Ending conversion practices in Scotland: consultation analysis

10. Civil Orders – considerations

Who would be able to apply for an order?

474. Due to the nature of conversion practices, persons at risk may be reluctant to come forward and request a protection order, so it is essential that family, friends, or a support organisation are able to apply for an order in relation to a person at risk. This is particularly important as individuals may not be aware that they are victims of conversion practices. The Scottish Government proposes that the following people could apply for a new conversion practices civil order when it is in relation to a specific person to be protected: the person to be protected, the police, a local authority, and a third party (only with leave of the court). Where a civil order is for the protection of the wider community, this could only be done by the police or a local authority.

Question 29: Do you agree or disagree with the proposals for who should be able to apply for a conversion practices civil order?

475. Responses to Question 29 by respondent type are set out in Table 15 below.

476. A majority of respondents – 58% of those answering the question – did not agree with the proposals for who should be able to apply for a conversion practices civil order. This rose to 68% of organisations.

477. Although 32% of all respondents agreed with the proposals, the proportion of organisations in support was lower at 25% of those answering.

478. The proportion of respondents who did not know was relatively high, at 10% of all respondents and 7% of organisations.

Question 30: Please give reasons for your answer to Question 29.

479. Around 3,000 respondents gave their reasons.

480. Those who did not agree with the approach were most likely to comment that the approach is too broad and would be open to abuse. This was frequently linked to hostility towards religious groups or concerns about the infringement of parental rights. For example, there was thought to be a risk that ‘lobby groups’ could use the orders to coerce parents, by threat of legal action if their parental actions do not meet such groups’ ‘ideological beliefs’.

481. Amongst those who did support the proposals, a frequently expressed view was that it is important to allow a broad range of individuals, including victims, concerned family members, or support organisations, to take action against conversion practices. Further comments included that an inclusive approach ensures that those affected by, or aware of, such harmful practices can seek legal protection and support. It was also suggested that the approach would help protect those who may not be aware that they are victims of conversion practices due to the conduct being carried out by a trusted member of their community.

A third party

482. In terms of the four options, respondents were most likely to make specific reference to the third-party option, and usually to express their concerns. They included that:

• This is the route through which activists could deliberately target faith leaders who may express a view that they do not agree with.
• The proposals allow protection orders to be requested by a third party, and then granted, even if the individual subject to the order does not want the order. ^[58]

483. This latter option was described by a Faith body respondent as ‘highly irregular’ and as giving a sense that the legislation is authoritarian and oppressive in its basic nature. They went on to comment that the outcome could be to prevent someone attending their religious services even though they wish to.

484. Although most of those commenting on the issue were concerned about the third-party provision, others were supportive. Comments included that third-party applications are essential, including because of the broader concerns about vulnerable people not being in a position to take action or approach agencies themselves. An example given was that an ethnic minority LGBTQI+ individual may have more trust in a local organisation than the police and feel more comfortable divulging sensitive information to that organisation about the harm they have faced, or are likely to face, from conversion practices.

Local authorities

485. Relatively few respondents commented specifically on the role of local authorities, but queries raised by those who did included how the role of local authorities in making applications to protect an individual at risk will function in practice.

486. It was noted that the proposals do not explain who would be responsible for making applications within a local authority, but also that Scottish social work services have existing public protection duties. There was a call for the Bill to include a requirement for the Scottish Ministers to provide guidance on this similarly to sections 5S and 5T of the Prohibition of Female Genital Mutilation (Scotland) Act 2005.

The person to be protected

487. In terms of the person to be protected, there was a call for survivors to be able to report anonymously. It was suggested that, while this may not be possible in the case of people applying for orders to be protected from family members or as individuals, in the case of reporting someone offering a service it would help survivors feel safe to come forward.

Broadening out those able to apply for an order

488. Although most of those who disagreed at this question thought the range of people/organisations able to apply for an order is too broad, some disagreed because they consider it to be too narrow. The associated concern was that this could act as a barrier, including for vulnerable people who may not have contact with a local authority and/or who may be reluctant to contact the police.

489. In terms of the types of groups or individuals to be added explicitly to an expanded list of people who can apply for an order without leave of the court, suggestions included key LGBTQI+ stakeholders and service providers, such as those offering an advice and support service.

490. Other suggestions included:

• A person who has been subjected to conversion practices by the subject of the proposed order. This was suggested as an option if the leave to the courts provision is retained.
• GPs, pharmacists, other local health and social care providers.
• Community law centres.
• Schools.
• Named persons.
• Family members of the person to be protected.

491. There was also a query about the rationale for only the police and local authorities being able to apply for a civil order to protect the wider community. It was suggested that, if this restriction is retained, the Scottish Government should provide information on how third-party individuals and relevant organisations can report concerns about a service to those with the power to apply for an order.

Question 31: Do you have any other comments regarding the civil order as set out in Parts 13 – 15?

492. Around 1,450 respondents answered Question 31.

493. There was also a particular view that protection orders as currently described will do little to protect a conversion practices survivor from the trauma of having to stand up in court. It was argued that, in one sense, they could be worse than the criminal proposals, because a person may need to go to court to obtain an order and then go to court again to give evidence if the order is breached. In light of these concerns, it was argued that the biggest failing of the proposals is the omission of non-court-based approaches to ending conversion practices. There was a call to include a route which allows reporting of conversion practices, investigation, and the power to reach agreements, led by a body with the necessary statutory powers, responsibilities and accountability.

494. It was suggested that the Scottish Human Rights Commission would be the obvious candidate for such a role, and that the necessary powers (investigatory and to reach enforceable agreements) should be given to them as part of forthcoming human rights legislation.

495. Additional points raised included a Legal body respondent noting that the consultation paper (at paragraph 182) excludes from the scope of the civil measures ‘advice, guidance and support for an individual to explore their thoughts, feelings or manage any distress and which does not direct a person towards a particular pre-determined outcome’, and also excludes healthcare services delivered ethically and lawfully. They went onto express their doubts on whether those exclusions can be inferred from the drafted provisions.

496. Some respondents noted that the consultation does not ask any direct questions about Part 16 of the consultation paper. Part 16 looks at ‘Wider recommendations’ and touches on issues such as education, support mechanisms for survivors, and research. Points raised included that:

• To be effective, police and local authority relevant personnel will require dedicated training and awareness raising information resources from appropriate/relevant LGBTQI+ entities to be able to carry out their requirements competently and effectively.
• There will be a need for capacity building and support, including funding for third-party reporting centres, particularly for ethnic minority+ communities.

497. Connected to this latter point was a query about whether culturally competent support that meet the needs of LGBTQI+ people from ethnic minority backgrounds will be available within local authorities.

498. There was also a view that collecting and analysing data around the new civil protection orders will be important. It was suggested that this will allow the Scottish Government to assess where conversion practices are being reported, how many cases proceed to civil court, how many protection orders are issued and whether those protection orders have been effective in preventing conversion practices taking place. It was also suggested that a reporting duty on ministers, such as was established through the Children’s Rights Scheme, would be welcome.