, MacDonald, Angus, MacDonald, Gordon, MacGregor, Fulton, Mackay, Rona, Macpherson, Ben, Maguire, Ruth, Martin, Gillian, Mason, John, Mason, Tom, McAlpine, Joan, McArthur, Liam, McKee, Ivan, McKelvie, Christina, McMillan, Stuart, Mitchell, Margaret, Mountain, Edward, Mundell, Oliver, Neil, Alex, Paterson, Gil, Rennie, Willie, Robison, Shona, Ross, Gail, Rumbles, Mike, Russell, Michael, Scott, John, Scott, Tavish, Simpson, Graham, Smith, Liz, Somerville, Shirley-Anne, Stewart, Alexander, Stewart, Kevin, Sturgeon, Nicola, Swinney, John, Todd, Maree, Tomkins, Adam, Torrance, David, Watt, Maureen, Wells, Annie, Wheelhouse, Paul, White, Sandra, Whittle, Brian, Yousaf, Humza
Against: Baillie, Jackie, Baker, Claire, Beamish, Claudia, Bibby, Neil, Dugdale, Kezia, Fee, Mary, Findlay, Neil, Finnie, John, Grant, Rhoda, Gray, Iain, Greer, Ross, Griffin, Mark, Harvie, Patrick, Johnson, Daniel, Johnstone, Alison, Kelly, James, Lamont, Johann, Lennon, Monica, Leonard, Richard, Macdonald, Lewis, Marra, Jenny, McNeill, Pauline, Rowley, Alex, Ruskell, Mark, Sarwar, Anas, Smith, Elaine, Smyth, Colin, Stewart, David, Wightman, Andy

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.

Group 2 is on non-harassment orders. Amendment 17, in the name of Linda Fabiani, is the only amendment in the group.

Photo of Linda Fabiani Linda Fabiani Scottish National Party

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.

Photo of Christine Grahame Christine Grahame Scottish National Party

I call Rhoda Grant. [

Interruption

.] There was a mispressed button. Margaret Mitchell’s name has just popped up.

Photo of Margaret Mitchell Margaret Mitchell Conservative

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.

Photo of Michael Matheson Michael Matheson Scottish National Party

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.

Photo of Linda Fabiani Linda Fabiani Scottish National Party

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.