Tuesday, 4 July 2017
Domestic Violence Bill 2017: Committee Stage (Resumed)
On amendment No. 1, Senators Conway-Walsh and Ó Donnghaile have tabled a substitute amendment by adding their names to the original amendment No. 1. As the original amendment No. 1 has already been moved and debate commenced on it, the Cathaoirleach has had to disallow the substitute amendment. This is a technical disallowance and does not in any way impede the right of the Members involved to speak to the amendment.
We will now resume debate on amendment No. 1 as it appeared on the list of amendments dated 31 May 2017. Amendment No. 1 was grouped with amendments Nos. 52 and 53 and Senator Alice Mary Higgins was in possession at the time.
I welcome the Minister of State, Deputy Stanton, back to the House.
I welcome the Minister of State to the House. I commend the former Minister for Justice and Equality, Deputy Fitzgerald, on putting forward what is overall very progressive legislation and legislation which moves us forward. The amendment we were debating when we adjourned was one which is essential if we are to ensure the Bill goes far enough to make a significant difference. I acknowledge the former Minister indicated that with regard to amendment No. 1, the Department is looking at putting forward definitions. I am happy to work with the Department to see what proposals it makes and to engage with it constructively between now and Report Stage.
Amendment No. 52 is very crucial. It establishes very clearly an offence of controlling and coercive behaviour. The arguments we have heard against the introduction of this very necessary offence have been inadequate. Senators have talked about the complexity but all law comes with complexities. They go against the advice we have had from all of the NGOs working in this area.
I will mention a case that has emerged since we debated amendment No. 52 of the very tragic deaths in the UK of a man who killed his wife and daughter. His two sons have given extensive testimony, which is important to listen to, about the experience of domestic violence. It chimes with all of the case studies, evidence and experience our NGOs in Ireland have told us about. They talked again and again about the word "controlling" and said their father was a controlling, vitriolic bully. They talked about the homicides that took place as a result of decades of abusive and controlling behaviour. They talked about these not being a single event but the culmination of a lifetime of struggle.
It seems from the evidence it was a premeditated crime that took place after his wife and daughter had looked to establish themselves separately in a separate home. The reason this is important is there is a real concern that our legislation as it stands is not adequate. It is not adequate to talk about assault when we do not talk about the patterns of behaviour surrounding it. We cannot talk about individual events and it is not adequate to talk about harassment.
If we look at the transcripts of cases, when people go into court and are asked about assault and harassment, they are asked why they responded to texts or why they returned to the house. None of that recognises the reality of coercion and control and of the manipulation and threatening environment that is created by coercion and control. It is a difficult area to step into but it is a much more difficult area predominantly for the women but also for children and men who live in such environments. It behoves us as a State to engage with this.
There is a move to look at controlling and coercive behaviour a little more in terms of issuing protection and barring orders. A breach of order may be one way in which we can ensure a criminal consequence. This neglects the key fact that it is at the point when people take a step out of an environment of control and coercion to try to reach for help that they often become particularly vulnerable and may be most vulnerable to an escalation in danger and violence. If there are situations where people have evidence and feel they can come forward with a crime of controlling and coercive behaviour, we should allow them to do it and ensure they have double and appropriate protection of a criminal prosecution and that a criminal prosecution can be brought in that area. It is also important to state that controlling and coercive behaviour is not necessarily a compound and complex issue. It can be prosecuted alongside a situation of assault. It in no way prevents conviction for assault or harassment, for example. It simply provides another thread or strand and is something that moves beyond those individual instances to a pattern of behaviour. We have more esteemed legal experts such as Senator Bacik in the House. She has spoken about how in England and Wales we are seeing successful prosecutions under the provisions of sections 76 and 77 of the Serious Crime Act in respect of controlling and coercive behaviour. We are seeing an increase in the number of prosecutions because the courts are learning how to prosecute it. The signal that we send in respect of controlling and coercive behaviour being regarded as a crime by this State and not a matter of civil dispute is essential. There have been very few successful prosecutions in Ireland of marital rape, but the signal that was sent, which was that it was not okay or a matter of personal disagreement, argument or complexity and that there are behaviours which we as a State regard as unacceptable and criminal, was important. That signal is also important here.
I urge the Minister of State to engage with us and to accept this amendment. I recognise that the Department may wish to make changes to the amendment on Report Stage. Having, I hope, successfully passed this amendment on Committee Stage, I would be happy to work with the Department on the nuance or detail of any aspect of the amendment, as I am sure would those in my group and many others in the House. However, I consider it a fundamental, crucial and red line issue if this Bill is to do what we want it to do.
I also welcome the Minister of State and his advisers to the House. There have been changes since the last debate and there was an attempt to add names. However, anyone who reads the debate will see that it is not necessary to have one's name on every amendment. There are those of us who contribute passionately and will be regarded by the interested public as having taken a significant role. Therefore, I am not too worried about that.
Barnardos has taken a strong line on the absence of a specific offence of domestic violence. It stated that it is a significant weakness as it perpetuates the misconception that domestic violence is largely physical abuse and that "[w]hile some victims do experience physical and sexual abuse, [it fails to understand that] domestic abuse is often characterised by persistent, controlling and coercive behaviour that causes emotional and psychological trauma on victims including children". There we have the phrase "controlling and coercive behaviour" which is defined. "Domestic violence" is defined in the amendment as is "controlling behaviour" and "coercive behaviour".
Since the last debate, I imagine that we have all been contacted by the Law Society. Its first recommendation in its communication on the Bill is that a definition of domestic violence be included in section 2 of the Bill to include all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit, including online stalking and harassment. The Law Society, an independent body, strongly recommends, as its first recommendation, that this should be taken on board.
In addition, its document states that, with regard to the inclusion of a definition of domestic violence in section 2, while the entire Bill is concerned with domestic violence, there is no definition of domestic violence in it. On the surface, it seems quite absurd. We have a Bill dealing with a specific subject that contains definitions of this, that and the other, but no definition of the principal source of concern in the Bill. Unless the Minister of State can provide an alternative explanation, that seems to be a serious lacuna.
On the last occasion, if my memory serves me right, the Minister said that it was a good idea to include such a definition. One therefore assumes that the definition will be accepted. It is arguable whether this specific and particular definition will be accepted but the proposer has indicated that she is happy to accept emendations which would clarify and improve the legislation. The Law Society continues by stating that such a definition is required to ensure that domestic violence, as defined in Article 3 of the Istanbul Convention, is recognised in law and practice and that that definition goes beyond physical violence to mean "all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit". I note the language used. Such a definition is required. In other words, legislation is defective without this definition.
The second thing the Law Society states is that the United Nations Committee on the Elimination of Discrimination against Women recommended that Ireland produce a specific definition of domestic violence and other emerging forms of gender-based violence such as online stalking or harassment. Therefore, another body, the United Nations Committee on the Elimination of Discrimination against Women, has recommended that this country take this on.
I see now that my memory is accurate because the third point the Law Society makes is that the Minister for Justice and Equality observed on Second Stage of the Bill that legal issues prevent the inclusion of a definition of domestic violence. The Law Society states that it would welcome an indication of those legal issues so that an accommodation within a carefully considered definition can be found. The Minister has had a number of weeks to consider this and I very much hope that it will be possible for the Seanad to be advised of what precisely are the legal issues to see if, with the assistance of Senators, we can find a way around this. It seems absurd that we have a situation where a definition of domestic violence is left out of the Bill. We have it in other jurisdictions, so they apparently have no legal problem. Perhaps it is a problem peculiar to the Irish Constitution. If it is, let us have it out in the open and let us see what is the situation.
With regard to the situation, which is often concealed, of the impact on children of domestic violence, I got figures from Women's Aid. In 2016, Women's Aid received 3,823 disclosures of child abuse in the context of domestic violence. When the figure is broken down, we find that 3,558, or 90%, were disclosures of emotional abuse. Only 183 were disclosures of physical or sexual abuse. That is very interesting because it tells us that the overwhelming preponderance of damage inflicted upon children in situations of domestic violence actually constitutes emotional abuse.
To help the Minister of State, I will give an example of a definition from our nearest neighbour, the United Kingdom. This has apparently gone through and was passed. I think the section is in the family law Act but there is no point wasting time looking for the specific section. I am sure the Minister of State will be able to find it. In fact, it is section 76 of the Serious Crime Act 2015 that deals with controlling or coercive behaviour. Controlling behaviour has been described as, "a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour". Coercive behaviour has been described as, "an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish or frighten their victim".
I also have a non-exhaustive list of examples from the United Kingdom which includes: isolating people from their friends and family; depriving them of their basic means; monitoring their time; monitoring a person via online communication tools or using spyware; taking control over aspects of their every day life such as where they can go, who they can see, what to wear and where they sleep; depriving them of access to support services such as specialist support or medical services; repeatedly putting them down such as telling them they are worthless; enforcing rules on activity which humiliate, degrade or dehumanise the victims; forcing the victim to take part in criminal activity such as shoplifting, neglect or abuse of a child to encourage self-blame or prevent disclosure to authorities; and financial abuse including control of finances such as only allowing a person a punitive allowance.There was also a case, which I instanced the last time, of a man deliberately controlling the bank accounts of his wife. Other examples are threats to kill, threats to a child and threats to reveal or publish private information, such as threatening to out someone, for example, threatening to tell everyone that a person is gay. Offences dealing with the publication by one party of intimate photographs or videos that were exchanged in an intimate relationship, to the shame and embarrassment of the second party, could be included. It is not listed here but I am sure it could be part of it. Other examples are criminal damage, assault, rape and preventing a person from having access to transport while working. It is not an exhaustive list. It shows what is being done in the United Kingdom.
On the previous day, almost everyone, including the then Minister for Justice and Equality, agreed that a definition of domestic violence was a significant element missing from the Bill. The Minister quoted legal difficulties and told the House there were legal constraints on introducing such a definition. She did not specify what those legal constraints or difficulties were. Will the Minister of State indicate to the House what those difficulties are and how they can be addressed? That is mostly about amendment No. 1.
I am not sure I have indicated the correct place for amendment No. 52, which introduces an offence, because it comes right at the end of the Bill. If it is not the appropriate place, it can be looked at. It creates the conditions for the commission of an offence. It provides "A person A commits an offence if (a) person A repeatedly or continuously engages in behaviour towards another person B that is controlling or coercive". If the amendment is accepted, we will have definitions of controlling and coercive behaviour. I will not read the entire amendment because I take it it has been read and it would be time-wasting to read the whole thing. The main thing is it creates an offence of controlling or coercive behaviour in an intimate or family relationship.
I look forward with interest to the Minister of State's response.
I welcome the Minister of State to the House, in particular given his former role as Chairman of the Committee on Justice, Defence and Equality. Senator Conway and I had the pleasure of serving on that committee with Deputy Stanton as Chairman. During that time, we prepared a report on domestic violence which made some key recommendations, and I am glad to see the Minister of State has it in his hand. Among the key recommendations was that there would be a specific definition of domestic violence and an offence of domestic violence. Senator Norris referred to the Law Society recommendation that there would be such a definition, and we are debating amendment No. 1 which provides for such a definition. We have all spoken at some length on this and I do not wish to waste time today. As we said the previous day, we would welcome the Minister of State's constructive engagement and that of the Minister, Deputy Flanagan.
On the previous day the then Minister for Justice and Equality, Deputy Fitzgerald, said she would consult the Attorney General and Parliamentary Counsel on the issue of both the definition of domestic violence in amendment No. 1 and the proposed definitions of an offence of coercive or controlling behaviour in amendments Nos. 52 and 53. She said she had had some preliminary discussions with the Attorney General but would like to have time to examine the matter and come back on Report Stage. That was on 31 May. Will the Minister of State tell us if there has been any progress since then? Will the Minister, Deputy Flanagan, and the Minister of State, Deputy Stanton, accept at least the spirit of these amendments and come back to us with a reworded version or an indication of whether the amendments will be reported on Report Stage?
I will not repeat the lengthy debate we had the previous day other than to say that in respect of amendment No. 1, I pointed out the need for a definition of domestic violence, which the Law Society has also recommended. SAFE Ireland and others have also called for it and I welcome their representatives to the Gallery. There has been a strong indication from the Law Society that the approach adopted in amendment No. 1 would be very much in line with the Istanbul Convention. The word it used was "required" under the Istanbul Convention.
In terms of amendments Nos. 52 and 53 and the proposed offence of coercive or controlling behaviour, I spoke at some length the previous day about the equivalent offence in the UK under the Serious Crime Act 2015. Although it is new legislation - it is only two years old - we have already seen quite a number of prosecutions and 59 convictions. The Minister of State is aware of the very recent article in The Guardianon 20 May which provided an overview of the operation of the provisions in the Serious Crime Act on coercive and controlling behaviour. It was a very accessible and well-written overview quoting some of the academic research on it. It is clear that it is possible, very feasible and practical to define an offence in such a way that it is effective. I am looking again at what the Tánaiste said the previous day. Her main concern was that any definitions or new offences we would introduce would be effective for victims and survivors of domestic abuse. It is a very valid concern. We need to look carefully at the wording. It is possible, particularly using the near neighbour example, that such an offence may be drafted.
Is there a need for such an offence? The Tánaiste addressed this in her speech and said she did not see any gap in existing law, in particular because of the Non-Fatal Offences Against the Person Act 1997. I take issue with that. I made a note the previous day that I wanted to respond to the Minister on it. I do not accept that existing Non-Fatal Offences Against the Person offences are sufficient to cover the gamut of domestic abuse behaviours, especially because that Act was not drafted or prepared with a view to covering violent or harassing behaviours in an intimate relationship setting. That is the key difference. That is why the changes have been made in the UK. It is why the Law Society is recommending we provide for separate offences. I used to defend under the provisions of the Non-Fatal Offences Against the Person Act in the criminal courts. They are drafted for the most part for offences of assault in a public setting, including, for example, harassment where there is stalking but it is not specific to a domestic setting. They are offences that are used routinely in domestic violence settings, particularly in the District Court. I accept that but they are not necessarily appropriate to those settings. The idea we would draft and prepare specific offences for an intimate relationship setting is now seen as a good idea and is best practice.
The Tánaiste also expressed concern about whether it would be possible to prosecute successfully for a specific offence of coercive or controlling behaviour. Looking at the overview of English practice since 2015, in many cases it is an offence charged alongside other offences related to domestic violence, but there has been at least one successful prosecution for a stand-alone charge. As gardaí and prosecutors become more familiar with an offence like this, we will see an increasingly effective use of it as a stand-alone offence. It may also be prosecuted alongside other offences. Has there been any progress since 31 May on accepting the principle of these important amendments which we are all seeking to push in one form or another?
I thank the Minister of State for being here. I will be brief and the reason I will be brief is this Bill gives us the instruments we need to prosecute the crime of domestic violence. I will not take up all my time talking about it because we have spoken about it on other Stages. Those of us who have worked with victims and survivors of domestic violence for a number of years know exactly what needs to be done, and this is what needs to be done.The Minister said it was too complex, but I do not accept that. The complexity arises where a child is robbed of his or her childhood or where a woman and children are in fear of their lives. That is the reality, so there is an urgency with this Bill. It is about power and control and the physical, psychological and financial abuse that takes place to control people's lives. We need a definition and it is provided here. Sinn Féin supports all of these amendments. Let us get the Bill on to the next Stage, so we can protect the lives of women, children and others who are experiencing domestic violence in this country.
I thank Senator Conway-Walsh for her brevity. I remind Members that there are 54 amendments in 22 groups as well as some to be taken singly. We definitely will not finish today given that we are still on the first amendment after half an hour, with three more speakers to speak on it. If Members try not to repeat what others have said, where possible, we might get through it a little faster.
Many of us have been in contact with Barnardos, the people who are dealing with this situation. Their first concern is that children are often the hidden victims of domestic abuse. It is crucial that this is part of the Bill. They are trying to help and save the child. They seek to ensure that the damage caused by the exposure of children to domestic abuse is recognised by ensuring risk assessment is undertaken by experts available to the court in respect of the granting of barring orders. These must be included for children.
Barnardos seeks the establishment of a network of child contact centres across the country to facilitate court ordered supervision of access visits. These matters must be included in the Bill because it involves children. It is crucial to consider extending the duration of emergency barring orders to at least six months. Consider the statistics. There was a major report in my local newspaper stating that there has been a big increase in the number of women fleeing domestic violence. Its incidence is increasing so we must ensure that this Bill is passed.
I brought my concerns to the previous Minister and she was going to deal with them. The biggest concern is awareness. There must be an awareness campaign to show what women and children are going through. There is no such campaign. I accept that all of the amendments must be discussed but we must push this Bill through urgently. When it is passed we must ensure there is a large awareness campaign for the women and children of Ireland who are going through this violence. Almost one in four Irish women experience some type of physical violence but what is frightening is that 70% of Irish women, which is top of the European table, do not contact any services or organisations, including the police, following the most serious incidents of violence. That is worrying. It is one of the biggest issues for this Bill. We must ensure there is a big awareness campaign and that we help women and children who are violently abused.
I welcome the Minister of State, Deputy Stanton. Senator Bacik is correct that a very useful and important job of work was carried out by the Oireachtas justice committee, under the chairmanship of the Minister of State, when it examined this issue. At the time, the report and its recommendations were groundbreaking, as is this legislation. I was particularly struck by the figures from Women's Aid relating to emotional abuse that were cited by Senator Norris. One can talk about physical abuse and use the traditional phrase that "sticks and stones will break my bones but names will never hurt me". That is untrue to a large extent.
Emotional abuse and people playing mind games are extremely serious and happen far too often. Definitions are important. The Acting Chairman has pointed out that there are a number of proposed amendments to the legislation and I agree with him that they will not be dealt with tonight. However, that is good too because these issues must be aired. Where better to get into the nitty-gritty of what is important in legislation than in Seanad Éireann? The amendments are worthwhile and I urge the Minister of State to reflect the recommendations of the report produced by the committee of which he was the Chairman and to put meat to the definitions. Definitions are ultimately decided on by the courts. When a court is deciding on a prosecution or whatever it is usually based on how the definition is interpreted by the courts.
I also acknowledge the representatives of Safe Ireland and the other NGOs who are in the Chamber. My engagement with the NGOs in this area has been fruitful and an informative learning curve. The NGOs do an enormous amount of work that is mostly under the radar and often not recognised. Their input in giving us important briefings for Committee Stage of the Bill is important. Report Stage follows Committee Stage and that is when the Government really responds to what is articulated here. In many cases the good and salient points that make a difference and are articulated on Committee Stage tend to find themselves surfacing, in one way or another, through Government amendments on Report Stage. I sincerely hope that will happen in this case.
I will speak briefly on amendment No. 52, mainly to acknowledge its importance. I have been fairly silent throughout the debate on this Bill and one of the reasons is amendment No. 52, which deals with coercion and controlling behaviour. This is something that has impacted me personally, so I still feel that I cannot stand in the Chamber and acknowledge it out of fear of inviting that type of behaviour back into my space. It is an extremely important amendment and if it is not accepted today or if the Government does not make decent progress on it, I reserve the right to submit a version of it on Report Stage.
I thank Members for their welcome. Obviously there have been political changes since the last time this legislation was discussed here by the then Minister, Deputy Fitzgerald, and I have been asked to take today's debate. As Senators Bacik and Conway said, I chaired a committee which produced a report on this issue. I will not say it is coming back to haunt me, as good and serious work was done there.
Much of that work is reflected in the Bill and in the contributions from Senators both on the last occasion and today. The previous Minister for Justice and Equality spoke on these matters, and the Minister is in consultation with the Attorney General and the Parliamentary Counsel about them.
A number of Senators asked about the progress. I listened carefully to what was said and I am cognisant of other work that has been done and of the proposals put forward by various NGOs on this matter. Officials have begun drafting and they are in ongoing consultation with officials in the Office of the Attorney General. It behoves all of us to examine and test both sides of every argument, which is why today's debate is so good.
I appreciate what Senators are attempting to do in these amendments.They seek to provide a definition of domestic violence and to provide for a specific offence of coercive control. I am very sympathetic to that, as I was when the report was published in 2014. Senator Norris read a long list of definitions of domestic violence and said there is one more but it was not on the list. We have to be careful about having a circumscribed list because other things might or might not occur to us. If they are not on the list is there a risk to people who might be suffering domestic violence? The list is endless and a definition cannot be endless. This is the challenge. If the item is not on the list is there a risk that the perpetrator would go unpunished? We have to be cognisant of this. I have a very open mind on this. I welcome this debate and interaction.
The court in granting an order to a victim has already a wide discretion wherever there are reasonable grounds for believing that the safety and welfare of an applicant or a dependent person so requires. It would be unfortunate if a definition of a crime of domestic violence were to circumscribe this broad definition in any way. I will be interested in Senators' reaction to that comment. I am not opposing the amendment; I am debating it.
The awareness campaign was mentioned. The former Minister for Justice and Equality secured €1 million for 2016 and another for 2017, the first two years of a six-year national awareness campaign. The first three years concern domestic violence and the next three, sexual violence. I am concerned that Senators are not aware of the awareness campaign. We need to publicise it more. What the Senator says is very useful. The next phase of the campaign will be at the end of August into September.
Section 2 appears to be confined to defining domestic violence. This is a technical issue which I am sure can be overcome. The definition is not linked to any subsequent provision in the Bill. This is a technical legal problem with amendment No. 1 which we must work on. There is no attempt to capture coercive and controlling behaviours, including those with a psychological element. I have no ideological difficulty with defining domestic violence or creating an offence of coercive violence but I have concerns in case it is detrimental to victims. We have to reflect more on that. We do not put something into legislation that could be detrimental. We are all on the same page in that respect. If we can do it we will but we need to reflect more and get more advice on it from the Office of the Attorney General. That is happening as we speak.
What constitutes domestic violence has a wide currency and covers a broad spectrum of behaviours. It is a very complex issue and the amendment is proposed to demonstrate just how problematic it is to define in statute. I accept that behaviours in a domestic setting that involve emotional abuse, humiliation and fear are extremely detrimental as they are an abuse of the trust associated with an intimate relationship. However, effective legislation needs to be enforceable. Most instances of domestic violence take place in private. The difficulties of obtaining evidence of non-physical behaviour, and the harm it causes, to satisfy a criminal standard of proof, that it is beyond reasonable doubt, in order to secure a conviction, are obvious.
The difficulties in securing convictions for relatively simple offences will be compounded in the case of an offence of domestic violence. In considering the issue the Department consulted with relevant criminal justice agencies, which advised that in general there is no gap in the range of offences that can be prosecuted in domestic violence cases primarily under the Non-Fatal Offences against the Person Act 1997. Acts of physical violence such as assault and assault causing harm and sexual violence are already offences, as is the threat of violence. Non-violent abuse is also captured by the harassment and coercion provisions of the 1997 Act. Likewise, damaging property and animal cruelty are existing offences. Prosecuting an offence of domestic violence in addition to other existing criminal offences would inevitably make prosecuting more complicated and create further burdens for victims. That is another concern and we have to be careful about that. As it stands the court can take into account the fact that such acts occur in a domestic setting when sentencing an offender. The provision proposed significantly overlaps with existing criminal offences and duplicates existing offences as well. I would like Senators to consider these issues and would welcome their advice on them later on Report Stage. I am willing to examine further the text of the amendments and the valid points made by Senators during this debate. We are in consultation with the Attorney General and the Parliamentary Counsel on these matters and where possible and appropriate I will bring forward amendments on Report Stage. If that does not seem possible I will explain why.
Amendment No. 53 would have the effect of moving operational independence for investigations away from An Garda Síochána into the political arena. It is a longstanding principle that the Minister for Justice and Equality has no role in the conduct of Garda investigations and the advice is not to depart from that at this time.
In March of this year, the Scottish Parliament published the Domestic Abuse (Scotland) Bill which defines abusive behaviour as including psychological abuse. The legislation is still before the Scottish Parliament and it is too early to determine whether this will have a positive impact. I am advised it might be more appropriate to observe the developments in Scotland, to determine how this offence will work and identify any unintended consequences. We are working in parallel. While there is no offence of domestic violence in England and Wales there has been an offence of coercive control since December 2015. Official data on the impact of this offence will become available this autumn, which will be interesting. UK media reports from last August indicate that since the offence of coercive control was introduced, there have been more than 20,000 prosecutions for domestic violence and research has found that since its introduction, 202 people have been charged with the offence of coercive control. Little information on successful prosecutions is available although I think I got some information on the way in here from Senator Bacik, which I must reflect on and study.
In September 2016 it was reported that the first convicted person was jailed for an offence of coercive control. However, the conviction was in addition to convictions for serious physical assaults on the victim, which unfortunately led to the person's permanent disability. This demonstrates the potential difficulties associated with successfully prosecuting such an offence on its own.
I have listened very carefully to the points made by Senators. They are valid and sincere but we need to do some more work on this. I would like their permission to report on that work on Report Stage, having listened carefully to what they had to say today and having had a chance to reflect on the other work that has been done by the committee and other bodies. I have an open mind on this but I would like to wait for the advice from the Office of the Attorney General and the Parliamentary Counsel.
Will the Minister of State clarify that he has accepted the principle of considering a definition of domestic violence, including coercive control, notwithstanding the difficulties surrounding it to which he has alerted us? Is that what we will consider on Report Stage, not the question of whether we have a definition?
I have an open mind on it and we are consulting with the Office of the Attorney General and the Parliamentary Counsel on this. I do not want to make matters worse by putting something like this in. We have to be very careful that we do it correctly. My personal view is that if we can we will but I have yet to be convinced and we need to tease out some of the issues I have indicated. I would like to see the results from the UK to see what happens there.Scotland is also having such a debate at present and I would like to see what it will come up with at the end of the process as well. That said, I have listened carefully to what Senators have said. I ask them to reflect on what I have said and the points I have made. I look forward to having a debate with Senators afterwards and some Senators have had discussions with officials in the Department on the issue as well. While I am very open on the issue, we need to be sure we do not allow any loopholes in the legislation or do anything to make things worse for people if we have a prescribed list. A technical issue also arises to prevent acceptance of this amendment now because it is not linked further down the Bill. However, we would need to come back on Report Stage to fix that, if the amendment were accepted.
I am happy to leave the time open if I am sure that a definition of some type is envisaged because domestic violence is cited in the legislation on 36 occasions and we need to be clear about what it is we mean. It is a difficult area because it is very difficult to define but we have been in similar situations previously and we have got there. The Minister of State has drawn on his experience of the drawing up of the 2014 report of which he was part. I would be happy to hold back and give the extra time. The information from the UK will be very useful in terms of coercive control and how that is working. However, I only want to allow the time if I know we will be looking at a definition and doing the work on that with the Minister of State and the Department in the meantime.
It is very useful that the present Minister of State, Deputy Stanton, was the Chairman of the committee that produced the report and is familiar with the situation. It is worth pointing out that the report did recommend, as I understand it, the inclusion of a definition. That is the first point.
The second point is that the Minister of State stated he is interested in waiting until we get the results from the operation of a similar Act in the United Kingdom in terms of the definitions and so on and so forth. That is in the autumn. Is he suggesting that we suspend the passage of this Bill until the autumn? The Minister of State has indicated "No", so I would be interested to hear if he has anything further to say on that.
With regard to the definitions, could I just point out there are two pages of definitions in the Bill already? We define all the different Acts, an interim barring order, a barring order, a child, a civil partner, a court, a dependent person, an emergency barring order, full age, interim barring order, Minister, prohibited degree of relationship, protection order, respondent, a safety order, spouse, welfare and so on. We have a whole range of definitions already. The Minister is quite correct that the Civil Service in particular is very often anxious not to create a list that appears to be exhaustive. It has very good reason for that, because it is beyond the wit of man to produce a list of anything that is really exhaustive. I have a positive, practical suggestion to address the issue. What I suggest is the inclusion of words along the lines of "may include" or "shall include". That means that it is very clear in the legislation that it is not exhaustive. It includes certain things, which are considered to be the main items that will be considered by a court, but there may well be other ones. I think "shall include" would be better as by putting that in, one would thereby overcome the obstacle of a hypothetical further situation that arises down the line.
The Law Society and Barnardos, among others, have suggested these things. The provision is also in operation in the United Kingdom where the difficulty that the Minister of State perceives has not been found to exist. As the Act there is in operation with a definition, it remains for us to be told what precisely is unusual in the Irish situation that means we cannot have a definition whereas in the United Kingdom they have operated one and apparently with some success. It seems to me that this was the principal area outlined. I did ask the Minister of State what are the stumbling blocks and I had a slight consultation with a colleague about voting patterns so I might have missed something but the main objection was the fact that this might purport to be an exhaustive list and that it would complicate matters. I think I suggested a way around that which the Minister of State and his advisers might consider.
I have huge admiration for Senator Kelleher, who is a really great Senator in terms of the work she does. The Minister of State has said clearly he has an open mind on this and he will have to be guided by the legal advice of the Attorney General. He did chair the report in which a definition was recommended. I personally believe definition is a good thing once there is a caveat that the courts would have broad discretionary interpretation because the Minister of State is correct, definition can be endless and the last thing the legislation should do is create a scenario whereby somebody finds himself or herself in a difficult situation and the courts find themselves statute-bound or have difficulty dealing with the situation because we have defined domestic violence in a very specific way. Whether it is two pages or 22 pages, the last thing we want to do is ask why we did not have a 23rd page to cover something that has not been covered, so we must be very careful.
We have a responsibility to the victims of domestic violence to be very careful and to do this right. We are all on the same page in this regard but the one thing we must ensure is that we do it right and that is where we get the guidance from the Minister of State. That is his job. That is why he has the service of the Office of the Attorney General to come back to us and tell us whether something will cause problems. If it is not going to cause problems I know he has an open mind on it and he will ensure the Bill is designed in such a way as to offer maximum protection but if it does cause problems, we have a responsibility to the victims of domestic violence to take that on board.
I will be brief. I do not disregard what Senator Conway has said but I share Senator Kelleher's sentiment. It is not even a case of concern as we are all on the same page here. We all seek to have the best legislation passed because, as Senator Conway-Walsh said during her contribution, this is about helping people and supporting existing and future victims.
I wish to hone in, first, on the issue of engagement. The Minister of State has committed to a process of engagement with Senators because we seek the best form of legislation that takes on board the sentiments we have expressed. The sentiments on definition are very important and they are shared by many Senators. The timeline is also an issue and Senator Norris touched on it. I do not suggest for a moment that it would be the case - this is why engagement is key - but the last thing we would want to see is something coming back on Report Stage and then we would not have an opportunity to amend it. I want a commitment that the engagement will begin soon and will be forthright. The Minister of State has a willing audience in terms of Members of the Seanad. I reiterate the point made by Senator Norris that if we are waiting on the results, we will be waiting for a fairly long time.
First, on a point of information to the House, it is important to note that paragraph (c) of amendment No. 1, which is being discussed, is not a prescriptive list. Let us be very clear about that. It explicitly refers, for example, to psychological behaviour and states "but is not limited to" and gives examples. Where we have those examples it is very explicit that it includes what is set out but is not limited to them. There will be other behaviours that emerge.We want to move past having a woolly definition because there is a wide political perception that domestic violence constitutes physical abuse. It is a very strong argument that has been put forward. For example, Russia has moved to the point where only hospitalisation constitutes domestic violence. This is a trend and this is why we propose to name "psychological", "controlling behaviour" and "coercive behaviour". It is very clear that is not limited, but it is to build an understanding among judges and others practising the law that these are the kinds of things they can look to that might form part of a pattern. We are looking at a cultural shift in how we address this issue here. The amendment is constructive and not prescriptive. I do not believe we will have a comprehensive 23-page list. In legislation we may have a definition of robbery, but we do not need to list every item.
The psychological aspect is important because the European Union Agency for Fundamental Rights research on the impacts of violence against women across Europe shows that unlike other countries, Ireland has a longer impact of feelings of loss of control and loss of confidence. I believe psychological violence has a longer impact in Ireland because it is invisible in our system.
I wish to put a direct question to the Minister of State, with whom we are keen to work. Regarding amendment No. 52, I believe we need to have the crime of controlling or coercive behaviour in this legislation when we complete Committee Stage. I would be very happy to work with the Minister of State - I am sure others would also be happy to work with him - to improve that on Report Stage.
In deciding whether to press amendment No. 1, can the Minister of State confirm that on Report Stage he will introduce definitions of domestic violence and coercive behaviour, and that the definitions meet the standards set out in the Istanbul Convention that Ireland has signed and hopes to ratify? I recognise that others across this House reserve the right to improve on our amendments and produce their own on Report Stage. If there is a risk of an imperfect amendment, there is a greater risk of not fulfilling our obligations under the Istanbul Convention of not having a definition of domestic violence in this legislation. Will the Government introduce proposals and definitions on Report Stage to allow us not to have to press amendment No. 1 and constructively engage with the Minister of State? An open mind is not enough; we need a promise.
I notice a little trend, almost implied, that domestic violence is universally and uniquely by men against women; it is not. There are much smaller numbers, but there are numbers. To my mind domestic violence is always violence, irrespective of whether it is by a man against a woman, a woman against a man, a man against a man or a woman against a woman. We need to bear that in mind in our use of language when discussing the matter.
The Minister of State said that a number of the offences listed can be prosecuted under other legislation, which is true. However, it is also true that offences in the UK include offences prosecutable under other statutes. Rape, financial abuse, threats to hurt or kill or criminal damage are all matters that are susceptible to prosecution under other statutes in United Kingdom law and yet these matters survive in the list that is appended to the legislation. Therefore, this duplication does not seem to worry the United Kingdom. We have an example we can look to and it seems to call into some doubt the Minister of State's attitude on this matter. I ask him to reconsider that in light of the United Kingdom experience.
I have listened very carefully to what the Senators have had to say. It is very clear that a definition of domestic violence is complex and lengthy. Senators will agree it is difficult to be inclusive of all behaviours because it is difficult to anticipate the ingenuity of the human mind to devise new ways to inflict cruelty on others. That is one thing.
I draw Senators' attention to line 33 on page 8 of the Bill. This is repeated for the different orders and states:
Where the court, on application to it, is of the opinion that there are reasonable grounds for believing that the safety or welfare of an applicant or a dependent person so requires, it may, subject to section 11, by order (in this Act referred to as a “safety order”) prohibit the respondent to the application from doing one or more of the following:
We have a very broad definition in there. It covers everything - safety and welfare. The amendments seek to be more prescriptive by having a list. I have a completely open mind on this. Senator Norris made the point that obviously it is mainly women who are impacted by violence of this kind and only a small number of men. I remember a very interesting presentation to the Joint Committee on Justice and Equality on the issue of controlling behaviour, grooming of victims, etc. It was really frightening stuff.
There can be a risk of counterclaims of domestic violence and especially of coercive control being made by perpetrators to undermine the victim's case. I also ask Senators to reflect on the difficulty of meeting the standard of proof required to secure criminal convictions, which is a different standard from that for civil convictions, as we know.
I will not promise to Senator Higgins that I will come back with a definition. However, we are seriously looking at the definitions of domestic violence and coercive control. If it is possible we will come back with some proposals and if the advice from the Office of the Attorney General and others is that is the way to go. I will not go down that route.
However, I point out that the Bill already contains a broad definition on page 8 and it continues in other sections also. I am sympathetic to the points made. Let us see how we can tease this out.
Report Stage is coming up; I am not sure when that will be. It obviously depends on when we finish Committee Stage and we need time between Committee Stage and Report Stage, especially for a Bill like this. We do not need a lot of time; I am as anxious as everybody else here to get this passed into law and it needs to go through the Dáil anyway. I ask Senators to reflect on the points I have just made and not to press the amendment because if we find issues with it, we will have to undo it later on which is even more difficult. It is easier to insert something that is correct from day 1 rather than change it later. The Senator should not press it at this time, but take my commitment that we are looking at it seriously. As requested, we will engage with Senators on the definition.
We want to ensure it will work and do what it is intended to do. There is a technical problem anyway, but I do not want to use that. I am more interested in substantive reasons. I am very open to this. Let us engage on it in the meantime and see if on Report Stage together we can come up with something that will work. I am not making a promise now on this because I cannot do that at this stage. I promise we will look seriously and sincerely at it to see what we can do to address the intention behind the amendments. I ask for more time to consider it further.
With reluctance we are withdrawing it for now, but we will reintroduce it on Report Stage. We will hold the Minister of State to his commitment.I am very torn about this because of its importance. I know it is hard but many things are hard and we can get our heads around this. We are withdrawing this for now but we reserve the right to bring it back on Report Stage.
I move amendment No. 3:
In page 8, between lines 2 and 3, to insert the following:“5. (1) In determining for the purposes of this Act whether or not to grant a relevant order,the court shall have regard to all of the factors or circumstances that it regards as relevant to the applicant concerned and his or her family.(2) The factors and circumstances referred to in subsection (1) shall include but is not limited to a list as devised by the Minister.”.
I will speak on amendments Nos. 3 and 4. Amendment No. 3 is a requirement for the other amendment and is presupposed by them. The other amendments, though slightly different, are very much in the same ball court and address very much the same issues. It is an indication of the degree of concern felt by my colleagues that they tabled these amendments with only very slight differences. My amendment is the longest and thus perhaps the most exhaustive. We have addressed the problem the Minister looked at in the previous amendment because this makes it absolutely clear that this is not an exhaustive list. "The factors and circumstances [...] shall include but is not limited to" the list still left at the Minister's discretion.
Amendment No. 3 is necessary for the other amendments because it states "in determining [...] whether or not to grant a relevant order, the court shall have regard to all of the factors". Without this amendment, which is quite a simple one, there would be no relevant context to the factors to be considered. To a certain extent they would be left floating around in mid-air.
I do not wish to test the patience of the House but this is a complex matter and one of considerable import to the operation of the Bill. With the indulgence of the House I would like to quickly go through the factors in amendment No. 4 that might be considered under sections 6 to 10. It proposes a new section 5(1) which provides "On any application for an order under sections 6, 7, 8, 9 or 10, the court shall have regard to the following when deciding whether there are reasonable grounds for believing that the safety or welfare of an applicant or a dependent person requires that such an order be made". Thereafter follows a list, which is itself of interest. First, it includes "any history of violence by the respondent against the applicant". In other words, if there is any background that shows that this has happened in the past and if this is a pattern. If there is a pattern then it is likely to be repeated in the future. Court action is therefore required to prevent that occurring.
The court also will have regard to "(b) whether any violence by the respondent against the applicant or any dependent is repetitive or escalating". This, again, is interesting. It continues the idea of repetition, which is implicit in the first factor, but also contains the idea of escalation. We all know from the history of murder in these islands that very often a situation obtains involving a series of physical attacks that start at the lower end, get increasingly dangerous and end tragically in the murder of the victim. It is absolutely vital that the whole question of repetition and escalation be considered by the court if it is to avert tragedy.
The court also must consider "(c) whether any psychological violence by the respondent of the applicant constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the applicant by the respondent". Acts are not, in other words, seen in isolation. They are not considered on their own but rather as part of a pattern. If that pattern is sinister then the court intervenes.
The court also will have regard to "(d) the current status of the relationship between the applicant and the respondent, including any recent separation or intention to separate". Regardless of Garda or British police statistics, anybody who watches crime drama on television or reads reports in the newspapers will tell you that what very frequently triggers extreme violence, including murder, is a separation. We have recently had several cases in the Irish courts where young women told young men that their relationship was over. Within a matter of days these women was dead. There is a clearly detectable pattern there. The current status of the relationship and whether there is any suggestion of breaking up is important.
The list of factors also include "any circumstance of the respondent that may increase the risk of violence by the respondent against the applicant or any dependent, including substance abuse, threats of suicide, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of serious violence including lethal violence, against the applicant and/or others, including violence against family pets or other domestic animals". Those are circumstances which would lead a court to entertain the gravest concern about the welfare of the applicant.
We then move the focus slightly and take in the applicant herself, or in some limited circumstances, himself. The proposed section 5(1)(f) refers to "the applicant’s perception of risks to his or her own safety and security". This is because the person best able to assess whether they are in danger is the person who is being threatened. In most circumstances nobody else, except perhaps an unfortunate child, has been a witness to this situation. It is very important that the point of view of the applicant be taken into consideration.
The proposed section 5(1)(g) refers to "any circumstance that may increase the applicant’s vulnerability or any dependent’s vulnerability to violence from the respondent, including pregnancy, age, family circumstances, health or economic dependence". These are further characteristics to be considered. The use of violence against a pregnant woman, for example, is much more serious than violence against a healthy woman who is not pregnant. Violence against a pregnant woman could very easily lead to the loss of the child. When it comes to the question of age, we all know that older bones are much more brittle and that elderly people are more susceptible to the breaking of limbs than a person in the full flush of youth.
The list also includes "(h) the accommodation needs of the applicant and any dependent(s)" and "(i) any evidence of deterioration in the physical, psychological or emotional welfare of the applicant or any dependent which in the opinion of the court, was caused directly by the behaviour of the respondent". This creates an opening for the direct observation of the judge. The judge can look at the applicant and it may perhaps be the case that the applicant has been in court on a previous occasion. The judge will thus be in a position to say if there was a significant decline between occasion A and occasion B. It may also be the case that the applicant enters court displaying bruises or contusions or is wearing a sling, a bandage or a plaster. This, again, is calling in another element, namely the observation of the judge.
Finally, the list includes "(j) whether it is appropriate in the circumstances to make any order under section 14"and "(k) any other matter which appears to the court to be relevant to the safety and welfare of the applicant and any dependents". This is a catch-all phrase.
With regard to the violence referred to in the proposed section 5(1), the proposed section 5(2)(a) states "a single act by the respondent against the applicant or any dependent, may amount to violence". It may have just been one act, it does not have to be a pattern. A number of acts constituting a pattern, however, is more significant. Under the proposed section 5(2)(b), "a number of acts by the respondent against the applicant or any dependent, that form part of a pattern of behaviour may amount to psychological violence for that purpose, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial."In other words, a slight physical altercation might not be considered a serious offence, but if repeated consistently it becomes not just an act of physical terror, but also an act of psychological terror, and the witnessing of this by children is always terrifying to the child.
The proposed section 5(3)(b) states "'psychological violence' includes" - and we give a list there. I will not go into it. The proposed section 5(3)(c) then provides "whatever order is made or not made on the application for an order ... the reasons for making it or not making it and for making it subject to conditions, if any, should all be recorded by the court and a copy of these reasons should be made available to each party". That is fair. If a court is going to make a decision, it needs to record it and transmit those reasons to the interested parties. The proposed section 5(4) goes on to provide:
The court shall also have regard to the following factors when deciding whether there are reasonable grounds for believing that the safety or welfare of the applicant or dependent person requires that such an order be made:(a) any immediate risk of significant harm being caused directly or indirectly by any kind of violence by the respondent against the applicant or any dependent if the order is not made immediately.
In other words, immediate intervention may in many circumstances - not just in some - be essential to the welfare of the applicant. The provision continues by specifying the court shall have regard to "whether any previous orders under the Domestic Violence Acts have been made against the respondent". Again, we are looking here at the court establishing whether there is a pattern. If there has been a pattern in the past, one can with reasonable justification predict that matters will escalate and it is the interest of the court to ensure that this escalation does not take place. The court also will have regard to "(c) any criminal proceedings for violence against the respondent, in respect of the applicant and/or others, pending or concluded, as far as known". Again, if there is a list of pending prosecutions, or even one example of a pending prosecution, for violence by the defendant against the applicant, that surely must be taken into account by the court. Finally, the court will have regard to "(d) any violence by the respondent against the applicant and/or any dependent children, which is recent, repeated, and/or severe, including attempts at lethal violence against either the applicant or any dependent". This is self-evident. If there has been an attempt at lethal violence - if the defendant has attempted to kill the plaintiff - surely to God, that is a very good reason for the granting of such an order.
I am sorry to have taken so much time but it has been worthwhile to explain in some detail the reasoning behind these amendments.
I agree with Senator Norris that this group of amendments can be considered together. They make the case for having statutory guidelines and further set out in detail what those guidelines should be. The amendments will provide judges with a clear checklist they will have to consider when making an order under the Bill. This group of amendments seeks to fix a very real problem, that is, the lack of consistency. One can appear before one judge who will have one set of interpretations and one can appear before another with a very different outcome. Organisations such as SAFE Ireland that work at the coalface report time and time again that cases with very similar facts have very different results. We should not allow this situation to continue and the Bill is an opportunity to put it right. We must give judges legal terms and all involved clarity as to the factors that would be considered when an order is being made under this Act and confidence to act.
The amendments I tabled were advised by SAFE Ireland and they provide an alternative opportunity to define "domestic violence". While Members went through this in the first grouping of amendments, in a way this is another bite of that cherry for once and for all including psychological abuse and coercive control in the definition, going beyond physical abuse as a form of domestic violence, as Senator Norris said.
It is probably good we have some time because we have the expert, or one of the leading experts in the world, in this field coming to Dublin next week. I refer to Dr. Evan Stark, who will be in Croke Park on Tuesday. For the information of those who cannot make it to Croke Park, he will also come here. I am sponsoring his visit with SAFE Ireland. It would be great to see the Minister of State, his officials, all present here and all others who might be looking at this work in the Dáil at a later stage. As the Minister of State said, when one listens to experts, when one delves into the depths of what such psychological abuse consists of day in, day out and year in, year out for victims and when one sees it is often the thin end of a very violent wedge, one understands these are not separate but are part of the same pattern. When someone puts a person down, the latter might say, "Ah, well, I can get over it," but the former person is taking a liberty with the other person. He or she is saying, "You are not equal to me and you are not that important." We therefore need steps that go further in respect of the limiting of a person's freedom and views as to how people behave and how they go about their business. Last year, when a person tragically took the lives of his spouse and children, everyone was at pains to say he was lovely and an upstanding member of his community. This may very well have been the case, but it is possible that he was not the same nice person behind the doors of his own house because such acts do not happen ordinarily. There are mental health issues at stake but that still does not give a person the right to put a person down, be abusive or commit such acts.
SAFE Ireland has put considerable work into these amendments and has advised that the Labour Party's amendment is probably the best worded. I think we would all be open to looking at that amendment as the one we would-----
Yes. We would be open to that, again, once the Minister of State can give us an assurance that this will be looked at seriously and genuinely and that he is not just open-minded but committed to looking at this on Report Stage.
As Senators Norris and Kelleher have already indicated, amendments Nos. 3 to 6, inclusive, are very important, practical amendments which seek to insert into this welcome legislation provisions for statutory guidance for judges in the making of orders under the relevant sections. There has been serious concern about inconsistency among different judges, particularly in the District Court, in how they exercise discretion and the lack of availability of statutory guidance. I note the Law Society's own recommendation as long ago as 1999 advocating that the provision of detailed statutory criteria to guide judicial discretion should be adopted and that it is already an approach adopted elsewhere in family law through the Judicial Separation and Family Law Reform Act, the Family Law (Divorce) Act and so on. We might now add the Children and Family Relationships Act to that list. We should now have good practice in setting out structured guidelines for district judges in exercising criteria. This is particularly important when we are talking about orders such as safety orders, protection orders and barring orders because we know there is a divergence in practice in this regard and that district judges and practitioners refer colloquially to applicants having to reach a bar or threshold before they will satisfy the judge that an order may be made. There is no such bar or threshold. I remember people talking about this when I was in practice. I understand this misleading expression is still being used now; yet judges do not have available to them any statutory criteria to guide them.
Amendments Nos. 3 to 6, inclusive, all seek to do the same thing, that is, to provide some structuring to judicial discretion. It is a hugely important principle. I ask the Minister of State again to express an indication as to whether he is willing in principle to accept the need for such a provision and then to come back to us on Report Stage, having considered the wording of all these amendments, which are all very similar, and to tell us whether he is willing, as I said, to enact one of them in principle or even an amalgam of them. I am grateful to SAFE Ireland, which has indicated its support for our own version, namely, amendment No. 6. SAFE Ireland says it is its preferred framing of the statutory guidance because the order in which it is laid out is clear. In amendment No. 6 we seek to provide the definition of "domestic violence", essentially, which we have already debated, and the inclusion of which was also sought in amendment No. 1.We have tried to do this within one section because it is a sensible approach.
Amendment No. 6 seeks to insert a new section 5 at the start of Part 2, which deals with court proceedings. It provides for the making of a safety order, barring order, interim barring order, emergency barring order and protection order. We seek to re-enact the orders that exist under the 1996 legislation. The new section 5(1) to be inserted by the amendment reads:
Where a court is deciding, on an application for an order under sections 6 to 10, whether there are reasonable grounds for believing that the safety or welfare of an applicant or a dependent person requires that an order be made, the court shall have regard to the following considerations ...
All of that is prescriptive. The amendment outlines a list of considerations that the Law Society and SAFE Ireland have outlined in similar terms. Senator Norris has gone through them already. Essentially, they are the same.
We are all aware of the evidence and the literature that shows there are circumstances that may increase an applicant's vulnerability such as pregnancy and health or economic dependence. There are issues that may lead to the deterioration of the welfare of the applicant or dependent person. There are accommodation needs that should also be considered. We have compiled a sensible list. We have also provided that where the court is considering an emergency barring order or protection order, that is in order under section 8 or 9, that the court shall also have regard to four further considerations, including the immediate risk of significant harm. Again, these are sensible measures.
The new section 5(3) contains a list of defined provisions beginning with the following, "(a) "violence" includes physical, sexual or psychological violence." We inserted the definition because we are aware, anecdotally, of court proceedings where judges appear to suggest that only evidence of physical violence is what is required in order for an applicant to satisfy the court that a particular type of order should be made. Clearly, that is wrong. At present, there is no statutory provision that clearly sets out for judges that violence must include physical, sexual or psychological violence.
The amendment continues with a definition of psychological violence. We made further points about issues that are contentious in court practice about whether a single act is sufficient or whether there needs to be a number of acts. We have outlined different provisions which are sensible and which provide important structured guidance for judges.
Finally, the new section 5(4) states, "the reasons for the decision of the court shall be recorded by it in writing. This would be a much better practice. We recognise that in all of these important decisions.
I, too, commend amendments Nos. 3 to 6, inclusive. A lot of what I was going to say has been said so I will not rehearse it.
Amendment No. 3 contains an important addition in the context of the phrase "that it regards as relevant to the applicant concerned and his or her family". Senator Norris has eloquently outlined the reasons the provision is necessary.
The new section 5(1)(f) to be inserted by amendment No. 4 contains the phrase "the applicant’s perception of risks to his or her own safety and security". The use of the word "perception" is critical. We have already touched upon the notion of - and I hate even saying the following because I cannot think of a better term - the traditional understanding of domestic violence. What passed for domestic violence in the past is changing because of changes in the world around us and in how the people in society interact and engage with each other, whether it is through more known and understood forms of abuse, coercion, intimidation or violence or, indeed, whether it is the victim's perception due to the use of new technologies, Senator Norris referred to revenge porn, its impact on people and the fact that it is a form of abuse. The word "perception" would be an important addition.
The word "coercion" is used in the new section 5(3)(b) to be inserted by amendment No. 4. We have had a very worthwhile discussion on what constitutes coercion and how it impacts and sits within this sphere. There is merit in making coercion a specific criminal offence. The provision is not necessarily a matter for this debate but, as this legislation and the debate on the issue to which it relates move forward, it is becoming increasingly clear and understood that coercion is a pointed and sharp edge of domestic violence and how it manifests itself.
I support the amendments and Sinn Féin commends them to the House.
These amendments are similar to what we discussed earlier in some ways. I fully appreciate what Senators have attempted to provide for in their amendments. They seek to provide guidance for the courts when considering applications for orders. In attempting to help the court reach a determination on whether a domestic violence order is appropriate, the factors that Senators propose to prescribe might run the risk of fettering judicial discretion. We all agree that this is a very difficult process for applicants and victims, so the last thing that we should do is further complicate it, make it more stressful or prolong it for the applicant in any way. We must be careful not to do anything that might do so. The amendments demonstrate the complex nature of domestic violence. As I said earlier, the human mind can conjure up ingenious ways that we might never be able to list.
Amendment No. 3 proposes that the Minister for Justice and Equality devise a list of factors and circumstances that the courts would be required to consider. This amendment would give rise to operational difficulties in that it does not set out any policies and principles to guide the Minister in formulating the list. Neither does the amendment specify the legislative status of the list. It does not provide for the list to take the form of a ministerial order or regulations. These are important technical issues. Before we go any further, we would have to figure out whether it is a regulation or ministerial order and then the underlying policies and principles to guide the Minister in formulating a list. The provision gives the Minister a lot of discretion.
Amendments Nos. 4 to 6, inclusive, seek to prescribe a list of factors that a judge hearing a domestic violence case must consider in reaching a decision in a domestic violence application. Further, the proposed amendments attempt to define what constitutes violence and psychological violence. The amendments go on to include additional factors that a court must consider when deciding applications for an emergency barring order or a protection order. The bulk of domestic violence cases are dealt with under the summary jurisdiction of the District Court. In deciding whether to grant a domestic violence order, the court has very wide discretion. The threshold for the granting of an order is that the court is of the opinion that there are reasonable grounds for believing the safety or welfare of an applicant or a dependent person requires an order. As a result, the discretion is very wide. I think this is appropriate because it is sufficiently broad and does not restrict the court in determining what is relevant in deciding a domestic violence application. The discretion is very broad and everything is included.
There are so many factors that could cause a court to consider that someone is in danger. I want us to be careful in limiting the court's discretion or independence on this complicated matter. Everything is covered already because section 6(2) includes the phrase "there are reasonable grounds for believing that the safety or welfare of an applicant or a dependent person so requires". As matters stand, an applicant can put forward to the court any factors he or she considers relevant to the application. The judge will consider each case on its merits and make a decision based on all of the evidence put forward. There may be factors involved that we may not have considered at all here. We already have a very open provision.
I have been advised that including a list such as that proposed runs the risk of creating a lawyers' charter that would involve arguments on both sides. In itself, the latter would run the risk of prolonging cases. Again, I return to the difficulty involved in drawing up an exhaustive list of behaviours that constitute domestic violence. I argue that everything has already been covered in the legislation because the provisions are very broad. As already stated, the legislation provides that an order may be granted where "there are reasonable grounds for believing that the safety or welfare of an applicant or a dependent person so requires".I have tabled an amendment which will deal with one aspect of the proposed amendments Nos. 3 to 6, inclusive. Amendment No. 35 proposes to require the court to give reasons for decisions to grant or refuse applications for orders, including reasons for a decision relating to exemptions or conditions to which the order is subject. I understand the intention behind the proposed amendments, given the complexities, the possible delays that could arise in arriving at a decision and the wish to retain wide discretion for judges hearing these cases, but I am proposing that we should not put forward those amendments now. As Senators have requested, as with the issue of control, I am willing to examine further the text of all the amendments tabled on this issue and the important points made by Senators during the debate. I will again consult with the Attorney General and the Parliamentary Counsel on these matters and see what amendments could be proposed on Report Stage.
One could say that a list imposed by statute may not give rise to consistency in outcomes, given the different perceptions of different judges but the Chief Justice has informed the Tánaiste that the Judiciary has received training or information on domestic violence cases. It is quite important that this happens. The importance of an independent Judiciary is a cornerstone of our democracy. Nevertheless, the Judiciary is not blind to the menace of domestic violence and the requirement of an appropriate response. We are aware that members of the Judiciary are very aware of the needs of victims. There are arguments for and against, but I am willing to examine further the text of all the amendments and I am cognisant of what we discussed earlier regarding definitions and listing and so on. There are risks, if there is a list in the legislation, that it could become prescriptive in some way although I take Senator Norris's point that one could include a catch-all phrase, stating the list is not exhaustive.
If there is a specified list, however, could the argument be made that it could become in some way or another predominant? The way the Bill is drafted at present means it is very open. An applicant can bring any issue he or she wishes to the court's attention and it is very broad. I have listened to what Members have said and we will take those points away and go through them. We can engage again with Senators and possibly come back on Report Stage, if that is the advice, with proposed amendments.
I thank the Minister for his response. I am very concerned about the direction the debate is going. The reason I am concerned is that each and every one of these amendments has been informed by what survivors of domestic violence and abuse are saying they need to protect them and to ensure their safety. It seems that we are saying that is too complex to be done. I am really concerned about the timeline on when this will be implemented. I am concerned that we will pick it to pieces so much in trying to get a perfect Bill. The survivors of domestic violence are not saying they need a perfect Bill, but they are saying they need a Bill to protect them. We need to listen to them, and the Attorney General needs to listen to them.
I am concerned when the Minister states that the Judiciary has discretion because my experience, and the experience of many women with whom I work, is that some absolutely appalling decisions are made by some members of our Judiciary. If training is being provided at present, that training is not effective. It is not teaching the Judiciary the dynamics of domestic violence. The complexity is in the dynamics, in the behaviour of the perpetrator and the power and control he or she exerts on his or her victim. I hate using the word "victim". We need to listen to the survivors of domestic violence. It is written all over these amendments. There are others who are not here because they have lost their lives through domestic violence. We need to speak for those people as well.
I am also getting a little bit worried because we are being told by the Minister of State to live horse and we will get grass - do not push the amendment, let us leave it and I will consider it. I can envisage that, even with the best will in the world, the Minister of State will come back and rabbit through the Bill on Report Stage, where we only have one opportunity to speak. I accept that the Minister of State is decent and that he has a real concern about this area, but there are anonymous forces operating behind the scenes.
I have already addressed the Minister of State's main difficulty in amendment No. 3 by inserting the following phrase in section 5(2): "The factors and circumstances referred to in subsection (1) shall include but is not limited to a list as devised by the Minister." That could not be clearer. This is by no stretch of the imagination an attempt to create an exhaustive list. How could it be? The wording plainly states that it is not. That argument is gone.
The Minister of State speaks very glowingly of the intricacies of the criminal mind and its capacity to invent circumstances not contemplated by legislation. I wonder if the Minister of State could give us an example of that? Is there an example of which we have not heard, where the criminal mind's ingenuity defeats the intelligence of the Oireachtas? I challenge the Minister of State to give me such an example. He is smiling broadly. I am not sure whether that means he has one in his back pocket. If he has, then let us include that in the list.
I am sure we will have it and let us just shove it in the list - the more the merrier.
The Minister of State is then agonised about the possibility that this list might become predominant. Of course, it will. That is the whole point of it. There would be damn all point if it was not going to be predominant. This is the product of the experience of victims, female and male, of domestic violence. This is what their experience is telling us. Of course the list will be predominant. These are the issues that come before the court day after day.
Then we have the point that there might be argumentation between learned counsel in the courts. The Minister has said that everything is included already. The phrase "everything" is a pretty broad menu for legal counsel to get their teeth into so I do not see any difference nor do I see why there will be more legal argument because we have this list. In fact, there might well be less, because people will check things off the list and there will be less to argue about. What one argues about is a lacuna, about what is not there. I look forward with great interest to the Minister of State's example and if we have a revised amendment put before the House on Report Stage, we will certainly do the Minister of State the courtesy of including any further examples that he wishes to lay before the House.
I wish to make three brief points. I am concerned to hear the Minister extolling the virtues of broadness in this context because that is the precise difficulty. Judicial discretion at present is so unstructured and we have a real problem with inconsistency and divergence of practice. This is a problem identified, as the Minister of State has heard, not only by NGOs such as Safe Ireland, which works with survivors and victims on the front line, but as long ago as 1999 by the Law Society. I have quoted their concern expressed then that there was considerable divergence among District Court judges in the exercise of their discretion. There is a real concern and the idea of introducing a form of statutory guidance is precisely the way to deal with that and to deal with broadness. One does not lose the divergence.
Senator Norris has referred to his formula in amendment No. 3, but all the amendments include the phrase that the court shall have regard to "any other matter which appears to the court to be relevant to the safety and welfare of the applicant and any dependants". The Law Society has recommended "any circumstance which might increase the applicant's or dependant's vulnerability to violence". There are a number of ways one can keep the merit of a broad approach, including a reference to any other matter which appears relevant to the court. That is important, but it is included already in any one of the amendments that we have put forward. That guards against the problem the Minister of State has identified of narrowing the criteria or making the guidance too restrictive.
The third observation I would make is that when I practised in the area briefly some years ago in Dolphin House, the physical setting where these matters were dealt with in Dublin was desperately inadequate and remained so.I was delighted to hear the Tánaiste speak on Second Stage about the new courts complex which is coming on stream at Hammond Lane. There are great plans for that which will really improve the physical venue where many of the domestic violence applications, certainly those in central Dublin, are made. It would be a shame if we were to improve the physical environment and yet retain so much discretion for judges that applicants coming forward would still be faced with ongoing uncertainty as to whether their applications will be granted or what the criteria are. It is a real problem that we are still faced with this divergence in practice which was identified long ago.
I join others in expressing my disappointment. Due to the Minister for Justice and Equality's, and indeed the outgoing Minister's, work and background in this area, I had expected that we would be hearing variations from the Government in terms of the proposals on how this should be dealt with. I am very surprised to hear a message which seems to say that things are working fine, we should not worry and there is already enough scope and discretion. That discretion is exactly what was described by my colleague, Senator Colette Kelleher, when she spoke about the radically different outcomes we see from similar circumstances in different cases. We do not even need to look to the patterns of judgements, sometimes coming from particular judges, which seem to be contrary to what we might understand of domestic violence.
These proposals give guidance and clarity and ensure certain things are considered. It does not introduce a criminal burden of proof. In this particular section we are talking about applications for orders. It is not true or accurate to suggest there will somehow be a huge and prolonged debate in this area. We will not have a situation where certain judges may give a very narrow definition of safety and welfare. They may simply look to whether an applicant's life is in danger and whether the welfare involved is purely financial or whether it is physical, while neglecting that wider definition. These are very useful proposals.
As I said, there is support right across this House. Everyone has put forward proposals on this. There is also a generosity in this House. For example, we are happy to concede that the version which has been put forward by Senator Bacik is an improvement on our version and is a better version. We are happy to work with that. If the Minister of State were to come to the House with a proposal which was meaningful and which substantially engaged with these issues, I believe he would find this House willing to work with him. Instead, he is putting forward the frankly unacceptable position that a very wide and broad interpretation of safety and welfare, which is subject to the views of whichever judge may be sitting in the chair that day, is sufficient. Looking to these very concrete proposals around repeated patterns of behaviours, the particular vulnerabilities of a victim and how they might be exploited, and the particular factors of vulnerability which have been mentioned, these really concrete, positive proposals will help any judge in making decisions.
I expected the Minister of State to come in with an amendment, a promise or an intention towards an amendment which would put forward his proposal, and if it was a better proposal, this House would have worked with him. If he is saying that the status quomight work as it is or that it is working, we know that is factually not true. We know it is not working and that it is not adequate. I ask the Minister of State to do better in his response to us in this House.
I acknowledge the sincerity and the work which has gone into these amendments. I have said that I wish to examine further the texts of all the amendments tabled on this issue and to take into account the points which Senators have made during the debate. We are in consultation with the Attorney General and the Office of the Parliamentary Counsel on this matter. There are two issues under discussion. First, we are talking about putting forward lists of criteria. Senator Norris made the point that each proposed list contains a reference to any other matter which appear relevant to the court, so the catch-all provision is there. Senators challenged me about lists earlier. The Senator himself indicated that there was something missing from one of his lists which he spoke about. I believe it was about someone being outed for being gay. He said that should be in there as well. The Senator himself has given an example of something that was missing from a list.
I think we run a risk with the lists. There are arguments for and against what is proposed here. I have an open mind on it. I want to go away and consider it further. I am concerned about suggestions that we might have to limit the discretion of judges. We should not be doing that.
The point about judges receiving training and education is important, but I would like to caution about limiting discretion. There may be issues that might arise, and which might be brought before a court by an applicant, which might not be covered here, even with the catch-all provision. I ask for the indulgence to take an opportunity to study this further. We are in consultation with the Attorney General. I regret that we did not have a better amendment to bring forward, if we were going to bring forward one. I know it would have been better if we had. The best I can do is to say we are looking at it and we are examining it. We have brought forward many other amendments to the Bill to try to improve it and we have taken many issues into account. This was not one of them. At this stage, we are still working on it but I was anxious to hear what Senators had to say on these issues today. I now have that information so, with the permission of the House, I will take that away, spend some time on it and come back on Report Stage.
With respect to the progress of the Bill, the legislative process is what it is. There is a Committee Stage and a Report Stage, then it will have to go to the other House. I am not in charge of that but I do not wish to delay the process at all. That is not the intention. I am anxious to get this legislation on the Statute Book as soon as possible, as is everyone else here.
I ask that we take the time to hear what the Attorney General and the Office of the Parliamentary Counsel have to say on these issues and to come back to see whether including a list would help in some way, without limiting discretion. Perhaps "focus" is the word we are thinking of. Perhaps that is what we are looking at: focusing more than limiting. We have to leave discretion and we have to leave it as broad as we can. I take the point that leaving something very broad can perhaps lose focus. I believe that is the point that is being made. We must trust our judges as well, however, and trust that they are doing their best with what they have. I take Senator Bacik's point about Hammond Lane. That will be a big improvement in respect of the physical surroundings of the court for family law and matters such as this.
I thank the Minister of State for his constructive comments and for indicating that he has an open mind on this. This is very much a constructive engagement. All of us here, on Second Stage and since, have expressed a warm welcome for this much-needed and progressive legislation. It brings to mind the debates we had in this House on the Gender Recognition Bill 2014, which was also a much-needed and much-welcomed Bill but which was greatly improved through the constructive engagement of non-governmental organisations, NGOs, stakeholders and Members of the Oireachtas with the Minister and officials. There are many other examples but that is a recent one. I believe that is what we are seeking to do here, to ensure the Bill brings in best practice.
There have been very clear indications from those on what we might call the front line - practitioners, NGOs and survivors - that what is needed is some sort of focusing, as the Minister of State has put it, of the discretion of judges. The phrase I used was structuring the discretion of judges. I agree with the Minister of State that the word "limiting" is not accurate. That is not what we seek to do here. Looking at the list of criteria set out in any of these amendments, they are not limiting because they include reference to any other matter which appears to the court to be relevant. They are therefore clearly not seeking to limit the discretion of judges in deciding whether to grant an order. Rather they seek to structure that discretion or focus the decision-making process in order that, as one practitioner put it to the Law Society in 1999, it would be easier for practitioners to advise clients on the issues to be considered by the court when deciding whether to grant a particular relief. In a practical sense, it could lead to a much more efficient and effective use of the court process.
Through SAFE Ireland and talking to survivors directly, we hear agonising, traumatic experiences from women, and it is mostly women, although I take Senator Norris's point.
Yes. We hear from applicants who are deeply traumatised by the length of time it takes to go through court processes, the multiple times they may appear before the courts and the lengthy delays between court hearings in hearing applications for orders. There is real concern about a lack of consistency and exercise of discretion by judges which is too unstructured.
Judges have spoken about the lack of guidance, and the Law Society's recommendation was about legislative guidance by way of criteria on the factors to be taken into account by a court hearing an application for any type of domestic violence order. That is what we are seeking. It is very clearly coming from a range of interests and stakeholders. It would improve the quality of the decision-making process in this very important area and would improve the Bill, if the Minister of State was to give consideration to it.
For the purposes of clarification, I have never spoken and I do not think people here are speaking about limiting discretion. It is important to be very clear. We are saying that wide discretion alone does not necessarily always capture some of these issues. When we speak about there being discretion, we can assume that all issues will be captured. The Minister of State referred to focused guidance in terms of the Law Society, which has spoken about legislative guidance.
There are cases where there needs to be indications of things which may be considered along with whatever other issues a judge may consider to be appropriate. That is very clear in each of these proposals. I am worried because there is constant reference to a list. I worry that those reading the Official Report would believe a long list is involved. This is not some type of abstract brainstorming session.
Each of the items put forward in these proposals and the issues for consideration are wide. They reflect the expertise of those who have been in the courts and worked with people who have experienced violence and who are trying to access essential orders in respect of their safety and welfare. This is a representation of the knowledge and concrete experience we have. It is not a case of having an active imagination. Rather, the proposals are all based on evidence and the real experience and practices in our courts. They are useful and involve legislative guidance. They do not compromise discretion. Rather, they provide information and ensure that the right questions are being considered in decisions in respect of orders.
They also allow us to identify patterns so that we learn more about this complex issue. I welcome amendment No. 35 which allows for judges to indicate why they have made their decisions. If they are indicating why they have made decisions and what they have found or considered in respect of the kind of issues identified in the list, that combination is powerful for us because it allows us to see that in X number of cases judges found an extreme vulnerability was being exploited and in Y number of cases judges mentioned their concerns about repeated patterns of behaviour. We will learn more about this issue, which will help us to tackle it as a society.
I urge the Minister of State to come with a proposal in respect of this area which will be complementary to amendment No. 35 and allow the expertise and real-life needs that we have heard about from those working in this area to be reflected in every process, wherever it may take place in this country.
I know there are only about five minutes left in the debate and I propose to occupy as much of it as I possibly can. I hope my colleagues will do exactly the same for a very practical reason, namely, that I would like the Minister of State to have the opportunity, before we conclude this amendment, to withdraw or vote on it. I do not feel like voting on it today because I would like the Minister of State to give us his thoughts on the matter.
I would like to ask the Minister of State a question. Does he have any idea of the timeframe within which the Attorney General's advice could be secured? Is it likely to be within a matter of weeks?
It is unlikely to get through. There is no enormous urgency in the House. We can reach the deadline of 7 p.m. I have spoken to the Leader, who was under the impression that the debate was to terminate at 6.45 p.m. However, we are in the hands-----
-----of the Acting Chairman and he has authoritatively ruled that the termination time is 7 p.m. I wish to make some observations. My beloved constituency colleague, Senator Bacik, said her amendment is by far the best and that all of the authorities-----
I certainly will not acknowledge it. I believe my amendment is infinitely the best and was the first in, so sucks boo to Senator Bacik.
The Minister of State said he sees the arguments for and against the amendment, has an open mind and is working on it. That is great. The Minister of State only gave one example, and I provided him with it.
Yes, but I did not ask for one that I had given myself. I asked for one the Minister of State had come up with, and he failed significantly to do so. Nobody spoke about the limited discretion of judges. Rather, we spoke about good judgment, in which I think the Minister of State and other Senators are interested. I am very happy to yield to my Sinn Féin colleague, as long as the debate continues until 7 p.m.
I will not keep going until 7 p.m. I am not at all comfortable with us not using the tools available to us here today. If we were to push any of the amendments to a vote, we would win the vote with the support of the House against the Government. It is a serious matter and it does not sit well with me that we are not using those tools. I respect the collective decision of the House not to push the amendments to a vote today.
I do so in good faith, and I have good faith that this will be done in a timely manner, that the Attorney General will realise that and the Government and Taoiseach realise we have not pushed the amendments to a vote today specifically because we trust the Bill will be addressed in a timely and efficient manner. We will be back here in September. There is nothing surer than that somebody else will have lost his or her life through domestic violence. That is a very heavy burden for us to carry going out of here today.
Senator Conway-Walsh has brought the matter back to the serious issues we are discussing. None of us wishes to delay the Bill. We are all very cognisant of the urgency of bringing reforming legislation forward and the need for it. I understand this is the first time the Minister of State has come to the House to deal with the Bill. The Tánaiste and former Minister for Justice and Equality, Deputy Frances Fitzgerald, dealt with the Bill. We have a new Minister for Justice and Equality and a new Attorney General, which I do not think anyone has acknowledged. We are all anxious to give time to the Government side to consult on the willingness to look favourably on the principle of these amendments.
I did not say mine was the best.Senators proposing amendments are all trying to do the same thing and we are all guided by SAFE Ireland, the Law Society of Ireland and others. It would be great if the Minister of State were willing to accept the amendments when he returns to the House.