Domestic Abuse (Protection) (Scotland) Bill: Stage 3

– in the Scottish Parliament on 17th March 2021.

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Photo of Kenneth Macintosh Kenneth Macintosh Labour

The next item of business is stage 3 proceedings on the Domestic Abuse (Protection) (Scotland) Bill. Members should have before them the bill as amended at stage 2, the marshalled list of amendments and the groupings of amendments. As usual, the division bell will sound and proceedings will be suspended for five minutes for the first vote of the afternoon. The period of voting for each division will be one minute. Any member who wishes to speak in a debate on any group should press their request-to-speak button as soon as I call that group.

Members should now refer to the marshalled list.

The Presiding Officer:

Group 1 is on domestic abuse protection orders and notices: places where person A and person B cohabit. Amendment 1, in the name of the cabinet secretary, is grouped with amendments 2 to 6.

Photo of Humza Yousaf Humza Yousaf Scottish National Party

At stage 2, amendments were made to the bill to introduce a requirement that, for the police to make a domestic abuse protection notice—DAPN—or the court to make a domestic abuse protection order—DAPO—person A and person B must live together some or all of the time. Amendments 1 to 6 address concerns that were raised by the police about the potential width of the power to make DAPNs and DAPOs by explicitly restricting the use of the power to cases in which a suspected perpetrator of domestic abuse and the person at risk of domestic abuse live together.

That approach was adopted because it is in such cases that a person at risk is most likely to benefit from the breathing space that a DAPN or a DAPO provides to take the longer-term steps that are necessary to address their safety and their housing situation without interference from an abusive partner or, indeed, an abusive ex-partner.

We consider that a possible unintended consequence of those amendments to section 1 is the risk that it could be read as requiring person A to live with person B in person B’s home. That is not our policy intent. Our policy intent is that it should be possible for a DAPN and a DAPO to be made regardless of where person A and person B live together. For example, if person B lives with person A in person A’s only home for three days a week and in their own home for the rest of the week, but person A has keys and regular access to person B’s home, it might be necessary to make a DAPN or a DAPO that requires person A, the suspected perpetrator, to surrender the keys to the home of person B, the person at risk, and prohibits them from entering or coming within a certain distance of that home. Amendment 1 makes it clear that a DAPN or a DAPO can be made if person A and person B live together in any place where either of them lives to any extent.

Amendments 2 to 6 are intended to ensure consistency in the drafting to avoid any possible confusion about which of the places where person B lives is the home of person B, when the focus should be on whether it is necessary to make provision in respect of any of the places where person B lives. I know that that is somewhat complicated, particularly if people have not been following the bill, but I hope that that clarifies the matter. The amendments make it clear that, in a case where person B—the person who is potentially at risk—lives in more than one place, the provisions in question can be made in respect of any or more than one of those places, provided that such provision is necessary.

I should make it clear that provisions can be made in a DAPN only if the senior constable who makes the notice considers it necessary for the purpose of protecting the person at risk from such abusive behaviour by the suspected perpetrator. As such, where the person at risk sometimes lives at their own home and sometimes at the home of their partner or ex-partner, I expect that it would not normally be necessary to use the power to prohibit their partner or ex-partner from entering both their own home and their partner or ex-partner’s home.

I move amendment 1.

Amendment 1 agreed to.

Section 5—Content and effect of notice:

Amendments 2 to 6 moved—[Humza Yousaf]—and agreed to.

The Presiding Officer:

Group 2 is entitled “domestic abuse protection orders: consent and matters to be taken into account by sheriff”. Amendment 9, in the name of the cabinet secretary, is grouped with amendments 10 to 19.

Photo of Humza Yousaf Humza Yousaf Scottish National Party

If you will forgive me, Presiding Officer, I will take a bit of time to explain how we have arrived at the position that we have. With your indulgence, given the nature of how we have arrived here, I will be happy to take interventions if members wish to intervene.

At stage 2, amendments were introduced that required the consent of a person at risk before a domestic abuse protection order could be made. As I said at stage 2, it was a finely balanced decision for the Scottish Government to lodge those amendments. After further reflection, I have lodged amendments 9 to 11 to remove the requirement for consent from the person at risk before a full DAPO can be imposed and replace it with a provision that requires the court to take into account any view of a person at risk as to whether they wish an order to be made when assessing whether to make a DAPO. However, making a DAPO will not—this is crucial—require consent.

Amendments 12 to 14 provide that, where person B does not wish an order to be made, the sheriff must take that into account and any of the reasons for that view of which the sheriff is aware. However, amendment 11 makes it clear that a lack of consent would not stop a DAPO from being imposed if the court is satisfied that that should happen, having applied the relevant tests in section 8.

Amendments 15 to 19 amend sections 12 to 14 to ensure that a consistent approach is taken where an application for variation, extension or discharge of a DAPO is made to a court. The overall effect of those amendments is that the court, in assessing an application for a DAPO, is required to take into account the views of person B, the person at risk, and the reasons for those views.

The need for consent is not a requirement, however. In other words, withholding consent is not effectively a veto on a DAPO being imposed. Those views could be provided to the court either directly or indirectly, for example through a support agency. In considering whether to make a DAPO in a case where person B does not support the making of the order, the sheriff could take account of the extent to which person B’s reasons for not supporting the making of the order are likely to be a consequence of the long-term effects of the abuse, especially the effects that coercive and controlling behaviour can have on the victim of domestic abuse.

I wish briefly to explain why I have adjusted my views on this very sensitive area of the bill. In many cases, it may be that the views offered by person B inform a decision that no DAPO is to be imposed, but I now consider that that must be for the court to determine on a case-by-case basis. Having reflected on the matter very carefully ahead of stage 3, I believe that ensuring discretion for the court is the only way in which the fundamental purpose of the scheme of DAPOs can be delivered in each and every relevant case, which will enable the state to meet its responsibility to protect people at risk.

The amendments that I lodged at stage 2 were informed by discussions with Scottish Women’s Aid, which reiterated its view—and it has reiterated them again in a briefing sent to MSPs—that it is important to ensure that the process for making a DAPO respects person B’s autonomy and their right to make their own decisions about their safety. Furthermore, the Scottish Government has had practical concerns, in that it is unclear how effective a DAPO could be if person B did not support it being made.

The question was and remains how far we want the bill to go in this area. As I said when I was speaking at stage 2, I have always considered the arguments for and against providing for an absolute requirement for consent to be very finely balanced. Although we remain of the view that one of the benefits of the system involving the DAPO is that it enables people who are experiencing domestic abuse to become more empowered, we have concluded that an absolute requirement for consent, leaving no discretion whatsoever to the court, would unduly curtail the ability and indeed the obligations of the state to fulfil its responsibility to protect those at risk of domestic abuse.

In reaching that view, I have considered the European convention on human rights, which, crucially, imposes a positive obligation on the state to protect individuals from each other. The state has a positive obligation to take appropriate steps to protect vulnerable people affected by domestic abuse—which includes women and children—from threats that pose a risk to their lives, to their right to be free from inhuman or degrading treatment or to their physical integrity. Significantly, for the purposes of the present issue, the European Court of Human Rights has specifically held that states need to put in place legal regimes that permit proceedings to be brought, even where allegations have been withdrawn.

It is important to remember that in order to make a DAPO, the sheriff will have to have been satisfied of the tests in the bill, which are that, first, person A, the suspected perpetrator, has engaged in behaviour that is abusive of person B, the person at risk; secondly, there is an immediate or imminent risk of person A engaging in further abusive behaviour towards person B; and, thirdly, it is therefore necessary to make the order for the purposes of protecting person B from the abusive behaviour of person A.

Photo of Liam Kerr Liam Kerr Conservative

I am grateful for the articulation of the point, which I am following with interest.

I am slightly struggling with one thing. The cabinet secretary amended in the requirement for consent at stage 2; he is now amending out that requirement. According to the letter of 15 March, that is as a result of legal advice saying that the provisions must comply with the ECHR. I get that, but what has changed between stage 2 and stage 3? Had that legal advice not been given at stage 2, or has the legal advice changed in some way?

Photo of Humza Yousaf Humza Yousaf Scottish National Party

As the member will be aware, I cannot directly reference legal advice, and I was careful in my letter to him and the committee around that. It was simply a matter of further reflection. We had a discussion with Scottish Women’s Aid at or before stage 2, and we were persuaded by its concerns around consent and empowerment, as the committee probably was, too.

However, on further reflection—as Liam Kerr knows, the bill has, through no fault of anyone in the chamber, been expedited to a truncated timetable—we felt that we had gone too far. I will give an important example. We could have a situation in which the sheriff believes that all the tests have been met and person B is at imminent risk of danger from a suspected perpetrator, and that it is therefore necessary to grant a DAPO. However, regardless of whether the sheriff is convinced that there is an immediate or imminent risk, they cannot impose a DAPO if consent is withheld. That is my concern. If a perpetrator of abuse knows that an effective veto on a full DAPO being applied could be exercised by the person who is at risk, they may, through coercive control, attempt to engineer such an outcome.

All that I can say to Liam Kerr is that, on further reflection, between stages 2 and 3, it became apparent to us that the obligation on the state to protect a person who is at risk could conflict with the requirement for the person’s consent, which meant we got the balance wrong at stage 2, and therefore had to rectify that at stage 3 through these amendments. We have considered not just the European convention on human rights, but the Istanbul convention, in particular article 52. We consider that the policy behind the amendments that I have lodged at stage 3 reflects the fundamental purpose of the DAPO scheme, which is based on the Istanbul convention. Article 52 contains no requirements in respect of consent, but focuses entirely on the state’s ability to protect those who are at risk.

I will conclude on this point—forgive me, Presiding Officer, for taking my time with this group, because it is important. The question is how the law should balance the autonomy of a person who is at risk of domestic abuse to make their own decisions with the need to provide protection for vulnerable people who are at risk of domestic abuse, especially in a case in which that very autonomy is compromised by coercive control and perhaps years of abuse. There is a fine balance to struck. I consider that my amendments in this group strike the appropriate balance and, importantly, take into account the state’s duties and obligations to protect people who are at risk of harm.

I move amendment 9.

Photo of John Finnie John Finnie Green

At the outset, I declare my membership of the cross-party group on men’s violence against women and children. That is relevant, because I feel a measure of discomfort with what I am about to say. It is the only time that I can recall that I will take a different point of view from that of Scottish Women’s Aid, for which I have the highest regard. I will try not to repeat the detailed points that the cabinet secretary made, but—with your indulgence, Presiding Officer—I will explain why that is the case. I most certainly want women to be in control. There has been an on-going debate about the issue of consent. Scottish Women’s Aid has said:

“The problem with issuing orders without the woman’s consent is that non-consensual intervention further disempowers”.

I accept that point—I absolutely get that.

Much of what I was going to say was detailed in the cabinet secretary’s letter of 15 March to the Justice Committee. It concerns the issues around the threshold—the cabinet secretary referred it to as a “test”—that would have to be overcome to secure the issuing of a DAPO. I will not repeat the details, but the sheriff would have to be satisfied that the threshold has been reached.

In recent years, the Parliament has led the world in legislating on coercive and controlling behaviour. It is an invidious way in which women are manipulated, and that is often at the back of my mind when we discuss these matters. There are women who are not quite at the point of reaching out for help, but who are trusting others, whoever they might be. In his letter to the committee, the cabinet secretary used the phrase “Our considered view”. I have reflected in the same way—I emphasise again that I note everything that Scottish Women’s Aid has said in its briefing to members, and that the empowerment of women is important. It is a fine principle, which ordinarily I would unquestioningly accept. Of course, the legislation is not exclusively about women, but the victims of domestic violence are, overwhelmingly, women.

If the sheriff was satisfied that the high threshold to grant a DAPO was reached, but the victim’s consent was not forthcoming because of coercive and controlling behaviour, which can sometimes take a number of years to emerge, and that victim was subsequently harmed, that would trouble me. If one person is harmed, it is one too many.

I continue to support the principle of empowerment, but I have changed my position in this context. The Scottish Government has set out its rationale; it is for the Government to explain the state’s obligations. My concern is that if one victim is created as a result of the existing arrangements, that will be one too many. I support the amendments in this group.

Photo of Rhoda Grant Rhoda Grant Labour

I will not repeat what others said. We need to note that the time of a relationship breakdown—and, in a way, domestic abuse protection orders and notices will bring forward the relationship breakdown by separating the couple— is the most dangerous time for a victim of domestic abuse. It is the time when most murders happen. We must take every step that we can to protect victims of domestic abuse. We must also remember that victims have had their agency taken away for many years and we should not double down on removing their agency.

That said, I think that there are safeguards in the bill to allow what is proposed without destroying the victim’s agency. I seek some reassurance from the cabinet secretary. Can he make it clear that sheriffs will receive training? Not all sheriffs understand domestic abuse well, and if they are to carry out the work they really need a deep understanding so that they can take the views of the victim without further undermining that person. Training needs to be in place to ensure that, when action is taken, the victim feels that they have been listened to and understood and can understand why the sheriff is taking action that is contrary to their view.

A victim is open to coercion at such a time—of course they are—and if the perpetrator of the abuse knows what is happening they might stop the domestic abuse protection order process, which could leave the victim in a more vulnerable position. However, we have to ensure that the victim’s agency is not destroyed. I seek reassurance in that regard from the cabinet secretary.

Photo of Humza Yousaf Humza Yousaf Scottish National Party

I thank John Finnie and Rhoda Grant for making exceptionally important points. I hope that I can provide the reassurance that they seek.

I associate myself entirely with John Finnie’s remarks. I genuinely feel uncomfortable about taking a different view from Scottish Women’s Aid on any issue and particularly on issues to do with domestic abuse. I spoke to Marsha Scott, the chief executive of Scottish Women’s Aid, this morning, and we agreed to disagree, to an extent. I think that her feeling—and she could put this much better than I can in paraphrasing what she said—is that she is not quite as convinced as we are about the obligations on the state and how we get the balance right in that regard. However, I think that she recognises that if that is the advice that we have been given, we have had no choice but to lodge the amendments in this group.

I should say to John Finnie that I, as a Government minister, must ensure that any bill that I introduce is compatible with the ECHR, hence my lodging the amendments. Indeed, the Parliament has a similar obligation.

Rhoda Grant made her points well. On her first point, I reassure her that the bill makes it very clear that sheriffs must take into account the views of the person who is at risk—I set that out in detail in my earlier remarks. She made a good point about judicial training. That is not within my gift; judicial training is a matter for the Lord President, who exercises that function independently. However, if the bill is passed at stage 3, as I hope that it will be, I will be happy to discuss the matter with the Lord President. We are going into the pre-election period, so I will ask my officials to do that, and I hope that, after the election, whoever is justice secretary, depending on the results, will follow the matter up with sheriffs.

John Finnie and Rhoda Grant made excellent points and I am pleased that, on balance, everybody understands why we have got to this position, which is the right position to get to so that the state can fulfil its obligation of protecting people who are at risk of harm.

Amendment 9 agreed to.

Amendments 10 to 14 moved—[Humza Yousaf]—and agreed to.

Section 12—Extension, variation or discharge of order:

Amendments 15 to 17 moved—[Humza Yousaf]—and agreed to.

Section 13—Extension, variation or discharge of order: further provision:

Amendment 18 moved—[Humza Yousaf]—and agreed to.

Section 14—Interim extension or variation of order:

Amendment 19 moved—[Humza Yousaf]—and agreed to.

The Presiding Officer:

Group 3 is on domestic abuse protection orders and the power to specify additional applicants. Amendment 20, in the name of Liam Kerr, is the only amendment in the group.

Photo of Liam Kerr Liam Kerr Conservative

My amendment 20 provides the Scottish ministers with a power to designate other bodies as being able to apply to a court for a domestic abuse protection order. That was something I initially sought to introduce at stage 2. Although support for the principle was indicated by both the cabinet secretary and Rhoda Grant, who was then justice spokesperson for Labour, I was persuaded by the cabinet secretary that such a regulation-making power should be future proofed.

It was also pointed out that, given the importance of the issues that have to be considered, it would be better for the procedure to be affirmative rather than negative, to give the Parliament a greater chance to scrutinise and be reassured that any bodies that were being added were fully ready to take that responsibility for training, resources and all the other matters that have been discussed. I found that argument persuasive and withdrew my amendments on that point to work with the cabinet secretary and his team to produce something better. We did so and I believe that that has been achieved, and I am grateful to the cabinet secretary and his team.

At present, the bill empowers the police but no other agency or organisation to apply for a DAPO. During the committee sessions, the idea of extending that power was raised, in particular by Scottish Women’s Aid and Police Scotland. The amendment specifically provides that local authorities, local authority landlords and registered social landlords could be empowered to apply for DAPOs. It was suggested at stage 1 that that would be appropriate.

Head (2)(d) of the amendment provides that the Scottish Ministers can use the power to provide

“any other person who the Scottish Ministers consider appropriate” with the power to apply to a court for a DAPO.

Head (3) of the amendment introduces a requirement to consult with those whom it is proposed be given the power to apply for DAPOs prior to making the regulations. That is intended to ensure that those organisations that it is proposed are given the power have an opportunity to provide views prior to the making of the regulations.

Head (5) of the amendment ensures that regulations made under that power will be subject to the affirmative procedure.

In short, that was what I sought to achieve at stage 2 and what I think can properly be achieved now. I therefore commend my amendment to the Parliament.

I move amendment 20.

Photo of Humza Yousaf Humza Yousaf Scottish National Party

I will be brief, Presiding Officer. I thank Liam Kerr for initially lodging the amendment at stage 2 and then agreeing to withdraw it and work with the Government ahead of stage 3. I absolutely support what he is trying to do and he has articulated it very well and gone into the detail of the amendment, so I will not rehearse that.

Amendment 20 appropriately future proofs the legislation to allow other persons to be added to the list of those who can apply for a DAPO where appropriate to do so. I am also pleased that the level of scrutiny has been strengthened, requiring the affirmative procedure. I may be the first Government minister in history to argue for more scrutiny of an order than the Opposition has asked for, but it is the right thing to do. That recognises the significance of the issues that have to considered in making use of such a power and will give the Parliament a much greater chance to scrutinise and be reassured that any person whom the Scottish ministers may seek to give the ability to apply for a DAPO on behalf of a person at risk are suitably equipped and trained for such an important responsibility. I thank Liam Kerr for the constructive manner in which he has engaged with the Government. We will support amendment 20.

The Presiding Officer:

Does Liam Kerr wish to add anything by way of winding up?

Photo of Liam Kerr Liam Kerr Conservative

I have nothing to add.

Amendment 20 agreed to.

The Presiding Officer:

Group 4 is on domestic abuse protection orders and notices and their relationship with orders regulating contact or residence. Amendment 21, in the name of Rhoda Grant, is the only amendment in the group.

Photo of Rhoda Grant Rhoda Grant Labour

Domestic abuse protection notices and orders are designed as emergency interventions to protect people from domestic abuse, and we must ensure that that purpose cannot be undermined.

A number of organisations expressed concerns that the intention that domestic abuse protection notices and orders should take precedence over all other orders was not expressed in the bill and felt that that should be the case. That is especially the case with notices that are not required to be heard by a court.

Although I believe that we should explicitly say in the bill that all orders tying person A to their home are superseded by a domestic abuse protection notice or order, the cabinet secretary did not believe that that was required. However, he conceded that orders regarding children should be included in the bill. Therefore, head (a) of the amendment provides that nothing in a court order regulating contact with, or the residence of, a child limits the prohibitions or requirements that can be made in a domestic abuse protection notice or order.

Head (b) of the amendment provides that it is not a defence for breaching the domestic abuse protection notice or order that person A was doing something that they were entitled to do under another court order.

It is clear that, in order to provide the protection that is required, domestic abuse protection orders and notices must take precedence over any other orders tying person A to the home.

I move amendment 21.

Photo of Humza Yousaf Humza Yousaf Scottish National Party

At stage 2, Rhoda Grant lodged an amendment intended to make clear the provisions of a DAPN and that they must be complied with irrespective of any pre-existing court order that might contain a contrary provision. I was happy in principle for the bill to ensure that those who have a DAPN served on them are in no doubt whatsoever that the existence of, for example, a pre-existing child contact order does not mean that the DAPN could not make provisions preventing contact with that child. However, as Rhoda Grant has suggested, I indicated that I had some technical concerns around that amendment. I am pleased to say that I consider that amendment 21 very much addresses those concerns and makes it clear that the existence of a court order regulating contact with, or the residence of, a child does not limit the requirements or prohibitions that can be included in a DAPN or a DAPO.

For example, if a person who is subject to a DAPN or DAPO that prohibits them from contacting a child contacts that child, it would not be a defence that they were acting in accordance with an entitlement in a child contact order. I thank Rhoda Grant for the constructive way in which she has worked with the Government on the matter and I will support amendment 21.

Amendment 21 agreed to.

The Presiding Officer:

Group 5 concerns reporting on the operation of part 1. Amendment 22, in the name of Liam Kerr, is the only amendment in the group.

Photo of Liam Kerr Liam Kerr Conservative

Amendment 22 is about reporting on the operation of part 1 and introduces a reporting requirement for the Scottish ministers to examine and monitor the number of domestic abuse protection notices and orders that are made, the number of offences for breaches that are reported, and the number of convictions obtained. Again, that was something that I brought forward at stage 2, as I was concerned at the lack of such a duty, particularly as there is such a duty under section 14 of the Domestic Abuse (Scotland) Act 2018. Further, Scottish Women’s Aid and the Law Society were generally in favour of such monitoring.

Again, the cabinet secretary indicated that he was sympathetic to the principle of information and data being available about the operation of new powers in the bill to help inform the Parliament and the Government when it comes to future policy. Of course, it will also help them to assess the effectiveness of the bill. However, again, the cabinet secretary suggested not moving the original amendment with a view to developing what I had proposed to make the provision as good as it could be and ensure that we capture both what is necessary and what is useful, and to ensure, of course, that the criminal justice agencies are capable of providing the data.

Therefore, amendment 22 provides for a reporting requirement for the DAPN and DAPO scheme. It requires information on the number of DAPNs, DAPOs and interim DAPOs made to be reported and for information to be reported about the number of extensions made to DAPOs. It also requires information to be reported on the number of prosecutions and convictions for offences for breach of a DAPN or a DAPO.

There is also the addition of a requirement to include

“information about the experience of persons who were, in respect of domestic abuse protection notices ... orders or interim ... orders, person B.”

All that will place a duty on the Scottish ministers to undertake work to establish the extent to which the system of DAPNs and DAPOs is effective in achieving its purpose of protecting persons who are at risk of domestic abuse.

Amendment 22 places the duty to report on the operation of the act during the first three years in which it is in effect.

Finally, MSPs will be interested to know that, in light of its interest in that matter, the amendment has been shared with Scottish Women’s Aid, which has indicated that it is content with it.

I move amendment 22.

Photo of Humza Yousaf Humza Yousaf Scottish National Party

Again, I thank Liam Kerr for the constructive manner in which he has engaged with the Government. I think that we have the balance right between quantitative and qualitative data. It is important that we have that in the amendment and it is really important for us to be able to understand the qualitative experiences of victims of domestic abuse, so I think that the reporting mechanism, which has become more common in legislation in recent years, is to be welcomed. I welcome Liam Kerr’s amendment 22, which the Government will support.

Amendment 22 agreed to.

The Presiding Officer:

Group 6 is on guidance on certain matters connected with tenancy proceedings in cases involving domestic abuse.

Amendment 7, in the name of the cabinet secretary, is grouped with amendment 8. The cabinet secretary will move amendment 7 and speak to both amendments.

Photo of Humza Yousaf Humza Yousaf Scottish National Party

Amendments 7 and 8 provide for the Scottish ministers to make guidance in relation to the changes that are introduced by section 18 of the bill, and to consult

“such persons as they consider appropriate” in the development of that guidance. The amendments also place a duty on social landlords to have regard to any statutory guidance that is published by the Scottish ministers and the new power “for recovery of possession” or termination of a joint tenant’s interest in a Scottish secure tenancy, as set out in section 18 of the bill.

Amendment 7 amends an existing section of the Housing (Scotland) Act 2001 on statutory guidance, to expand its remit to include cases where the new tenancy repossession or termination grounds are used.

Amendment 8 separately provides for guidance in respect of the new provisions that the bill introduces as new section 14(5C) of the 2001 act, which provides that landlords must provide “advice and assistance” to the perpetrator and any

“qualifying occupier in relation to the finding of alternative accommodation”.

We lodged the amendments to support social landlords in using the provisions and we will develop statutory guidance in consultation with key stakeholders in advance of bringing the provisions at section 18 of the bill into force. The guidance will cover a wide range of issues and positive practical examples, such as the type and level of evidence that landlords should consider before deciding to use the provisions, dealing with matters such as rent arrears and the types of advice and assistance that must be provided to perpetrators.

Amendments 7 and 8 moved—[Humza Yousaf]—and agreed to.

The Presiding Officer:

Group 7 is on the provision of tenancy following termination of tenancy—or of interest in tenancy—in cases involving domestic abuse.

Amendment 23, in the name of Rhoda Grant, is grouped with amendment 24.

Photo of Rhoda Grant Rhoda Grant Labour

In cases of domestic abuse, it is often the abuse survivor who has to flee their home and find alternative accommodation in a refuge or homeless accommodation. Often, the victim returns to their abuser because, although living in a refuge might provide safety, it is restrictive in space and freedoms, and homeless accommodation can be grim. That is especially the case if children are involved, because the survivor might feel that it is in their best interest to return home, due to their living conditions.

The bill endeavours to deal with that by trying to remove the abuser and allow the survivor to remain in their home. That raises issues with tenancies, whether they are joint tenancies or tenancies that are solely in the name of the abuser. My amendments seek, in different ways, to ensure that the survivor remains in the tenancy and becomes the legal tenant if that is their wish.

Amendment 23 would have the effect of the tenancy passing to the abuse survivor automatically, on the date that is contained in the eviction order that is issued by the court to end the tenancy of the abuser. That would ensure that the tenancy arrangement continued in the sole name of the survivor, regardless of whether they were a party to the original tenancy agreement.

Amendment 24 would allow for a new tenancy to be created in cases in which there are rent arrears, which would allow the survivor a fresh start, recognising that financial control is often part of domestic abuse. The amendment would allow 28 days for that to happen but stresses that it should happen as soon as practicable. The 28-day period might be required if the abuser has remained in the tenancy, and it might be the case that repairs and safety checks need to be carried out at the property before the survivor can safely take on occupancy.

Amendment 24 makes an exception to that duty in the very rare circumstances in which it is not possible or appropriate for the landlord to offer the tenancy to the survivor. For example, the landlord might be unable to locate the survivor, who may have gone off the radar because of being afraid of being tracked down by the abuser, or the survivor might be unsuitable for the tenancy for another reason. That could create a loophole, but, to avoid doing so, the amendment allows the Scottish ministers to issue guidance on what the exceptional circumstances might be.

The guidance must cover when a tenancy is deemed to be a continuation and when it should be a new tenancy in its own right. Where possible, a tenancy should be a continuation, but when there are rent arrears, those must be shared with the abuser, who cannot walk away and leave the survivor to deal with them. In that situation, it would be desirable to start a new tenancy.

The guidance must be clear that domestic abuse cases often involve antisocial behaviours, including rent arrears, drug or alcohol misuse and noise complaints. The guidance to landlords must ensure that they are aware of those issues and should not use them as a way of avoiding entering into a tenancy with the survivor. The survivor must be supported to continue the tenancy.

I move amendment 23.

Photo of Humza Yousaf Humza Yousaf Scottish National Party

I thank Rhoda Grant for articulating her reasons for lodging amendments 23 and 24. I will speak about amendment 24 first, because we intend to support it. We do not intend to support amendment 23—I hope that my explanation will provide members with the reasons for that.

I thank Rhoda Grant for working closely with the Government on amendment 24. As she has said, amendment 24 places a legal requirement on social landlords to offer the tenancy of the family home to the victim within 28 days of the perpetrator being evicted on grounds of domestic abuse. The amendment does not go so far as to require the tenancy to take effect from a particular date. Rather, it provides landlords with the flexibility to deal with cases such as when the perpetrator has remained in the family home prior to eviction, or when the landlord has to carry out essential repairs or legal safety checks prior to the victim moving in. That will provide further assurance to victims that they will be offered the tenancy of the home when a perpetrator is evicted on grounds of domestic abuse.

Amendment 24 relieves landlords of the duty to offer the tenancy if there are exceptional circumstances in which that is not possible or appropriate. An example of that would be if the landlord were unable to locate the victim to make the offer of the tenancy to them. We anticipate that such cases would be very rare, but we have made provision for an exemption to the duty to make the offer so that it is not absolute.

The amendment also requires landlords to have regard to any guidance that is issued by the Scottish ministers about all those matters.

I understand that the intention behind amendment 23, in the case of a joint tenancy, is to create a new tenancy on the termination of the perpetrator’s interest in the property, with a view to preventing the victim from becoming solely responsible for any rent arrears that accrued during the joint tenancy with the perpetrator. All of us recognise the good intention that is being pursued, but the approach has key deficiencies and would have adverse unintended consequences.

First, the amendment does not provide for the creation of a new tenancy; rather, it states that the tenancy would pass in law to the victim, which means that the existing tenancy would pass to the sole tenant. Even if the amendment provided for a new tenancy, the landlord would still have the ability to pursue all or any former joint tenants for rent arrears, should they wish to do so. The amendment would not prevent that.

As for unintended consequences, Rhoda Grant’s amendment 23 would not work in all cases, because it does not take into account a situation in which there might be more than two joint tenants. In such a case, the amendment would have the unintended and unfortunate consequence of transferring the whole tenancy, and not just the abuser’s interest, to the victim of the abuse.

For example, two friends could live together as joint tenants, then one of them could form a relationship with a person who became a third joint tenant. If abuse was perpetrated, amendment 23 could remove a person’s legitimate tenancy rights, as the tenancy would transfer to the victim of the abuse. The tenancy interests of the friend of the victim of abuse would then be removed. I am sure that that is not what Rhoda Grant seeks, but that would be the amendment’s unintended consequence.

To achieve the aims that Rhoda Grant seeks, I note that the primary aspects of the legislative changes that we are introducing are to ensure tenancy sustainability and to help landlords to provide on-going support to victims of domestic abuse by proactively pursuing tenancy transfers to allow a victim to remain in their family home and by providing any support and assistance that is required, which includes managing rent arrears. As part of that, landlords will need to follow existing pre-action requirements, which the Government intends to amend to make it a legal duty to take into account the effect that domestic abuse has on the accrual of rent arrears.

For all those reasons, I cannot support amendment 23 and I urge Rhoda Grant to withdraw it. If she does not withdraw it, I urge members to reject it. I support amendment 24 and invite members to do so, too.

Photo of Rhoda Grant Rhoda Grant Labour

Amendments 23 and 24 would work together to provide a range of options for victims. It is important for a tenancy to continue when a victim desires that, because it gives them security, especially in financial matters, to show that they have lived at an address for a length of time.

The two options would allow for the situations that the cabinet secretary talked about and would work well jointly.

Amendment 23 would remove the perpetrator’s interest and transfer it to the victim without forming a new tenancy. That is important.

I intend to press amendments 23 and 24. Together, they would provide a safety net. Regardless of the situation, they would provide the victim with options that they could work through with their landlord.

The Presiding Officer:

The question is, that amendment 23 be agreed to. Are we agreed?

Members:

No.

The Presiding Officer:

There will be a division. As this is the first division of the afternoon, we will have a five-minute suspension to call members to the chamber and allow members to access the voting app.

16:44 Meeting suspended.

16:51 On resuming—

We will go straight to the vote on amendment 23, in the name of Rhoda Grant. Members may cast their votes now.

The vote is now closed. Members should please let me know if they were not able to vote.

Photo of Graham Simpson Graham Simpson Conservative

On a point of order, Presiding Officer. My screen, which I have just refreshed, did not show a vote. I would have voted no.

The Presiding Officer:

Thank you, Mr Simpson. I will make sure that that vote is recorded.

Division number 1 Domestic Abuse (Protection) (Scotland) Bill: Stage 3

Aye: 24 MSPs

No: 95 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 24, Against 95, Abstentions 0.

Amendment 23 disagreed to.

Amendment 24 moved—[Rhoda Grant]—and agreed to.

That ends consideration of amendments.

As members may know, at this stage in proceedings, I am required under standing orders to decide whether in my 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 Domestic Abuse (Protection) (Scotland) Bill does not do so and therefore does not require a supermajority to be passed at stage 3.

We will have a five-minute suspension before we move on to the debate on the bill.

16:54 Meeting suspended.

17:06 On resuming—